8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

>From Trinity Lutheran Church v. Pauley (8th Cir. May 29) (2-to-1 vote), 
>http://media.ca8.uscourts.gov/opndir/15/05/141382P.pdf:

DNR [Department of Natural Resources] offers Playground Scrap Tire Surface 
Material Grants, a solid waste management program. The grants provide DNR funds 
to qualifying organizations for the purchase of recycled tires to resurface 
playgrounds, a beneficial reuse of this solid waste. See Mo. Rev. Stat. §§ 
260.335.1, 260.273.6(2). In 2012, Trinity Church applied for a grant to replace 
the Learning Center's playground surface [which, according to the dissent, is 
currently gravel -EV], disclosing that the Learning Center was part of Trinity 
Church. On May 21, 2012, the Solid Waste Management Program Director wrote the 
Learning Center's Director, advising:

[A]fter further review of applicable constitutional limitations, the department 
is unable to provide this financial assistance directly to the church as 
contemplated by the grant application. Please note that Article I, Section 7 of 
the Missouri Constitution specifically provides that "no money shall ever be 
taken from the public treasury, directly or indirectly, in aid of any church, 
section or denomination of religion."

A Solid Waste Management Program planner subsequently advised the Solid Waste 
Management District Director that Trinity Church's application ranked fifth out 
of forty four applications in 2012, and that fourteen projects were funded.

The majority held this decision didn't violate the First Amendment; the dissent 
said that it did.  Both naturally discussed the scope of Locke v. Davey.  Do 
list members think this is right?  How far removed is this from, say, the 
provision of police, fire, or trash hauling services, seismic retrofitting 
funds, or grants or low-interest loans for reconstruction after an earthquake, 
flood, or terrorist attack?  Or would it be constitutionally permissible - and 
even mandated under the Missouri Constitution - to deny religious institutions 
such generally available funds?

Eugene
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Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Marty Lederman]

Under *Mitchell v. Helms*, would it even be constitutionally *permissible* for
the state to give direct grant funding to the church?  Recall that SOC, in
her governing opinion, rested quite heavily on the distinction between
monetary and nonmonetary aid when it comes to direct aid (as opposed to
vouchers):

Justice Souter is *correct to note our continued recognition of the special
dangers associated with direct money grants to religious institutions*.  It
does not follow, however, that we should treat as constitutionally suspect
any form of secular aid that might conceivably be diverted to a religious
use. As the cases Justice Souter cites demonstrate, *our concern with
direct monetary aid is based on more than just diversion*. *In fact, the
most important reason for according special treatment to direct money
grants is that this form of aid falls precariously close to the original
object of the Establishment Clause’s prohibition*. See, e.g., Walz v. Tax
Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or the men who
wrote the Religion Clauses of the First Amendment the ‘establishment’ of a
religion connoted sponsorship, financial support, and active involvement of
the sovereign in religious activity”). Statements concerning the
*constitutionally
suspect status of direct cash aid*, accordingly, provide no justification
for applying an absolute rule against divertibility when the aid consists
instead of instructional materials and equipment.
* * * *
This Court has “recognized *special Establishment Clause dangers where the
government makes direct money payments to sectarian institutions.*”
Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting
cases). If, as the plurality contends, a per-capita-aid program is
identical in relevant constitutional respects to a true private-choice
program, then there is no reason that, under the plurality's reasoning, the
government should be precluded from providing direct money payments to
religious organizations (including churches) based on the number of persons
belonging to each organization. And, because actual diversion is
permissible under the plurality's holding, the participating religious
organizations (including churches) could use that aid to support religious
indoctrination. To be sure, *the plurality does not actually hold that its
theory extends to direct money payments*. See ante, at 2546–2547. That
omission, however, is of little comfort. In its logic—as well as its
specific advisory language, see ante, at 2546–2547, n. 8—the plurality
opinion foreshadows the approval of direct monetary subsidies to religious
organizations, even when they use the money to advance their religious
objectives.



On Sun, May 31, 2015 at 7:34 PM, Volokh, Eugene  wrote:

> From *Trinity Lutheran Church v. Pauley* (8th Cir. May 29) (2-to-1 vote),
> http://media.ca8.uscourts.gov/opndir/15/05/141382P.pdf:
>
>
>
> DNR [Department of Natural Resources] offers Playground Scrap Tire Surface
> Material Grants, a solid waste management program. The grants provide DNR
> funds to qualifying organizations for the purchase of recycled tires to
> resurface playgrounds, a beneficial reuse of this solid waste. See Mo. Rev.
> Stat. §§ 260.335.1, 260.273.6(2). In 2012, Trinity Church applied for a
> grant to replace the Learning Center’s playground surface [which, according
> to the dissent, is currently gravel –EV], disclosing that the Learning
> Center was part of Trinity Church. On May 21, 2012, the Solid Waste
> Management Program Director wrote the Learning Center’s Director, advising:
>
>
>
> [A]fter further review of applicable constitutional limitations, the
> department is unable to provide this financial assistance directly to the
> church as contemplated by the grant application. Please note that Article
> I, Section 7 of the Missouri Constitution specifically provides that “no
> money shall ever be taken from the public treasury, directly or indirectly,
> in aid of any church, section or denomination of religion.”
>
>
>
> A Solid Waste Management Program planner subsequently advised the Solid
> Waste Management District Director that Trinity Church’s application ranked
> fifth out of forty four applications in 2012, and that fourteen projects
> were funded.
>
>
>
> The majority held this decision didn’t violate the First Amendment; the
> dissent said that it did.  Both naturally discussed the scope of *Locke
> v. Davey*.  Do list members think this is right?  How far removed is this
> from, say, the provision of police, fire, or trash hauling services,
> seismic retrofitting funds, or grants or low-interest loans for
> reconstruction after an earthquake, flood, or terrorist attack?  Or would
> it be constitutionally permissible – and even mandated under the Missouri
> Constitution – to deny religious institutions such generally available
> funds?
>
>
>
> Eugene
>
> ___
> To post, send message to Religionlaw@lists.

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Marty Lederman]

The court of appeals writes:

We also recognize that the Supreme Court’s Establishment Clause
jurisprudence has evolved rather dramatically in the forty years since
Luetkemeyer was decided. For example, *it now seems rather clear* that
Missouri could include the Learning Center’s playground in a
non-discriminatory Scrap Tire grant program without violating the
Establishment Clause.

No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*,
which is probably the strongest case (although of course it did not involve
direct funding to a church, as such)--and no effort to discuss *Mitchell*,
or to distinguish any of the cases cited in the Souter opinion in *Mitchell
*in which the Court held that the EC prohibited direct funding of churches
and parochial schools.

Don't get me wrong:  If the case were heard by the present Supreme Court, I
imagine there'd be five votes that the EC does not prohibit the grants to
churches.  (Alito is obviously much more likely than was O'Connor to accept
the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd think
that Missouri would have emphasized that such funding is constitutionally
problematic under governing doctrine (it didn't do so in its brief), and
that a court of appeals would at least address the question.

