Re: Excluding religious institutions from public safety benefits

[Levinson, Sanford V]

For what it's worth, I want to endorse the comments of Mark Graber and Marty re 
the dispositive importance of the fact that we're living in a welfare state 
that was probably literally unimaginable to Madison and his friends. 
Rehnquist's dissent in Thomas makes this point.

Also for what it's worth, when I began updating Robert McCloskey's The American 
Supreme Court in 1994--the latest edition has, incidentally, just gone to press 
in time for fall adoptions?--I suggested that the most important new role of 
the Court was monitoring the greatly enhanced welfare state that took off in 
the 1960s.

Sandy
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Re: Excluding religious institutions from public safety benefits

[Marty Lederman]

Agreed, Rick, my formulation was an oversimplified caricature--of course no
one is advocating for a blanket right to "opt out of the welfare state" or
to categorically avoid "sharing in its burdens."  I even think it's
possible to explain why the church in H-T should be allowed to do what
other employers are not--to fire an employee for threatening to file an ADA
suit--and to simultaneously argue that Missouri *cannot *establish a
prophylactic "no church funding" rule.  But surely, there's something at
least *a bit *discordant about the "religious institutional autonomy" and
"strict religious neutrality" norms that the Court will be entertaining
simultaneously in Zubik and Trinity, isn't there?

On Mon, Jan 18, 2016 at 9:36 AM, Rick Garnett  wrote:

> Dear Marty,
>
> I agree, certainly, that "thoughtful justification" is always important
> and welcome.  For what it's worth, though, I think it overstates the matter
> a bit to characterize the religious-institutionalism arguments as pressing
> a blanket right to "opt out of the welfare state" or even to avoid, as a
> general matter, "sharing in its burdens."  (I try to respond to a powerful
> form of this "opt out" argument, advanced by Robin West, here:
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).
>
> It is true, for sure, that many of these arguments invoke spheres,
> jurisdiction, sovereignty, autonomy, etc., in an effort explain why the
> entirely appropriate regulatory power of the welfare state does not or
> should not extend to certain matters.  But I don't see (or hear?) discord
> between, say, arguing for equal treatment / nondiscrimination in Trinity
> Lutheran and for church-autonomy in, say, Hosanna-Tabor.
>
> Best wishes,
>
> Rick
>
>
>
> On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
> wrote:
>
>> Mark, this is certainly true, and important:
>>
>> "The Remonstrance was written at a time when states did not provide
>> extensive benefits to most people or at least was not omnipresence in all
>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>> to figure out when lots of government pennies go to lots of different
>> things."
>>
>> And that's why almost everyone -- including on this list -- would not
>> have much trouble with religious organizations receiving *entitlements* that
>> are available to everyone, with police and fire protection being the
>> canonical example.  The difficulties, however, are (at least) twofold:
>>
>> 1.  Virtually all of these cases, including *Trinity Lutheran*, involve
>> not entitlements, but instead scarce (often competitive) resources, such as
>> selective grants.  In most such cases (but apparently not *LT*),
>> government decision-makers must make subjective judgments about which
>> recipients are most worthy, which obviously raises constitutional concerns
>> when churches are in the mix.  And even where the criteria are wholly
>> neutral and nondiscretionary, I think there's an uneasiness about the state
>> conferring highly desirable, very selective benefits on religious
>> institutions while others do without.  In part because of . . .
>>
>> 2.  Alan's point, which is that such institutions simultaneously
>> insist--often for very compelling reasons--that they should not be made to
>> share in the burdens of the welfare state, even when it comes to
>> obligations in the commercial sphere, involving virtually universal
>> obligations (see Zubik).  Moreover, we're witnessing a flourishing of
>> scholarship defending the notion of "separate" spheres and institutional
>> autonomy--the right to opt *out *of the welfare state, as it were--but
>> many of those same voices insist that the "autonomous" institutions are
>> entitled to equal treatment on the benefits side, even with respect to
>> scarce resources.  This (all the benefits, less-than-all of the burdens)
>> might well be very defensible; but it's certainly at least somewhat
>> discordant, and thus cries out for thoughtful justification.
>>
>>
>>
>> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
>> wrote:
>>
>>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
>>> the problem is not simply the original intent per se, but the welfare
>>> state.  The Remonstrance was written at a time when states did not provide
>>> extensive benefits to most people or at least was not omnipresence in all
>>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>>> to figure out when lots of governmet pennies go to lots of different things.
>>> __
>>
>>
>> ___
>> 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 

