When I worked for DOJ in the late 80's and litigated a major Chapter (now I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a devout 7th Day Adventist who strongly feared government grants to religious schools would ultimately dissipate religious freedom. Many religious folks at the time held this view. I agree with Marty and Chris that this view seems to have largely disappeared.
Best, Eric Sent from my iPhone On Apr 26, 2017, at 5:03 PM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: Marty makes some good points here. It leads me back to a recurring thought I’ve had about Trinity Lutheran and Dignity Health. They don’t have much in common. But in both cases, the rationale for distinctive treatment rests on an old separationist rationale that few people believe anymore or even understand. “Separation for the sake of separation,” they will say. Marty talks about Trinity Lutheran this way and he’s right, but I think Dignity Health is strikingly similar. If Dignity Health were litigated today, and the religious exemption were requested under RFRA or Sherbert/Yoder, would it even raise a genuine issue? I assume not—I can’t see a cognizable burden on religion. Things are changing all around. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu<mailto:l...@wayne.edu> (313) 577-4046 (phone) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, April 22, 2017 11:36 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) did the Court ever suggest that direct money payments to a church would be constitutional under the Establishment Clause -- let alone that a state would be constitutionally prohibited from adhering to such a bright-line rule, something that 39 states have done for 200 or so years (Missouri's prohibition having been in its Constitution when it joined the union in 1821). (And even in the states that do not have such an express prohibition, and within the federal government, I am not aware of any practice, until very recently, of direct money grants being given to churches. The examples cited at pages 6-9 of the Orthodox Jewish Congregations brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581&sdata=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D&reserved=0> (cited by Justice Alito at oral argument) are all very recent.) To the contrary, in the most recent direct funding case, Mitchell, Justice O'Connor's controlling opinion stated that there are “special dangers associated with direct money grants to religious institutions”—a “form of aid [that] falls precariously close to the original object of the Establishment Clause’s prohibition.” And even in Rosenberger, Justice Kennedy's majority opinion stated that “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions” and that “[i]t is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.” (Both of these were, of course, in the context of "neutral" programs that did not favor religious recipients.) Chip is right that it is remarkable that not only has this longstanding Establishment Clause constraint been virtually forgotten, the Court is likely on the verge of replacing a "no funding" prohibition with a "must fund" requirement! He's also right that one major reason why this could happen is that the rationales for the "no funding" rule--in particular, Madison's church-autonomy-protective rationales--have virtually disappeared from the litigation, and from the public discourse more broadly. (Note, for instance, that in Mitchell, O'Connor refers to "the original object of the Establishment Clause’s prohibition" without mentioning what it might be.) One minor exception is the BJC amicus brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F07%2F15-577-BJC-Amici-Respondent.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581&sdata=AQNjtYnucD7Tnqs6gIEPABfb6o52GvUotej7kGih2%2Bg%3D&reserved=0> [disclosure: I consulted on it]; but its arguments, which were once so prominent in Religion Clause jurisprudence and scholarship, apparently no longer resonate with the audience that matters, including, perhaps, the author of Rosenberger, who once "recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions” and purported to be committed to "guard[ing] against this abuse.” On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. There are no cases striking down aid programs before or after that window. And even in that window there were a lot more than three pence worth of exceptions. Everson announced two principles: no aid in absolutist terms, and no person can be deprived of social welfare benefits because of his religion. The two principles turn out to be inconsistent, because any government money can be understood either as aid or as a social welfare benefit. The inconsistency accounts for the inconsistencies of the Lemon-era cases. And the social welfare benefit principle accounts for the result in Everson, and Board of Education v. Allen in 1968, and all the cases from Witters forward. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] Sent: Saturday, April 22, 2017 9:42 AM To: Law & Religion issues for Law Academics Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? A few points: 1) Trinity Lutheran has never been asked for or given its "word that the playground will be used for [exclusively] secular purposes." If it receives a grant, nothing in Missouri law will stop the church from using the playground for worship services or religious instruction. 2) In my original post, I did not claim that the Madisonian narrative behind the "no funding" rules of the Establishment Clause was correct or persuasive as an original matter. I did suggest that the Madisonian narrative was the basis for a view that held a majority of the Supreme Court from 1947 until at least 2002, and that no majority of the Court had ever repudiated. Yet that narrative has dramatically declined within public discourse -- legal, cultural, political, and journalistic. 3) Trinity Lutheran is not an Establishment Clause case. The "no funding" decision did not rest on the few and ambiguous words of the Establishment Clause. Rather, it rested on the clear and explicit words of Art. I, sec. 7 of the Missouri Constitution: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion." That is a no funding provision, and it cannot be squared with an equal funding principle. The question in the case is not whether equal funding is permissible under the federal constitution; rather, it is whether equal funding is required by the federal constitution. 4) I understand completely the normative objections to a no funding rule when the state is subsidizing public safety. And I understand the Church's arguments from the equal protection clause, and the free exercise clause, that support those normative objections. What I do not understand, and have not seen, are anything resembling an originalist argument that a rule forbidding the funding of churches violates either of those two provisions. How anyone could read the history of the 14th A, and prevalent attitudes at the time, to support a constitutional requirement of equal funding of churches is beyond me. I am not an originalist, but Justices Thomas and Gorsuch claim to be, and I will be very curious to read the originalist portions of the opinions that either of them writes or joins. On Sat, Apr 22, 2017 at 12:43 AM, Michael Peabody <mich...@californialaw.org<mailto:mich...@californialaw.org>> wrote: As to the "secular function" argument, is it truly a secular function? Churches would claim that secular functions are not religious functions but at the same time are also saying, "We are doing something that secular organizations also do, but we are going to limit access in ways that secular non-profits by law cannot." I don't know that such a position is tenable given the gestalt of the post-Obergefell age. Further, many religious elementary schools as a rule do not generally distinguish between secular and religious portions but try to provide a wholistic spiritual atmosphere in all aspects of their activities and properties. Having said this, I do believe the Court will avoid trying to figure out how secular or religious the use is, but rather take the organization's word that is is "secular." And doesn't the "secular" designation invite secular regulation? If the law required defibrillators and the state gave grants to secular institutions but denied them to religious schools that would be an entirely different matter. After all, a defibrillator has a clear purpose and can't be used for anything else. But here there is no such mandate for a rubber playground and a playground can be used for many things. On a personal note, I am a strong supporter of parochial education. I send both of my kids to religious schools at considerable expense. But I am concerned with the trending winnowing away of the religious character of these institutions if they begin to accept state funds and the state imposes hiring, curriculum, and other regulations that impinge on this character in order to protect the taxpayers' secular investment. Ultimately, I do anticipate that the Court, if it reaches the merits, will find in favor of Trinity Lutheran and accept the school's word that the playground will be used for secular purposes. Given the bakery and photographer cases, and threats to require facilities to be open to all comers, I think a follow-up round of litigation on usage will be unavoidable and given the results of the existing wedding services cases involving small businesses, it would seem that churches ought to be wary of what is lurking on the horizon if Trinity wins. Thank you for the very informative and thoughtful points and discussion. Michael Peabody, Esq. President, Founders First Freedom On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: 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<tel:(434)%20243-8546> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636288373819212581&sdata=AUfjuphAXNro%2B89WSv2ONHeT4X9HbPrB0vJeNI5vzaU%3D&reserved=0> Please note that messages sent to this large list cannot be viewed as private. 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