On Sun, May 31, 2015 at 8:01 PM, Marty Lederman 
wrote:

> Under *Mitchell v. Helms*, would it even be constitutionally *permissible* for
> the state to give direct grant funding to the church?  Recall that SOC, in
> her governing opinion, rested quite heavily on the distinction between
> monetary and nonmonetary aid when it comes to direct aid (as opposed to
> vouchers):
>
> Justice Souter is *correct to note our continued recognition of the
> special dangers associated with direct money grants to religious
> institutions*.  It does not follow, however, that we should treat as
> constitutionally suspect any form of secular aid that might conceivably be
> diverted to a religious use. As the cases Justice Souter cites demonstrate, 
> *our
> concern with direct monetary aid is based on more than just diversion*. *In
> fact, the most important reason for according special treatment to direct
> money grants is that this form of aid falls precariously close to the
> original object of the Establishment Clause’s prohibition*. See, e.g.,
> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or
> the men who wrote the Religion Clauses of the First Amendment the
> ‘establishment’ of a religion connoted sponsorship, financial support, and
> active involvement of the sovereign in religious activity”). Statements
> concerning the *constitutionally suspect status of direct cash aid*,
> accordingly, provide no justification for applying an absolute rule against
> divertibility when the aid consists instead of instructional materials and
> equipment.
> * * * *
> This Court has “recognized *special Establishment Clause dangers where
> the government makes direct money payments to sectarian institutions.*”
> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting
> cases). If, as the plurality contends, a per-capita-aid program is
> identical in relevant constitutional respects to a true private-choice
> program, then there is no reason that, under the plurality's reasoning, the
> government should be precluded from providing direct money payments to
> religious organizations (including churches) based on the number of persons
> belonging to each organization. And, because actual diversion is
> permissible under the plurality's holding, the participating religious
> organizations (including churches) could use that aid to support religious
> indoctrination. To be sure, *the plurality does not actually hold that
> its theory extends to direct money payments*. See ante, at 2546–2547.
> That omission, however, is of little comfort. In its logic—as well as its
> specific advisory language, see ante, at 2546–2547, n. 8—the plurality
> opinion foreshadows the approval of direct monetary subsidies to religious
> organizations, even when they use the money to advance their religious
> objectives.
>
>
>
> On Sun, May 31, 2015 at 7:34 PM, Volokh, Eugene 
> wrote:
>
>> From *Trinity Lutheran Church v. Pauley* (8th Cir. May 29) (2-to-1
>> vote), http://media.ca8.uscourts.gov/opndir/15/05/141382P.pdf:
>>
>>
>>
>> DNR [Department of Natural Resources] offers Playground Scrap Tire
>> Surface Material Grants, a solid waste management program. The grants
>> provide DNR funds to qualifying organizations for the purchase of recycled
>> tires to resurface playgrounds, a beneficial reuse of this solid waste. See
>> Mo. Rev. Stat. §§ 260.335.1, 260.273.6(2). In 2012, Trinity Church applied
>> for a grant to replace the Learning Center’s playground surface [which,
>> according to the dissent, is currently gravel –EV], disclosing that the
>> Learning Center was part of Trinity Church. On May 21, 2012, the Solid
>> Waste Management Program D

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Douglas Laycock]

I suspect that many judges have a hard time taking O'Connor's Mitchell opinion 
seriously after Zelman -- even though O'Connor's opinion was controlling and 
they are not supposed to anticipate overrulings.

On Sun, 31 May 2015 21:08:20 -0400
 Marty Lederman  wrote:
>The court of appeals writes:
>
>We also recognize that the Supreme Court’s Establishment Clause
>jurisprudence has evolved rather dramatically in the forty years since
>Luetkemeyer was decided. For example, *it now seems rather clear* that
>Missouri could include the Learning Center’s playground in a
>non-discriminatory Scrap Tire grant program without violating the
>Establishment Clause.
>
>No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*,
>which is probably the strongest case (although of course it did not involve
>direct funding to a church, as such)--and no effort to discuss *Mitchell*,
>or to distinguish any of the cases cited in the Souter opinion in *Mitchell
>*in which the Court held that the EC prohibited direct funding of churches
>and parochial schools.
>
>Don't get me wrong:  If the case were heard by the present Supreme Court, I
>imagine there'd be five votes that the EC does not prohibit the grants to
>churches.  (Alito is obviously much more likely than was O'Connor to accept
>the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd think
>that Missouri would have emphasized that such funding is constitutionally
>problematic under governing doctrine (it didn't do so in its brief), and
>that a court of appeals would at least address the question.
>
>On Sun, May 31, 2015 at 8:01 PM, Marty Lederman 
>wrote:
>
>> Under *Mitchell v. Helms*, would it even be constitutionally *permissible* 
>> for
>> the state to give direct grant funding to the church?  Recall that SOC, in
>> her governing opinion, rested quite heavily on the distinction between
>> monetary and nonmonetary aid when it comes to direct aid (as opposed to
>> vouchers):
>>
>> Justice Souter is *correct to note our continued recognition of the
>> special dangers associated with direct money grants to religious
>> institutions*.  It does not follow, however, that we should treat as
>> constitutionally suspect any form of secular aid that might conceivably be
>> diverted to a religious use. As the cases Justice Souter cites demonstrate, 
>> *our
>> concern with direct monetary aid is based on more than just diversion*. *In
>> fact, the most important reason for according special treatment to direct
>> money grants is that this form of aid falls precariously close to the
>> original object of the Establishment Clause’s prohibition*. See, e.g.,
>> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or
>> the men who wrote the Religion Clauses of the First Amendment the
>> ‘establishment’ of a religion connoted sponsorship, financial support, and
>> active involvement of the sovereign in religious activity”). Statements
>> concerning the *constitutionally suspect status of direct cash aid*,
>> accordingly, provide no justification for applying an absolute rule against
>> divertibility when the aid consists instead of instructional materials and
>> equipment.
>> * * * *
>> This Court has “recognized *special Establishment Clause dangers where
>> the government makes direct money payments to sectarian institutions.*”
>> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting
>> cases). If, as the plurality contends, a per-capita-aid program is
>> identical in relevant constitutional respects to a true private-choice
>> program, then there is no reason that, under the plurality's reasoning, the
>> government should be precluded from providing direct money payments to
>> religious organizations (including churches) based on the number of persons
>> belonging to each organization. And, because actual diversion is
>> permissible under the plurality's holding, the participating religious
>> organizations (including churches) could use that aid to support religious
>> indoctrination. To be sure, *the plurality does not actually hold that
>> its theory extends to direct money payments*. See ante, at 2546–2547.
>> That omission, however, is of little comfort. In its logic—as well as its
>> specific advisory language, see ante, at 2546–2547, n. 8—the plurality
>> opinion foreshadows the approval of direct monetary subsidies to religious
>> organizations, even when they use the money to advance their religious
>> objectives.
>>
>>
>>
>> On Sun, May 31, 2015 at 7:34 PM, Volokh, Eugene 
>> wrote:
>>
>>> From *Trinity Lutheran Church v. Pauley* (8th Cir. May 29) (2-to-1
>>> vote), http://media.ca8.uscourts.gov/opndir/15/05/141382P.pdf:
>>>
>>>
>>>
>>> DNR [Department of Natural Resources] offers Playground Scrap Tire
>>> Surface Material Grants, a solid waste management program. The grants
>>> provide DNR funds to qualifying organizations for the purchase of recycled
>>> tires to resurface playgrounds, a beneficial reuse 

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Marty Lederman]

Zelman is inapposite.  It involved a voucher program in which aid was
available to "a broad class of citizens who, in turn, direct[ed] government
aid to religious schools wholly as a result of their own genuine and
independent private choice."  By contrast, this is a direct grant program
in which the state decides which entities get the grants, and sends the
money directly to the entities.  The Court in Zelman specifically
distinguished Mitchell and all the direct funding cases.