Re: Excluding religious institutions from public safety benefits

[Marty Lederman]

Mark, this is certainly true, and important:

"The Remonstrance was written at a time when states did not provide
extensive benefits to most people or at least was not omnipresence in all
aspects of their lives.  Not a penny shall go to a church is a lot harder
to figure out when lots of government pennies go to lots of different
things."

And that's why almost everyone -- including on this list -- would not have
much trouble with religious organizations receiving *entitlements* that are
available to everyone, with police and fire protection being the canonical
example.  The difficulties, however, are (at least) twofold:

1.  Virtually all of these cases, including *Trinity Lutheran*, involve not
entitlements, but instead scarce (often competitive) resources, such as
selective grants.  In most such cases (but apparently not *LT*), government
decision-makers must make subjective judgments about which recipients are
most worthy, which obviously raises constitutional concerns when churches
are in the mix.  And even where the criteria are wholly neutral and
nondiscretionary, I think there's an uneasiness about the state conferring
highly desirable, very selective benefits on religious institutions while
others do without.  In part because of . . .

2.  Alan's point, which is that such institutions simultaneously
insist--often for very compelling reasons--that they should not be made to
share in the burdens of the welfare state, even when it comes to
obligations in the commercial sphere, involving virtually universal
obligations (see Zubik).  Moreover, we're witnessing a flourishing of
scholarship defending the notion of "separate" spheres and institutional
autonomy--the right to opt *out *of the welfare state, as it were--but many
of those same voices insist that the "autonomous" institutions are entitled
to equal treatment on the benefits side, even with respect to scarce
resources.  This (all the benefits, less-than-all of the burdens) might
well be very defensible; but it's certainly at least somewhat discordant,
and thus cries out for thoughtful justification.



On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
wrote:

> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
> the problem is not simply the original intent per se, but the welfare
> state.  The Remonstrance was written at a time when states did not provide
> extensive benefits to most people or at least was not omnipresence in all
> aspects of their lives.  Not a penny shall go to a church is a lot harder
> to figure out when lots of governmet pennies go to lots of different things.
> __
___
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Re: Excluding religious institutions from public safety benefits

[Rick Garnett]

Dear Marty,

I agree, certainly, that "thoughtful justification" is always important and
welcome.  For what it's worth, though, I think it overstates the matter a
bit to characterize the religious-institutionalism arguments as pressing a
blanket right to "opt out of the welfare state" or even to avoid, as a
general matter, "sharing in its burdens."  (I try to respond to a powerful
form of this "opt out" argument, advanced by Robin West, here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).

It is true, for sure, that many of these arguments invoke spheres,
jurisdiction, sovereignty, autonomy, etc., in an effort explain why the
entirely appropriate regulatory power of the welfare state does not or
should not extend to certain matters.  But I don't see (or hear?) discord
between, say, arguing for equal treatment / nondiscrimination in Trinity
Lutheran and for church-autonomy in, say, Hosanna-Tabor.

