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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