On Sun, May 31, 2015 at 9:20 PM, Douglas Laycock 
wrote:

> I suspect that many judges have a hard time taking O'Connor's Mitchell
> opinion seriously after Zelman -- even though O'Connor's opinion was
> controlling and they are not supposed to anticipate overrulings.
>
> On Sun, 31 May 2015 21:08:20 -0400
>  Marty Lederman  wrote:
> >The court of appeals writes:
> >
> >We also recognize that the Supreme Court’s Establishment Clause
> >jurisprudence has evolved rather dramatically in the forty years since
> >Luetkemeyer was decided. For example, *it now seems rather clear* that
> >Missouri could include the Learning Center’s playground in a
> >non-discriminatory Scrap Tire grant program without violating the
> >Establishment Clause.
> >
> >No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*,
> >which is probably the strongest case (although of course it did not
> involve
> >direct funding to a church, as such)--and no effort to discuss *Mitchell*,
> >or to distinguish any of the cases cited in the Souter opinion in
> *Mitchell
> >*in which the Court held that the EC prohibited direct funding of churches
> >and parochial schools.
> >
> >Don't get me wrong:  If the case were heard by the present Supreme Court,
> I
> >imagine there'd be five votes that the EC does not prohibit the grants to
> >churches.  (Alito is obviously much more likely than was O'Connor to
> accept
> >the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd think
> >that Missouri would have emphasized that such funding is constitutionally
> >problematic under governing doctrine (it didn't do so in its brief), and
> >that a court of appeals would at least address the question.
> >
> >On Sun, May 31, 2015 at 8:01 PM, Marty Lederman  >
> >wrote:
> >
> >> Under *Mitchell v. Helms*, would it even be constitutionally
> *permissible* for
> >> the state to give direct grant funding to the church?  Recall that SOC,
> in
> >> her governing opinion, rested quite heavily on the distinction between
> >> monetary and nonmonetary aid when it comes to direct aid (as opposed to
> >> vouchers):
> >>
> >> Justice Souter is *correct to note our continued recognition of the
> >> special dangers associated with direct money grants to religious
> >> institutions*.  It does not follow, however, that we should treat as
> >> constitutionally suspect any form of secular aid that might conceivably
> be
> >> diverted to a religious use. As the cases Justice Souter cites
> demonstrate, *our
> >> concern with direct monetary aid is based on more than just diversion*.
> *In
> >> fact, the most important reason for according special treatment to
> direct
> >> money grants is that this form of aid falls precariously close to the
> >> original object of the Establishment Clause’s prohibition*. See, e.g.,
> >> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or
> >> the men who wrote the Religion Clauses of the First Amendment the
> >> ‘establishment’ of a religion connoted sponsorship, financial support,
> and
> >> active involvement of the sovereign in religious activity”). Statements
> >> concerning the *constitutionally suspect status of direct cash aid*,
> >> accordingly, provide no justification for applying an absolute rule
> against
> >> divertibility when the aid consists instead of instructional materials
> and
> >> equipment.
> >> * * * *
> >> This Court has “recognized *special Establishment Clause dangers where
> >> the government makes direct money payments to sectarian institutions.*”
> >> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid.
> (collecting
> >> cases). If, as the plurality contends, a per-capita-aid program is
> >> identical in relevant constitutional respects to a true private-choice
> >> program, then there is no reason that, under the plurality's reasoning,
> the
> >> government should be precluded from providing direct money payments to
> >> religious organizations (including churches) based on the number of
> persons
> >> belonging to each organization. And, because actual diversion is
> >> permissible under the plurality's holding, the participating religious
> >> organizations (including churches) could use that aid to support
> religious
> >> indoctrination. To be sure, *the plurality does not actually hold that
> >> its theory extends to direct money payments*. See ante, at 2546–2547.
> >> That omission, however, is of little comfort. In its logic—as well as
> its
> >> specific advisory language,

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Greg Hamilton]

Marty, I believe you are right. Justice O'Connor's separate concurring opinion 
in Mitchell v. Helms challenged Justice Thomas's attempt to entirely rid the 
High Court of the doctrine of neutrality, which increasingly seems at risk 
today. Non-monitary material aid versus monitory aid has been, and should 
continue to be the standard, notwithstanding the voucher ruling in Zelman v. 
Simmons-Harris in which, IMHO, O'Connor gets precariously close to nuancing too 
finely her take on government neutrality and the definition of "indirect" 
funding.

I also find it somewhat amusing that in Locke v. Davey, Chief Justice Rehnquist 
schools Justice Scalia in an endnote about Thomas Jefferson's and James 
Madison's debates with Patrick Henry over government funding assumptions that 
resulted in Jefferson's Virginia Statute of Religious Freedom and the general 
prohibition on such funding. Rehnquist's majority opinion was reassuring in the 
fact that it demonstrated that he had not abandoned the Court’s neutrality 
doctrine entirely, as some of his colleagues were pressing him to do. For me, 
this represented subtle evidence that O'Connor's influence had rubbed off on 
his dear friend and eminent colleague.

My published essay titled "Justice O'Connor: Interpretive Determinism and 
Neutrality's Pitfalls" addresses at length O'Connor's concurring opinion in 
Mitchell. Along with Dr. Brownstein's essay on Justice Souter's dissent, it was 
published by Roman & Littlefield Publishers, Inc., in Stephen Monsma's edited 
work titled "Church-State Relations in Crisis: Debating Neutrality (2002), 
pages 103-126, in which all of the contributing essays specifically focused on 
the Mitchell v. Helms ruling.

I am providing my final draft in Dropbox for your convenience. Please let me if 
it useful and how my assessment of O'Connor's views could be sharpened.

https://www.dropbox.com/s/rw7x8g4pcl0ky22/downloaded_file-29.pdf?dl=0

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.com

Sent via the Samsung GALAXY S®4, an AT&T 4G LTE smartphone
 Original message 
From: Marty Lederman 
Date: 05/31/2015 5:05 PM (GMT-08:00)
To: Law & Religion issues for Law Academics 
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

Under Mitchell v. Helms, would it even be constitutionally permissible for the 
state to give direct grant funding to the church?  Recall that SOC, in her 
governing opinion, rested quite heavily on the distinction between monetary and 
nonmonetary aid when it comes to direct aid (as opposed to vouchers):