Best wishes,

Rick



On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
wrote:

> Mark, this is certainly true, and important:
>
> "The Remonstrance was written at a time when states did not provide
> extensive benefits to most people or at least was not omnipresence in all
> aspects of their lives.  Not a penny shall go to a church is a lot harder
> to figure out when lots of government pennies go to lots of different
> things."
>
> And that's why almost everyone -- including on this list -- would not have
> much trouble with religious organizations receiving *entitlements* that
> are available to everyone, with police and fire protection being the
> canonical example.  The difficulties, however, are (at least) twofold:
>
> 1.  Virtually all of these cases, including *Trinity Lutheran*, involve
> not entitlements, but instead scarce (often competitive) resources, such as
> selective grants.  In most such cases (but apparently not *LT*),
> government decision-makers must make subjective judgments about which
> recipients are most worthy, which obviously raises constitutional concerns
> when churches are in the mix.  And even where the criteria are wholly
> neutral and nondiscretionary, I think there's an uneasiness about the state
> conferring highly desirable, very selective benefits on religious
> institutions while others do without.  In part because of . . .
>
> 2.  Alan's point, which is that such institutions simultaneously
> insist--often for very compelling reasons--that they should not be made to
> share in the burdens of the welfare state, even when it comes to
> obligations in the commercial sphere, involving virtually universal
> obligations (see Zubik).  Moreover, we're witnessing a flourishing of
> scholarship defending the notion of "separate" spheres and institutional
> autonomy--the right to opt *out *of the welfare state, as it were--but
> many of those same voices insist that the "autonomous" institutions are
> entitled to equal treatment on the benefits side, even with respect to
> scarce resources.  This (all the benefits, less-than-all of the burdens)
> might well be very defensible; but it's certainly at least somewhat
> discordant, and thus cries out for thoughtful justification.
>
>
>
> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
> wrote:
>
>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
>> the problem is not simply the original intent per se, but the welfare
>> state.  The Remonstrance was written at a time when states did not provide
>> extensive benefits to most people or at least was not omnipresence in all
>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>> to figure out when lots of governmet pennies go to lots of different things.
>> __
>
>
> ___
> 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 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Excluding religious institutions from public safety benefits

[Patrick Gillen]

Pauland I have had a cordial exchange off-list that cleared up any 
misunderstandingon our part.  As we all know, emails canbe misunderstood.


 
Inorder to dispel any ambiguity created by my short response let me simply 
saythe following.  I think discerningoriginal intent regarding the religious 
liberty clauses is very difficult inall but a few areas for reasons Paul has 
stated with great insight.  I can’t recall the places off-hand but have in mind 
at least his review of a book on the subject byJack Rakove.  I think Jackson’s 
famousline about the dreams of Joseph applies here with even more force here 
(again inall but a few areas).  Sandy has madethat point since I wrote.  So a 
lot ofMadison (and I’ve read a good bit too) is…a lot of Madison.  I myself see 
no clear original intent orprecedential practice that is dispositive as to 
these sorts of programs forreasons that the voluminous literature in the area 
elaborates in great detail.  For my part, I tend to think of the 
questionpresented here as akin to that addressed in Everson, which framed the 
issue alongthe lines of Eugene’s queries and I’m not surprised that this 
discussion hasalready moved in that direction.  So faras I’m concerned the 
holding in Everson points to the proper outcome here—call itplay in the joints 
or sensible balancing of provisions that as currentlyunderstood are in tension.

 Regards to all, PatPatrick T. Gillen, JD, PhDAssociate Professor of LawAve 
Maria School of Law1025 Commons CircleNaples, FL 34119 
 

On Sunday, January 17, 2016 6:39 PM, "Finkelman, Paul" 
<paul.finkel...@albanylaw.edu> wrote:
 

