The funding question resolved in the founding generation was special allocation of public funds, not part of any broader program or category, to support the core religious functions of churches -- the salaries of clergy mostly, but also sometimes the construction of churches, or the income from glebe lands, which could be used for any purpose the church chose. That kind of expenditure was and is unconstitutional; there is no modern dispute about that.
In that environment, the principle of no discrimination in favor of or against religion was entirely consistent with the principle of no funding for religion. There were no programs of funding broad categories of private activities. Today's issue is nondiscriminatory funding of secular functions carried out by religious organizations in religious contexts. Now the principles of no discrimination and no funding squarely conflict, and we have to choose between them. And the founding generation did not make that choice. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Friday, April 21, 2017 4:52 PM To: Law & Religion issues for Law Academics Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? I have been struck this week by how almost all of the pro-state discussion of Trinity Lutheran has focused on the problem of discrimination by state funded churches (i.e., why should taxpayers fund activities from which some are invidiously excluded?). It's as if we (academics as well as informed journalists) have all forgotten the origins and justifications of no-funding rules. Madison's Memorial & Remonstrance, the classic defense of such rules, is certainly not concerned with discrimination by recipient churches. It is, rather, focused on other policies that justify separation in funding matters -- religious voluntarism (not forcing taxpayers to subsidize faiths with which they disagree or agree); the danger of church dependence on the state; mutual corruption of church and state that financial relationships might produce, etc.. As John Ely wisely wrote, the Establishment Clause is a separation of powers provision, and the same is true for the state constsitutions' no-funding provisions, including Missouri's. Of course, times have changed, and the state now provides many more forms of largesse, including funds for safe playground surfaces. So we can argue about whether it is wise to relax state-based no funding rules (the 1st A rules have already been relaxed to some extent), or whether it is fair to exclude churches from some forms of largesse. (No one is excluding them from police and fire protection). My point here is that the Madisonian understanding of church-state separation, and the no-funding rules that followed, has been largely lost. Maybe that's because the fight, so prominent from the mid-19th century until relatively late in the 20th century, about funding Catholic schools has long been over. Maybe our collective forgetfulness about the Madisonian narrative is also about the expanded welfare state, where religious communities play a huge partnership role. Maybe we now have full confidence in religious pluralism and the unlikelihood of sectarian discrimination by the state, though the continuing experience of Muslims and Native Americans in the U.S. should be a cautionary note on that one. All I know for sure is that the conversation has changed. Not even Justices Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining continuity with that tradition. When the no-funding tradition is reduced to a formal rule -- the state cannot write a check to the church -- it will soon disappear in the face of countervailing legal and political pressure. And I must add that the idea that the Free Exercise Clause, as an original matter, entitles houses of worship to equal treatment in state funding arrangements seems spectacularly unpersuasive. So let's see what our new Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity Lutheran.
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