Justice Souter is correct to note our continued recognition of the special 
dangers associated with direct money grants to religious institutions.  It does 
not follow, however, that we should treat as constitutionally suspect any form 
of secular aid that might conceivably be diverted to a religious use. As the 
cases Justice Souter cites demonstrate, our concern with direct monetary aid is 
based on more than just diversion. In fact, the most important reason for 
according special treatment to direct money grants is that this form of aid 
falls precariously close to the original object of the Establishment Clause’s 
prohibition. See, e.g., Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 
668 (1970) (“[F]or the men who wrote the Religion Clauses of the First 
Amendment the ‘establishment’ of a religion connoted sponsorship, financial 
support, and active involvement of the sovereign in religious activity”). 
Statements concerning the constitutionally suspect status of direct cash aid, 
accordingly, provide no justification for applying an absolute rule against 
divertibility when the aid consists instead of instructional materials and 
equipment.
* * * *
This Court has “recognized special Establishment Clause dangers where the 
government makes direct money payments to sectarian institutions.” Rosenberger, 
515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting cases). If, as the 
plurality contends, a per-capita-aid program is identical in relevant 
constitutional respects to a true private-choice program, then there is no 
reason that, under the plurality's reasoning, the government should be 
precluded from providing direct money payments to religious organizations 
(including churches) based on the number of persons belonging to each 
organization. And, because actual diversion is permissible under the 
plurality's holding, the participating religious organizations (including 
churches) could use that aid to support religious indoctrination. To be sure, 
the plurality does not actually hold that its theory extends to direct money 
payments. See ante, at 2546–2547. That omission, however, is of little comfort. 
In its logic—as well as its specific advisory language, see ante, at 2546–2547, 
n. 8—the plurality opinion fores

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

   I agree that there’s little clear in much of Establishment 
Clause jurisprudence.  But can it really be that the government must – or even 
may – deny to children in religious schools physical safety benefits that are 
broadly available to children in other schools?

   What if the case had involved, say, seismic retrofitting funds, 
or radon gas testing, or asbestos remediation, made available to day care 
centers of all sorts, but not religious ones?  Would this indeed be 
constitutionally permissible (indeed, constitutionally required)?  That strike 
me as wrong, both as a matter of general principles and given the limited 
language of Locke v. Davey (wrong as I think the majority opinion is there).

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, May 31, 2015 6:08 PM
To: Law & Religion issues for Law Academics
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

The court of appeals writes:

We also recognize that the Supreme Court’s Establishment Clause
jurisprudence has evolved rather dramatically in the forty years since 
Luetkemeyer was decided. For example, it now seems rather clear that Missouri 
could include the Learning Center’s playground in a non-discriminatory Scrap 
Tire grant program without violating the Establishment Clause.

No citation for "it now seems rather clear"--not even Bowen v. Kendrick, which 
is probably the strongest case (although of course it did not involve direct 
funding to a church, as such)--and no effort to discuss Mitchell, or to 
distinguish any of the cases cited in the Souter opinion in Mitchell in which 
the Court held that the EC prohibited direct funding of churches and parochial 
schools.

Don't get me wrong:  If the case were heard by the present Supreme Court, I 
imagine there'd be five votes that the EC does not prohibit the grants to 
churches.  (Alito is obviously much more likely than was O'Connor to accept the 
rationale of the Thomas opinion in Mitchell.)  Even so, you'd think that 
Missouri would have emphasized that such funding is constitutionally 
problematic under governing doctrine (it didn't do so in its brief), and that a 
court of appeals would at least address the question.

On Sun, May 31, 2015 at 8:01 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
Under Mitchell v. Helms, would it even be constitutionally permissible for the 
state to give direct grant funding to the church?  Recall that SOC, in her 
governing opinion, rested quite heavily on the distinction between monetary and 
nonmonetary aid when it comes to direct aid (as opposed to vouchers):

Justice Souter is correct to note our continued recognition of the special 
dangers associated with direct money grants to religious institutions.  It does 
not follow, however, that we should treat as constitutionally suspect any form 
of secular aid that might conceivably be diverted to a religious use. As the 
cases Justice Souter cites demonstrate, our concern with direct monetary aid is 
based on more than just diversion. In fact, the most important reason for 
according special treatment to direct money grants is that this form of aid 
falls precariously close to the original object of the Establishment Clause’s 
prohibition. See, e.g., Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 
668 (1970) (“[F]or the men who wrote the Religion Clauses of the First 
Amendment the ‘establishment’ of a religion connoted sponsorship, financial 
support, and active involvement of the sovereign in religious activity”). 
Statements concerning the constitutionally suspect status of direct cash aid, 
accordingly, provide no justification for applying an absolute rule against 
divertibility when the aid consists instead of instructional materials and 
equipment.
* * * *
This Court has “recognized special Establishment Clause dangers where the 
government makes direct money payments to sectarian institutions.” Rosenberger, 
515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting cases). If, as the 
plurality contends, a per-capita-aid program is identical in relevant 
constitutional respects to a true private-choice program, then there is no 
reason that, under the plurality's reasoning, the government should be 
precluded from providing direct money payments to religious organizations 
(including churches) based on the number of persons belonging to each 
organization. And, because actual diversion is permissible under the 
plurality's holding, the participating religious organizations (including 
churches) could use that aid to support religious indoctrination. To be sure, 
the plurality does not actually hold that its theory extends to direct money 
payments. See ante, at 2546–2547. That omission, however, is of little comfort. 
In its logic—as well as its specific advisory language, see ante, at 2546–2547, 
n. 8—t

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Marty Lederman]

Under *Mitchell*, surely Missouri *could* provide physical safety
"benefits" to religious schools if such benefits were generally available
to all schools and did not take the form of direct funding.  (Whether it
would be *required *to do so would depend upon *Locke v. Davey*.)

But here, neither of those conditions is present:  It's direct funding, not
other forms of aid.  And it's a very selective grant program, not a
generally available entitlement.

On Sun, May 31, 2015 at 9:44 PM, Volokh, Eugene  wrote:

>I agree that there’s little clear in much of Establishment
> Clause jurisprudence.  But can it really be that the government must – or
> even may – deny to children in religious schools physical safety benefits
> that are broadly available to children in other schools?
>
>
>
>What if the case had involved, say, seismic retrofitting
> funds, or radon gas testing, or asbestos remediation, made available to day
> care centers of all sorts, but not religious ones?  Would this indeed be
> constitutionally permissible (indeed, constitutionally required)?  That
> strike me as wrong, both as a matter of general principles and given the
> limited language of *Locke v. Davey *(wrong as I think the majority
> opinion is there).
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Sunday, May 31, 2015 6:08 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: 8th Cir. upholds exclusion of religious schools from
> playground safety funds
>
>
>
> The court of appeals writes:
>
>
>
> We also recognize that the Supreme Court’s Establishment Clause
>
> jurisprudence has evolved rather dramatically in the forty years since
> Luetkemeyer was decided. For example, *it now seems rather clear* that
> Missouri could include the Learning Center’s playground in a
> non-discriminatory Scrap Tire grant program without violating the
> Establishment Clause.
>
>
>
> No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*,
> which is probably the strongest case (although of course it did not involve
> direct funding to a church, as such)--and no effort to discuss *Mitchell*,
> or to distinguish any of the cases cited in the Souter opinion in *Mitchell
> *in which the Court held that the EC prohibited direct funding of
> churches and parochial schools.
>
>
>
> Don't get me wrong:  If the case were heard by the present Supreme Court,
> I imagine there'd be five votes that the EC does not prohibit the grants to
> churches.  (Alito is obviously much more likely than was O'Connor to accept
> the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd think
> that Missouri would have emphasized that such funding is constitutionally
> problematic under governing doctrine (it didn't do so in its brief), and
> that a court of appeals would at least address the question.
>
>
>
> On Sun, May 31, 2015 at 8:01 PM, Marty Lederman 
> wrote:
>
> Under *Mitchell v. Helms*, would it even be constitutionally *permissible* for
> the state to give direct grant funding to the church?  Recall that SOC, in
> her governing opinion, rested quite heavily on the distinction between
> monetary and nonmonetary aid when it comes to direct aid (as opposed to
> vouchers):
>
>
>
> Justice Souter is *correct to note our continued recognition of the
> special dangers associated with direct money grants to religious
> institutions*.  It does not follow, however, that we should treat as
> constitutionally suspect any form of secular aid that might conceivably be
> diverted to a religious use. As the cases Justice Souter cites demonstrate, 
> *our
> concern with direct monetary aid is based on more than just diversion*. *In
> fact, the most important reason for according special treatment to direct
> money grants is that this form of aid falls precariously close to the
> original object of the Establishment Clause’s prohibition*. See, e.g.,
> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or
> the men who wrote the Religion Clauses of the First Amendment the
> ‘establishment’ of a religion connoted sponsorship, financial support, and
> active involvement of the sovereign in religious activity”). Statements
> concerning the *constitutionally suspect status of direct cash aid*,
> accordingly, provide no justification for applying an absolute rule against
> divertibility when the aid consists instead of instructional materials and
> equipment.
>
> * * * *
>
> This Court has “recognized *special Establishment Clause dangers where
> the government makes direct money payments to sectarian institutions.*”
> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting
> cases). If, as the plurality contends, a per-capita-aid program is
> identical in relevant constitutional respects to a true private-choice
> program, then there is no reason that, under the 