 #yiv9212927685 #yiv9212927685 -- P 
{margin-top:0;margin-bottom:0;}#yiv9212927685 I am not sure what part of my 
posting bothered Mr. Gillen (Prof?  He does not tell us who he is) so much, 
whether it was my attempt a little humor (to channel Madison) or my rather long 
and hardly facile attempt to distinguish between tax exemptions for churches 
and tax money going to churches.  My reading of Madison (and I have read a LOT 
of Madison) is that he had no problem with tax exemption for churches precisely 
because he was not anti-religion (nor am I) and realized that taxing churches 
could destroy them.  He had seen massive persecution in Va. of Baptists, 
Quakers, and other dissenters, and knew that if the political leaders could tax 
churches it was reasonable to expect economic persecution.  For the same 
reasons he opposed the anti-Catholic and anti-Semitic tests for office holding 
in the contemporary state constitutions. 
There were no such things as tax deduction or tax exemptions or deductions for 
charitable giving in Madison's time, so we can only guess that he would likely 
have approved of allowing for deductions for charitable giving (if there were 
such a tax system) and accepted that churches are charitable institutions.  But 
again, this is only an assumption.  And perhaps I am wrong and he would have 
seen such deductions as impermissible government support for religious 
institutions.  Certainly that is a reasonable argument.  Given the complexity 
of our world, however, it is hard to imagine treating a religious charity in a 
different way than a secular charity (for example, allowing a tax deduction for 
a donation to George Washington University but not to Georgetown University).
What we do know is that Madison emphatically opposed the government giving 
money, land, goods, or anything else of value to churches and believed that not 
a penny  (and that is his language) of taxpayer money should be handed over to 
churches. 

That would include scrap rubber.  On this I stand with our 4th president, and I 
hope Mr. Gillen does not think this is facile.
I realize there are complications here and I tried to address some of them in 
my previous post.  But I have said enough on this for the moment.

 *
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights LawCollege of LawUniversity 
of Saskatchewan15 Campus DriveSaskatoon, SK  S7N 5A6Canadac) 
518.605.0296paul.finkelman@albanylaw.edupaul.finkelman@yahoo.comand
Senior FellowPenn Program on Democracy, Citizenship, and 
ConstitutionalismUniversity of 
Pennsylvania*



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Patrick Gillen <pgille...@yahoo.com>
Sent: Sunday, January 17, 2016 5:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits I 
don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, 
Pat 

Sent from my iPhone. Please excuse any errors or informali

RE: Excluding religious institutions from public safety benefits

[Graber, Mark]

To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF, the 
problem is not simply the original intent per se, but the welfare state.  The 
Remonstrance was written at a time when states did not provide extensive 
benefits to most people or at least was not omnipresence in all aspects of 
their lives.  Not a penny shall go to a church is a lot harder to figure out 
when lots of governmet pennies go to lots of different things.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Patrick Gillen [pgille...@yahoo.com]
Sent: Monday, January 18, 2016 8:48 AM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

Paul and I have had a cordial exchange off-list that cleared up any 
misunderstanding on our part.  As we all know, emails can be misunderstood.

In order to dispel any ambiguity created by my short response let me simply say 
the following.  I think discerning original intent regarding the religious 
liberty clauses is very difficult in all but a few areas for reasons Paul has 
stated with great insight.  I can’t recall the places off-hand but have in mind 
at least his review of a book on the subject by Jack Rakove.  I think Jackson’s 
famous line about the dreams of Joseph applies here with even more force here 
(again in all but a few areas).  Sandy has made that point since I wrote.  So a 
lot of Madison (and I’ve read a good bit too) is…a lot of Madison.  I myself 
see no clear original intent or precedential practice that is dispositive as to 
these sorts of programs for reasons that the voluminous literature in the area 
elaborates in great detail.  For my part, I tend to think of the question 
presented here as akin to that addressed in Everson, which framed the issue 
along the lines of Eugene’s queries and I’m not surprised that this discussion 
has already moved in that direction.  So far as I’m concerned the holding in 
Everson points to the proper outcome here—call it play in the joints or 
sensible balancing of provisions that as currently understood are in tension.

Regards to all, Pat
Patrick T. Gillen, JD, PhD
Associate Professor of Law
Ave Maria School of Law
1025 Commons Circle
Naples, FL 34119




On Sunday, January 17, 2016 6:39 PM, "Finkelman, Paul" 
<paul.finkel...@albanylaw.edu> wrote:


I am not sure what part of my posting bothered Mr. Gillen (Prof?  He does not 
tell us who he is) so much, whether it was my attempt a little humor (to 
channel Madison) or my rather long and hardly facile attempt to distinguish 
between tax exemptions for churches and tax money going to churches.  My 
reading of Madison (and I have read a LOT of Madison) is that he had no problem 
with tax exemption for churches precisely because he was not anti-religion (nor 
am I) and realized that taxing churches could destroy them.  He had seen 
massive persecution in Va. of Baptists, Quakers, and other dissenters, and knew 
that if the political leaders could tax churches it was reasonable to expect 
economic persecution.  For the same reasons he opposed the anti-Catholic and 
anti-Semitic tests for office holding in the contemporary state constitutions.

There were no such things as tax deduction or tax exemptions or deductions for 
charitable giving in Madison's time, so we can only guess that he would likely 
have approved of allowing for deductions for charitable giving (if there were 
such a tax system) and accepted that churches are charitable institutions.  But 
again, this is only an assumption.  And perhaps I am wrong and he would have 
seen such deductions as impermissible government support for religious 
institutions.  Certainly that is a reasonable argument.  Given the complexity 
of our world, however, it is hard to imagine treating a religious charity in a 
different way than a secular charity (for example, allowing a tax deduction for 
a donation to George Washington University but not to Georgetown University).

What we do know is that Madison emphatically opposed the government giving 
money, land, goods, or anything else of value to churches and believed that not 
a penny  (and that is his language) of taxpayer money should be handed over to 
churches.

That would include scrap rubber.  On this I stand with our 4th president, and I 
hope Mr. Gillen does not think this is facile.

I realize there are complications here and I tried to address some of them in 
my previous post.  But I have said enough on this for the moment.


*
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
Canada
c) 518.605.0296
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
Univer

Re: Excluding religious institutions from public safety benefits

[K Chen]

Whether formally or implicitly, isn't the
opt-out-while-demanding-scarce-benefits-problem solved by some version of
the symmetry principle? The Amish are prevented from claiming the full
cloak of protections involved in incorporation and employment law if they
don't want to pay payroll taxes. Historical landmark legislation is a
blight upon our land, but it can be similarly fair: you give up aesthetic
control of your building facade, you get public funds to maintain that
facade. The government can't tell a church what ministers to hire, and the
government can't pay for their salaries.

This also has the benefit of not relying the distinction between universal
entitlement and scarce benefit programs, which is a trap. If historical
landmark subsidies are in a limited fund (say, $1,000,000 per year for a
municipality) and there is some prioritization mechanism must all houses of
worship immediately be excluded? I think most would say no if the criterion
has to do with likelihood of weather damage. On the other hand if the
criterion was a discretionary grant based on which building owner has been
a good influence on the community, we're in more trouble. What about
limited markets that are inherently zero-sum? There is a limited amount of
airwaves available for radio transmission and television transmission, but
last I checked Christian radio stations are still on the air.

The proper bound of a religious organization's autonomy is not based on the
rights of the religion. Rather the courts legitimate exercise of power is
limited by the matters it is competent over, and the Religion Clauses make
it quite clear that the court is not competent to judge doctrine,
sacredness, or the true content of any religion. Madison's Remonstrance was
written for a once-European people finally free of Europe's religious wars,
perhaps the purest expression of the abuse of state power by one religious
faction trying to quash another. Trying to prevent funds from migrating
into worship invites too much mischief from the state, the safeguards are
better made in how the grants are structured and disbursed.

-Kevin Chen

On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
wrote:

> Mark, this is certainly true, and important:
>
> "The Remonstrance was written at a time when states did not provide
> extensive benefits to most people or at least was not omnipresence in all
> aspects of their lives.  Not a penny shall go to a church is a lot harder
> to figure out when lots of government pennies go to lots of different
> things."
>
> And that's why almost everyone -- including on this list -- would not have
> much trouble with religious organizations receiving *entitlements* that
> are available to everyone, with police and fire protection being the
> canonical example.  The difficulties, however, are (at least) twofold:
>
> 1.  Virtually all of these cases, including *Trinity Lutheran*, involve
> not entitlements, but instead scarce (often competitive) resources, such as
> selective grants.  In most such cases (but apparently not *LT*),
> government decision-makers must make subjective judgments about which
> recipients are most worthy, which obviously raises constitutional concerns
> when churches are in the mix.  And even where the criteria are wholly
> neutral and nondiscretionary, I think there's an uneasiness about the state
> conferring highly desirable, very selective benefits on religious
> institutions while others do without.  In part because of . . .
>
> 2.  Alan's point, which is that such institutions simultaneously
> insist--often for very compelling reasons--that they should not be made to
> share in the burdens of the welfare state, even when it comes to
> obligations in the commercial sphere, involving virtually universal
> obligations (see Zubik).  Moreover, we're witnessing a flourishing of
> scholarship defending the notion of "separate" spheres and institutional
> autonomy--the right to opt *out *of the welfare state, as it were--but
> many of those same voices insist that the "autonomous" institutions are
> entitled to equal treatment on the benefits side, even with respect to
> scarce resources.  This (all the benefits, less-than-all of the burdens)
> might well be very defensible; but it's certainly at least somewhat
> discordant, and thus cries out for thoughtful justification.
>
>
>
> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
> wrote:
>
>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
>> the problem is not simply the original intent per se, but the welfare
>> state.  The Remonstrance was written at a time when states did not provide
>> extensive benefits to most people or at least was not omnipresence in all
>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>> to figure out when lots of governmet pennies go to lots of different things.
>> __
>
>
> 

RE: Excluding religious institutions from public safety benefits

[Laycock, H Douglas (hdl5c)]

I am juggling multiple deadlines and will not be responding to responses to 
this post or participating in a continuing debate. But the principle of neutral 
government incentives can largely reconcile recognizing the church’s right to  
funds in cases like Trinity Lutheran with its right to regulatory exemptions 
for religious practice.

First, the issue in the founders’ time was whether government could or should 
provide special funding – funding not available to secular activities – for the 
religious activities of churches. The answer was no, and that remains settled. 
None of the current disputes involve that question.

The modern question is whether government can provide neutral funding on 
nondiscriminatory criteria for secular services – education in secular 
subjects, health care, social services of various kinds – delivered in a 
religious environment by a religious institution. Money has the same value to 
everyone, so the only way to maintain religiously neutral incentives, with 
government neither encouraging nor discouraging individuals or organizations to 
become more or less religious, is to fund everybody or nobody – or to choose on 
objective and religiously neutral criteria. I agree with Marty that subjective 
criteria open the door to discrimination.

If government says it will fund secular services in a religious environment but 
not a secular environment, or vice versa, it powerfully encourages providers to 
qualify for the funding by making themselves more or less religious as 
government demands. Organizations that are fully committed one way or the other 
cannot switch and will suffer the resulting discrimination. But organizations 
near the line can make themselves more or less religious in order to qualify, 
and we see examples of this in the reported cases.

The same analysis applies to tax exemption for religious and secular 
non-profits.

The same analysis applies to regulatory exemptions when religious practice 
aligns with secular self interest. If a religious objection to tax on secular 
income – salaries, investment income, etc. – entitled the objector to a tax 
exemption, the anti-tax religion would draw millions of real or feigned 
adherents. But that is not the typical exemption case. Most religious practices 
are meaningless apart from the religious belief that gives them meaning, and 
many are personally burdensome from a secular perspective. Unlike money, the 
exemption does not have the same value for everyone.

Making a religious practice illegal, threatening practitioners with jail, 
fines, or loss of civil benefits, powerfully discourages that religious 
practice. But exempting the religious practice from regulation generally does 
not encourage others to adopt it. If I have no desire to practice someone 
else’s religion, that fact that an exemption means I could do so without 
penalty does not create any desire to practice that other person’s religion.

Of course there are line drawing issues around each of these points, but they 
are broadly applicable. Penalizing religion discourages it; exempting it from 
regulation generally does not encourage it. Funding secular providers but not 
religious providers discourages religion; funding them equally generally does 
not encourage it.

This also helps explain why religious and secular private speech should receive 
equal treatment, and why government speech should not take positions on 
religious questions, either promoting or attacking religious answers to those 
questions. Government silence is as close to neutral as we can come.