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Graber, Mark]

One might note that under the free exercise clause and RFRA, churches are 
permitted to deny employees basic rights that are as a matter of law broadly 
available to persons employed elsewhere.

This does not answer Eugene's question, but may diminish the rhetorical force 
somewhat.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, May 31, 2015 9:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

   I agree that there’s little clear in much of Establishment 
Clause jurisprudence.  But can it really be that the government must – or even 
may – deny to children in religious schools physical safety benefits that are 
broadly available to children in other schools?

   What if the case had involved, say, seismic retrofitting funds, 
or radon gas testing, or asbestos remediation, made available to day care 
centers of all sorts, but not religious ones?  Would this indeed be 
constitutionally permissible (indeed, constitutionally required)?  That strike 
me as wrong, both as a matter of general principles and given the limited 
language of Locke v. Davey (wrong as I think the majority opinion is there).

   Eugene

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RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

I never quite understood this argument:  Because some religious 
institutions get exemptions from certain laws, it's fair to discriminate 
against other religious institutions -- who often won't be interested in those 
exemptions, and won't get any value from those exceptions?

Look, if a state wanted to set up a rule that, say, institutions that 
discriminate based on various criteria don't get various benefits, then we'd 
have an interesting "bitter with the sweet" sort of argument; compare, in the 
freedom of association context, Christian Legal Society v. Martinez.  But 
because Missouri allows institutions to freely choose their clergy -- and 
indeed has an obligation to do so -- it is also allowed (or required?) to deny 
children who go to religious schools access to safety improvements that it 
offers children who go to secular schools?  I don't really see the connection 
there.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, May 31, 2015 6:51 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
> 
> One might note that under the free exercise clause and RFRA, churches are
> permitted to deny employees basic rights that are as a matter of law broadly
> available to persons employed elsewhere.
> 
> This does not answer Eugene's question, but may diminish the rhetorical force
> somewhat.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, May 31, 2015 9:44 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
> 
>I agree that there's little clear in much of Establishment 
> Clause
> jurisprudence.  But can it really be that the government must - or even may -
> deny to children in religious schools physical safety benefits that are 
> broadly
> available to children in other schools?
> 
>What if the case had involved, say, seismic retrofitting 
> funds, or radon
> gas testing, or asbestos remediation, made available to day care centers of 
> all
> sorts, but not religious ones?  Would this indeed be constitutionally 
> permissible
> (indeed, constitutionally required)?  That strike me as wrong, both as a 
> matter of
> general principles and given the limited language of Locke v. Davey (wrong as 
> I
> think the majority opinion is there).
> 
>Eugene
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
> change options, or get password, see http://lists.ucla.edu/cgi-
> bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.
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Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Mark R. Killenbeck]

To you only at this point, given my memory (which may be mistaken) that you 
previously castigated the opinion in Locke for avoiding the "little Blaine 
Amendment" problem, relegating all mention to a footnote.  The "long history" 
in Missouri that the 8th majority finds so compelling dates to 1870 and 1875.  
These strike me as constitutional provisions that potentially have their 
origins in a political and social climate that is far different from the one 
that animated the founding generation.  That said, I don't know the actual 
Missouri history.

Mark Killenbeck

Sent from my iphone


On May 31, 2015, at 7:04 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:

Under Mitchell v. Helms, would it even be constitutionally permissible for the 
state to give direct grant funding to the church?  Recall that SOC, in her 
governing opinion, rested quite heavily on the distinction between monetary and 
nonmonetary aid when it comes to direct aid (as opposed to vouchers):

Justice Souter is correct to note our continued recognition of the special 
dangers associated with direct money grants to religious institutions.  It does 
not follow, however, that we should treat as constitutionally suspect any form 
of secular aid that might conceivably be diverted to a religious use. As the 
cases Justice Souter cites demonstrate, our concern with direct monetary aid is 
based on more than just diversion. In fact, the most important reason for 
according special treatment to direct money grants is that this form of aid 
falls precariously close to the original object of the Establishment Clause's 
prohibition. See, e.g., Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 
668 (1970) ("[F]or the men who wrote the Religion Clauses of the First 
Amendment the 'establishment' of a religion connoted sponsorship, financial 
support, and active involvement of the sovereign in religious activity"). 
Statements concerning the constitutionally suspect status of direct cash aid, 
accordingly, provide no justification for applying an absolute rule against 
divertibility when the aid consists instead of instructional materials and 
equipment.
* * * *
This Court has "recognized special Establishment Clause dangers where the 
government makes direct money payments to sectarian institutions." Rosenberger, 
515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting cases). If, as the 
plurality contends, a per-capita-aid program is identical in relevant 
constitutional respects to a true private-choice program, then there is no 
reason that, under the plurality's reasoning, the government should be 
precluded from providing direct money payments to religious organizations 
(including churches) based on the number of persons belonging to each 
organization. And, because actual diversion is permissible under the 
plurality's holding, the participating religious organizations (including 
churches) could use that aid to support religious indoctrination. To be sure, 
the plurality does not actually hold that its theory extends to direct money 
payments. See ante, at 2546-2547. That omission, however, is of little comfort. 
In its logic-as well as its specific advisory language, see ante, at 2546-2547, 
n. 8-the plurality opinion foreshadows the approval of direct monetary 
subsidies to religious organizations, even when they use the money to advance 
their religious objectives.
___
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RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

   1.  All schools are eligible to get this child safety benefit.  
About 1/3 (14 out of 44) of the schools that asked for it got it.  But the 
state said that children who go to religious schools can’t get this benefit.

   2.  I know some of the cases talk about direct funding, but I 
don’t see what the significance of direct funding for purchase of scrap tire 
surface material vs. other ways of providing such scrap tire surface material 
ought to be.  (We’re not talking here about direct funding in the form of an 
unrestricted cash grant, or even a cash grant that must be used for education; 
we’re talking about funds that can only be used for replacing gravel with a 
surface that is less likely to injure children.)  If the state just delivered 
the material, or sent its contractor to do the surfacing, how exactly this 
would be different?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, May 31, 2015 6:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

Under Mitchell, surely Missouri could provide physical safety "benefits" to 
religious schools if such benefits were generally available to all schools and 
did not take the form of direct funding.  (Whether it would be required to do 
so would depend upon Locke v. Davey.)