I first set out these propositions in Religious Liberty as Liberty, 7 J. 
Contemp. Legal Issues 349-52 (1996). I elaborate them more discursively in 
Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51 (2007).

And as Texas lawyers are still prone to saying at the end of affidavits:  
Further deponent sayeth not.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, January 18, 2016 9:23 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

Mark, this is certainly true, and important:

"The Remonstrance was written at a time when states did not provide extensive 
benefits to most people or at least was not omnipresence in all aspects of 
their lives.  Not a penny shall go to a church is a lot harder to figure out 
when lots of government pennies go to lots of different things."

And that's why almost everyone -- including on this list -- would not have much 
trouble with religious organizations receiving entitlements that are available 
to everyone, with police and fire protection being the canonical example.  The 
difficulties, however, ar

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

Hi Rick,


Viewing the question of religious exemptions and church autonomy on the one 
hand and equal access to government subsidies on the other from a broad 
perspective, I "hear" this discord all the time. I spend a lot of time speaking 
to various civic groups, church groups and the like -- very often advocating 
for religious liberty interests to liberal audiences. I don't claim to having 
ever convinced anyone of anything. But I do think that describing religious 
liberty exemptions as part of church-state package that includes limits on 
government funding of religious institutions makes people stop and think -- and 
perhaps reconsider -- their view that religious organization should not receive 
regulatory exemptions and must follow the same rules everyone else has to obey. 
Conversely, the argument that religious institutions are indistinguishable from 
secular institutions with regard to their eligibility for subsidies undercuts 
the legitimacy of claims for regulatory exemptions. I think this asymmetry is 
perceived to be gaming the system and a power grab. I suspect, although I 
certainly cannot prove my conjecture, that the movement toward equal access to 
government support has helped to undercut support for discretionary religious 
exemptions.


Alan



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Rick Garnett <rgarn...@nd.edu>
Sent: Monday, January 18, 2016 6:36 AM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

Dear Marty,

I agree, certainly, that "thoughtful justification" is always important and 
welcome.  For what it's worth, though, I think it overstates the matter a bit 
to characterize the religious-institutionalism arguments as pressing a blanket 
right to "opt out of the welfare state" or even to avoid, as a general matter, 
"sharing in its burdens."  (I try to respond to a powerful form of this "opt 
out" argument, advanced by Robin West, here:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).

[http://static.ssrn.com/Images/Header/logo_social.jpg]<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586>

'The Freedom of the Church': (Towards) an Exposition 
...<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586>
papers.ssrn.com
This Article was presented at a conference, and is part of a symposium, on the 
topic of "Freedom of the Church in the Modern Era." In addition to summarizing 
and re ...



It is true, for sure, that many of these arguments invoke spheres, 
jurisdiction, sovereignty, autonomy, etc., in an effort explain why the 
entirely appropriate regulatory power of the welfare state does not or should 
not extend to certain matters.  But I don't see (or hear?) discord between, 
say, arguing for equal treatment / nondiscrimination in Trinity Lutheran and 
for church-autonomy in, say, Hosanna-Tabor.

Best wishes,

Rick



On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
Mark, this is certainly true, and important:

"The Remonstrance was written at a time when states did not provide extensive 
benefits to most people or at least was not omnipresence in all aspects of 
their lives.  Not a penny shall go to a church is a lot harder to figure out 
when lots of government pennies go to lots of different things."

And that's why almost everyone -- including on this list -- would not have much 
trouble with religious organizations receiving entitlements that are available 
to everyone, with police and fire protection being the canonical example.  The 
difficulties, however, are (at least) twofold:

1.  Virtually all of these cases, including Trinity Lutheran, involve not 
entitlements, but instead scarce (often competitive) resources, such as 
selective grants.  In most such cases (but apparently not LT), government 
decision-makers must make subjective judgments about which recipients are most 
worthy, which obviously raises constitutional concerns when churches are in the 
mix.  And even where the criteria are wholly neutral and nondiscretionary, I 
think there's an uneasiness about the state conferring highly desirable, very 
selective benefits on religious institutions while others do without.  In part 
because of . . .