But here, neither of those conditions is present:  It's direct funding, not 
other forms of aid.  And it's a very selective grant program, not a generally 
available entitlement.

On Sun, May 31, 2015 at 9:44 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   I agree that there’s little clear in much of Establishment 
Clause jurisprudence.  But can it really be that the government must – or even 
may – deny to children in religious schools physical safety benefits that are 
broadly available to children in other schools?

   What if the case had involved, say, seismic retrofitting funds, 
or radon gas testing, or asbestos remediation, made available to day care 
centers of all sorts, but not religious ones?  Would this indeed be 
constitutionally permissible (indeed, constitutionally required)?  That strike 
me as wrong, both as a matter of general principles and given the limited 
language of Locke v. Davey (wrong as I think the majority opinion is there).

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Sunday, May 31, 2015 6:08 PM
To: Law & Religion issues for Law Academics
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

The court of appeals writes:

We also recognize that the Supreme Court’s Establishment Clause
jurisprudence has evolved rather dramatically in the forty years since 
Luetkemeyer was decided. For example, it now seems rather clear that Missouri 
could include the Learning Center’s playground in a non-discriminatory Scrap 
Tire grant program without violating the Establishment Clause.

No citation for "it now seems rather clear"--not even Bowen v. Kendrick, which 
is probably the strongest case (although of course it did not involve direct 
funding to a church, as such)--and no effort to discuss Mitchell, or to 
distinguish any of the cases cited in the Souter opinion in Mitchell in which 
the Court held that the EC prohibited direct funding of churches and parochial 
schools.

Don't get me wrong:  If the case were heard by the present Supreme Court, I 
imagine there'd be five votes that the EC does not prohibit the grants to 
churches.  (Alito is obviously much more likely than was O'Connor to accept the 
rationale of the Thomas opinion in Mitchell.)  Even so, you'd think that 
Missouri would have emphasized that such funding is constitutionally 
problematic under governing doctrine (it didn't do so in its brief), and that a 
court of appeals would at least address the question.

On Sun, May 31, 2015 at 8:01 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
Under Mitchell v. Helms, would it even be constitutionally permissible for the 
state to give direct grant funding to the church?  Recall that SOC, in her 
governing opinion, rested quite heavily on the distinction between monetary and 
nonmonetary aid when it comes to direct aid (as opposed to vouchers):

Justice Souter is correct to note our continued recognition of the special 
dangers associated with direct money grants to religious institutions.  It does 
not follow, however, that we should treat as constitutionally suspect any form 
of secular aid that might conceivably be diverted to a religious use. As the 
cases Justice Souter cites demonstrate, our concern with direct monetary aid is 
based on more than just diversion. In fac

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Graber, Mark]

My point was rhetorical.  We might say as Eugene does that "Missouri allows 
institutions to freely choose their clergy" or we might say "Missouri allows 
institutions to discriminate against the handicapped."  We might also say that 
Missouri leaves parents free to choose between a public school with state 
provided safety improvements or a religious school with privately provided 
safety improvements.  My point was not to provide a right answer to the 
question posed, but simply to point out that the rhetoric of discrimination or 
free choice does not answer the question (or begs the question) because all 
positions can be phrased using either rhetoric.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, May 31, 2015 10:04 PM
To: Law & Religion issues for Law Academics
Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
safety funds

I never quite understood this argument:  Because some religious 
institutions get exemptions from certain laws, it's fair to discriminate 
against other religious institutions -- who often won't be interested in those 
exemptions, and won't get any value from those exceptions?

Look, if a state wanted to set up a rule that, say, institutions that 
discriminate based on various criteria don't get various benefits, then we'd 
have an interesting "bitter with the sweet" sort of argument; compare, in the 
freedom of association context, Christian Legal Society v. Martinez.  But 
because Missouri allows institutions to freely choose their clergy -- and 
indeed has an obligation to do so -- it is also allowed (or required?) to deny 
children who go to religious schools access to safety improvements that it 
offers children who go to secular schools?  I don't really see the connection 
there.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, May 31, 2015 6:51 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
>
> One might note that under the free exercise clause and RFRA, churches are
> permitted to deny employees basic rights that are as a matter of law broadly
> available to persons employed elsewhere.
>
> This does not answer Eugene's question, but may diminish the rhetorical force
> somewhat.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, May 31, 2015 9:44 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
>
>I agree that there's little clear in much of Establishment 
> Clause
> jurisprudence.  But can it really be that the government must - or even may -
> deny to children in religious schools physical safety benefits that are 
> broadly
> available to children in other schools?
>
>What if the case had involved, say, seismic retrofitting 
> funds, or radon
> gas testing, or asbestos remediation, made available to day care centers of 
> all
> sorts, but not religious ones?  Would this indeed be constitutionally 
> permissible
> (indeed, constitutionally required)?  That strike me as wrong, both as a 
> matter of
> general principles and given the limited language of Locke v. Davey (wrong as 
> I
> think the majority opinion is there).
>
>Eugene
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
> change options, or get password, see http://lists.ucla.edu/cgi-
> bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Anyone c

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Douglas Laycock]

I understand that. That doesn't mean that many people besides O'Connor think 
the distinction makes any sense.

The state's exercise of discretion matters, because the state might 
discriminate in ways that are hard to detect. Per capita distribution instead 
of vouchers does not matter, and so O'Connor's opinion is hard to take 
seriously. And I'm guessing that many judges don't pay it much heed after 
Zelman. 

On Sun, 31 May 2015 21:33:37 -0400
 Marty Lederman  wrote:
>Zelman is inapposite.  It involved a voucher program in which aid was
>available to "a broad class of citizens who, in turn, direct[ed] government
>aid to religious schools wholly as a result of their own genuine and
>independent private choice."  By contrast, this is a direct grant program
>in which the state decides which entities get the grants, and sends the
>money directly to the entities.  The Court in Zelman specifically
>distinguished Mitchell and all the direct funding cases.
>
>On Sun, May 31, 2015 at 9:20 PM, Douglas Laycock 
>wrote:
>
>> I suspect that many judges have a hard time taking O'Connor's Mitchell
>> opinion seriously after Zelman -- even though O'Connor's opinion was
>> controlling and they are not supposed to anticipate overrulings.
>>
>> On Sun, 31 May 2015 21:08:20 -0400
>>  Marty Lederman  wrote:
>> >The court of appeals writes:
>> >
>> >We also recognize that the Supreme Court’s Establishment Clause
>> >jurisprudence has evolved rather dramatically in the forty years since
>> >Luetkemeyer was decided. For example, *it now seems rather clear* that
>> >Missouri could include the Learning Center’s playground in a
>> >non-discriminatory Scrap Tire grant program without violating the
>> >Establishment Clause.
>> >
>> >No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*,
>> >which is probably the strongest case (although of course it did not
>> involve
>> >direct funding to a church, as such)--and no effort to discuss *Mitchell*,
>> >or to distinguish any of the cases cited in the Souter opinion in
>> *Mitchell
>> >*in which the Court held that the EC prohibited direct funding of churches
>> >and parochial schools.
>> >
>> >Don't get me wrong:  If the case were heard by the present Supreme Court,
>> I
>> >imagine there'd be five votes that the EC does not prohibit the grants to
>> >churches.  (Alito is obviously much more likely than was O'Connor to
>> accept
>> >the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd think
>> >that Missouri would have emphasized that such funding is constitutionally
>> >problematic under governing doctrine (it didn't do so in its brief), and
>> >that a court of appeals would at least address the question.
>> >
>> >On Sun, May 31, 2015 at 8:01 PM, Marty Lederman > >
>> >wrote:
>> >
>> >> Under *Mitchell v. Helms*, would it even be constitutionally
>> *permissible* for
>> >> the state to give direct grant funding to the church?  Recall that SOC,
>> in
>> >> her governing opinion, rested quite heavily on the distinction between
>> >> monetary and nonmonetary aid when it comes to direct aid (as opposed to
>> >> vouchers):
>> >>
>> >> Justice Souter is *correct to note our continued recognition of the
>> >> special dangers associated with direct money grants to religious
>> >> institutions*.  It does not follow, however, that we should treat as
>> >> constitutionally suspect any form of secular aid that might conceivably
>> be
>> >> diverted to a religious use. As the cases Justice Souter cites
>> demonstrate, *our
>> >> concern with direct monetary aid is based on more than just diversion*.
>> *In
>> >> fact, the most important reason for according special treatment to
>> direct
>> >> money grants is that this form of aid falls precariously close to the
>> >> original object of the Establishment Clause’s prohibition*. See, e.g.,
>> >> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or
>> >> the men who wrote the Religion Clauses of the First Amendment the
>> >> ‘establishment’ of a religion connoted sponsorship, financial support,
>> and
>> >> active involvement of the sovereign in religious activity”). Statements
>> >> concerning the *constitutionally suspect status of direct cash aid*,
>> >> accordingly, provide no justification for applying an absolute rule
>> against
>> >> divertibility when the aid consists instead of instructional materials
>> and
>> >> equipment.
>> >> * * * *
>> >> This Court has “recognized *special Establishment Clause dangers where
>> >> the government makes direct money payments to sectarian institutions.*”
>> >> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid.
>> (collecting
>> >> cases). If, as the plurality contends, a per-capita-aid program is
>> >> identical in relevant constitutional respects to a true private-choice
>> >> program, then there is no reason that, under the plurality's reasoning,
>> the
>> >> government should be precluded from providing direct money payments to
>> >> re

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

Certainly Missouri allows institutions both to freely choose their 
clergy and to discriminate against the handicapped (and others) in choice of 
clergy -- that's what free choice is.  And Missouri also refuses to give 
children in religious schools the same access to safety protection benefits 
that it gives children in nonreligious schools (public or private).

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, May 31, 2015 7:14 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
> 
> My point was rhetorical.  We might say as Eugene does that "Missouri allows
> institutions to freely choose their clergy" or we might say "Missouri allows
> institutions to discriminate against the handicapped."  We might also say that
> Missouri leaves parents free to choose between a public school with state
> provided safety improvements or a religious school with privately provided
> safety improvements.  My point was not to provide a right answer to the
> question posed, but simply to point out that the rhetoric of discrimination or
> free choice does not answer the question (or begs the question) because all
> positions can be phrased using either rhetoric.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, May 31, 2015 10:04 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
> safety funds
> 
> I never quite understood this argument:  Because some religious 
> institutions
> get exemptions from certain laws, it's fair to discriminate against other 
> religious
> institutions -- who often won't be interested in those exemptions, and won't 
> get
> any value from those exceptions?
> 
> Look, if a state wanted to set up a rule that, say, institutions that
> discriminate based on various criteria don't get various benefits, then we'd 
> have
> an interesting "bitter with the sweet" sort of argument; compare, in the
> freedom of association context, Christian Legal Society v. Martinez.  But
> because Missouri allows institutions to freely choose their clergy -- and 
> indeed
> has an obligation to do so -- it is also allowed (or required?) to deny 
> children
> who go to religious schools access to safety improvements that it offers 
> children
> who go to secular schools?  I don't really see the connection there.
> 
> Eugene
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> > Sent: Sunday, May 31, 2015 6:51 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: 8th Cir. upholds exclusion of religious schools from
> > playground safety funds
> >
> > One might note that under the free exercise clause and RFRA, churches
> > are permitted to deny employees basic rights that are as a matter of
> > law broadly available to persons employed elsewhere.
> >
> > This does not answer Eugene's question, but may diminish the
> > rhetorical force somewhat.
> > 
> > From: religionlaw-boun...@lists.ucla.edu
> > [religionlaw-boun...@lists.ucla.edu]
> > on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> > Sent: Sunday, May 31, 2015 9:44 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: 8th Cir. upholds exclusion of religious schools from
> > playground safety funds
> >
> >I agree that there's little clear in much of
> > Establishment Clause jurisprudence.  But can it really be that the
> > government must - or even may - deny to children in religious schools
> > physical safety benefits that are broadly available to children in other 
> > schools?
> >
> >What if the case had involved, say, seismic
> > retrofitting funds, or radon gas testing, or asbestos remediation,
> > made available to day care centers of all sorts, but not religious
> > ones?  Would this indeed be constitutionally permissible (indeed,
> > constitutionally required)?  That strike me as wrong, both as a matter
> > of general principles and given the limited language of Locke v. Davey 
> > (wrong
> as I think the majority opinion is there).
> >
> >Eugene
> >
> > ___
> > To post, send message to Religionlaw@lists.ucla.edu To subscribe,
> > unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be viewed as 
> > private.
> > Anyone can subscribe to the list and read messages that are posted;
> > people can read the Web archives; and list

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Marty Lederman]

"That doesn't mean that many people besides O'Connor think the distinction
makes any sense."

Well, a whole slew of religious parties, their amici, and Justices, in
cases from Witters on down, thought the distinction was of vital
constitutional significance.  More to the point -- the point I was making
-- under governing Supreme Court law the distinction makes all the
difference in the world, whatever one thinks the doctrine *ought* to be.  A
bunch of SCOTUS cases would come out the other way under Thomas's view.
Therefore you'd think the parties and the Eighth Circuit judges would at
least have bothered to grapple with the doctrine, rather than simply
stating, without citation, that "it now seems rather clear" that the rule
is the opposite of what the governing precedent says it is.

And the fact that this is a selective grant program, in which the state
makes discretionary decisions about which applicants get the dollars (what
do you think the odds are that the Scientology or Wiccan churches would
have been among the lucky recipients?) makes the omission even more
striking.

Churches have not been constitutionally eligible to receive government
grants --especially selective grants--for many decades.  Whatever one
thinks about how the Court *should *construe the religion clauses, it would
certainly be a very significant shift in longstanding doctrine for the
Court even to *allow* Missouri to give grants to this church, let alone
require it do so.

On Sun, May 31, 2015 at 10:36 PM, Douglas Laycock 
wrote:

> I understand that. That doesn't mean that many people besides O'Connor
> think the distinction makes any sense.
>
> The state's exercise of discretion matters, because the state might
> discriminate in ways that are hard to detect. Per capita distribution
> instead of vouchers does not matter, and so O'Connor's opinion is hard to
> take seriously. And I'm guessing that many judges don't pay it much heed
> after Zelman.
>
> On Sun, 31 May 2015 21:33:37 -0400
>  Marty Lederman  wrote:
> >Zelman is inapposite.  It involved a voucher program in which aid was
> >available to "a broad class of citizens who, in turn, direct[ed]
> government
> >aid to religious schools wholly as a result of their own genuine and
> >independent private choice."  By contrast, this is a direct grant program
> >in which the state decides which entities get the grants, and sends the
> >money directly to the entities.  The Court in Zelman specifically
> >distinguished Mitchell and all the direct funding cases.
> >
> >On Sun, May 31, 2015 at 9:20 PM, Douglas Laycock 
> >wrote:
> >
> >> I suspect that many judges have a hard time taking O'Connor's Mitchell
> >> opinion seriously after Zelman -- even though O'Connor's opinion was
> >> controlling and they are not supposed to anticipate overrulings.
> >>
> >> On Sun, 31 May 2015 21:08:20 -0400
> >>  Marty Lederman  wrote:
> >> >The court of appeals writes:
> >> >
> >> >We also recognize that the Supreme Court’s Establishment Clause
> >> >jurisprudence has evolved rather dramatically in the forty years since
> >> >Luetkemeyer was decided. For example, *it now seems rather clear* that
> >> >Missouri could include the Learning Center’s playground in a
> >> >non-discriminatory Scrap Tire grant program without violating the
> >> >Establishment Clause.
> >> >
> >> >No citation for "it now seems rather clear"--not even *Bowen v.
> Kendrick*,
> >> >which is probably the strongest case (although of course it did not
> >> involve
> >> >direct funding to a church, as such)--and no effort to discuss
> *Mitchell*,
> >> >or to distinguish any of the cases cited in the Souter opinion in
> >> *Mitchell
> >> >*in which the Court held that the EC prohibited direct funding of
> churches
> >> >and parochial schools.
> >> >
> >> >Don't get me wrong:  If the case were heard by the present Supreme
> Court,
> >> I
> >> >imagine there'd be five votes that the EC does not prohibit the grants
> to
> >> >churches.  (Alito is obviously much more likely than was O'Connor to
> >> accept
> >> >the rationale of the Thomas opinion in *Mitchell*.)  Even so, you'd
> think
> >> >that Missouri would have emphasized that such funding is
> constitutionally
> >> >problematic under governing doctrine (it didn't do so in its brief),
> and
> >> >that a court of appeals would at least address the question.
> >> >
> >> >On Sun, May 31, 2015 at 8:01 PM, Marty Lederman <
> lederman.ma...@gmail.com
> >> >
> >> >wrote:
> >> >
> >> >> Under *Mitchell v. Helms*, would it even be constitutionally
> >> *permissible* for
> >> >> the state to give direct grant funding to the church?  Recall that
> SOC,
> >> in
> >> >> her governing opinion, rested quite heavily on the distinction
> between
> >> >> monetary and nonmonetary aid when it comes to direct aid (as opposed
> to
> >> >> vouchers):
> >> >>
> >> >> Justice Souter is *correct to note our continued recognition of the
> >> >> special dangers associated with direct money grants to religiou

RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Volokh, Eugene]

   Well, let me ask about this item, which I think we discussed 
some time ago on the list, from Laura Vozzella, Aftermath Gives New Confidence 
to Oklahomans, Journal-Rec. (Oklahoma City), Apr. 19, 1996:

The rebuilding effort at First United Methodist Church has been slowed by 
church-and-state red tape. The church, one of at least four damaged in the 
[Oklahoma City Federal Building] bombing . . . [sought] $12,000 from the 
Federal Emergency Management Agency to cover uninsured damages caused after the 
blast, when rescuers placed bloody bodies on the carpeted church floor and 
pitched tents in its newly resurfaced parking lot. FEMA refused by saying the 
aid would violate the constitutional separation of church and state. The agency 
later came around under some pressure from Oklahoma's congressional delegation.

   Marty, would your view be that the government should not have 
offered the church compensation, assuming that it was offering compensation to 
many other private buildings that were similarly damaged?  What if there’s an 
earthquake, and FEMA offers low-interest rebuilding loans (not to everyone to 
be sure, but to many applicants) – would the rule be, “everyone is eligible to 
apply for a low-interest loan – but not churches or religious schools”?

   Finally, let me ask whether the analysis would be any different 
if the money came tied to a mandate.  Say the state says, “all schools must do 
seismic retrofits – and we’ll pay for the retrofitting at all schools, just not 
at religious schools.”  Constitutionally mandated (at least as to the 
no-payment part; obviously the requirement of retrofitting isn’t itself 
mandated)?

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, May 31, 2015 8:44 PM
To: Douglas Laycock
Cc: Law & Religion issues for Law Academics
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground 
safety funds

"That doesn't mean that many people besides O'Connor think the distinction 
makes any sense."

Well, a whole slew of religious parties, their amici, and Justices, in cases 
from Witters on down, thought the distinction was of vital constitutional 
significance.  More to the point -- the point I was making -- under governing 
Supreme Court law the distinction makes all the difference in the world, 
whatever one thinks the doctrine ought to be.  A bunch of SCOTUS cases would 
come out the other way under Thomas's view.  Therefore you'd think the parties 
and the Eighth Circuit judges would at least have bothered to grapple with the 
doctrine, rather than simply stating, without citation, that "it now seems 
rather clear" that the rule is the opposite of what the governing precedent 
says it is.

And the fact that this is a selective grant program, in which the state makes 
discretionary decisions about which applicants get the dollars (what do you 
think the odds are that the Scientology or Wiccan churches would have been 
among the lucky recipients?) makes the omission even more striking.

Churches have not been constitutionally eligible to receive government grants 
--especially selective grants--for many decades.  Whatever one thinks about how 
the Court should construe the religion clauses, it would certainly be a very 
significant shift in longstanding doctrine for the Court even to allow Missouri 
to give grants to this church, let alone require it do so.

On Sun, May 31, 2015 at 10:36 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
I understand that. That doesn't mean that many people besides O'Connor think 
the distinction makes any sense.

The state's exercise of discretion matters, because the state might 
discriminate in ways that are hard to detect. Per capita distribution instead 
of vouchers does not matter, and so O'Connor's opinion is hard to take 
seriously. And I'm guessing that many judges don't pay it much heed after 
Zelman.

On Sun, 31 May 2015 21:33:37 -0400
 Marty Lederman mailto:lederman.ma...@gmail.com>> 
wrote:
>Zelman is inapposite.  It involved a voucher program in which aid was
>available to "a broad class of citizens who, in turn, direct[ed] government
>aid to religious schools wholly as a result of their own genuine and
>independent private choice."  By contrast, this is a direct grant program
>in which the state decides which entities get the grants, and sends the
>money directly to the entities.  The Court in Zelman specifically
>distinguished Mitchell and all the direct funding cases.
>
>On Sun, May 31, 2015 at 9:20 PM, Douglas Laycock 
>mailto:dlayc...@virginia.edu>>
>wrote:
>
>> I suspect that many judges have a hard time taking O'Connor's Mitchell
>> opinion seriously after Zelman -- even though O'Connor's opinion was
>> controlling and they are not supposed to anticipate overrulings.
>>
>> On Sun, 31 May 2015 21:08:20 -0400
>>  Marty Lederman mailto:lederman.ma..