2.  Alan's point, which is that such institutions simultaneously insist--often 
for very compelling reasons--that they should not be made to share in the 
burdens of the welfare state, even when it comes to obligations in the 
commercial sphere, involving virtually universal obligations (see Zubik).  
Moreover, we're witnessing a flourishing of scholarship defending the notion of 
"separate" spheres and institutional autonomy--the right to opt out of the 
welfare state, as it were--but many of 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

Since Doug isn't going to respond and most members of the list have written 
about these issues at some length, let me make two very brief points here.


The focus of the discussion is the government funding of religious 
institutions. Doug is correct that if funds are made available to institutions 
that provide services in a secular environment but not to institutions that 
provide services in a religious environment, the availability of that money 
will encourage institutions to make themselves less religious or suffer 
discrimination. If those same funds are provided to a religious institutions 
which retain the authority to 1. discriminate on the basis of religion in 
hiring staff to provide the government funded services; 2. to exercise 
discretionary authority as to who will receive the government funded services 
or the kind and magnitude of the benefits to be received; 3. to proselytize 
clients or require participation in religious exercise by beneficiaries etc. -- 
I think that will create the same kind of pressure for people to make 
themselves more religious or suffer discrimination. In one case government 
money is used by the state in a way that influences religious choice. In the 
other case the same government money is used by a religious institution to 
influence religious choice.


My second point is that Doug's analysis focuses on one variable: is the 
government's action with regard to subsidies or regulatory exemptions likely to 
tempt people to become more or less religious -- to adopt or forego religious 
practices. I do not dispute that this is an important consideration, but there 
are other variables and values in play here. To take one example, and it is 
only one, there is something of a speech value in play. Freeing institutions 
from regulations empowers them, facilitates their ability to further their 
goals, reinforces their control over their members, and reinforces their 
emphasis on their stated mission. In a competitive market place of ideas, 
freeing certain institutions from regulations has a distorting effect that 
favors the exempted institutions. One may reasonably argue that this distortion 
is outweighed by limits on the funding of religious institutions. But the 
distortion exists and should be constitutionally significant (that is, it 
cannot be ignored, but may not be dispositive standing alone in resolving 
doctrinal disputes). Would anyone argue that a regime that only exempted 
secular organizations from regulations that interfered with their belief based 
institutional autonomy interests had no constitutional significance because of 
its de minimis consequences?


Alan



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Sent: Monday, January 18, 2016 7:50 AM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits


I am juggling multiple deadlines and will not be responding to responses to 
this post or participating in a continuing debate. But the principle of neutral 
government incentives can largely reconcile recognizing the church’s right to  
funds in cases like Trinity Lutheran with its right to regulatory exemptions 
for religious practice.



First, the issue in the founders’ time was whether government could or should 
provide special funding – funding not available to secular activities – for the 
religious activities of churches. The answer was no, and that remains settled. 
None of the current disputes involve that question.



The modern question is whether government can provide neutral funding on 
nondiscriminatory criteria for secular services – education in secular 
subjects, health care, social services of various kinds – delivered in a 
religious environment by a religious institution. Money has the same value to 
everyone, so the only way to maintain religiously neutral incentives, with 
government neither encouraging nor discouraging individuals or organizations to 
become more or less religious, is to fund everybody or nobody – or to choose on 
objective and religiously neutral criteria. I agree with Marty that subjective 
criteria open the door to discrimination.



If government says it will fund secular services in a religious environment but 
not a secular environment, or vice versa, it powerfully encourages providers to 
qualify for the funding by making themselves more or less religious as 
government demands. Organizations that are fully committed one way or the other 
cannot switch and will suffer the resulting discrimination. But organizations 
near the line can make themselves more or less religious in order to qualify, 
and we see examples of this in the reported cases.



The same analysis applies to tax exemption for religious and secular 
non-profits.



The same analysis applies to regulatory exemptions when religious 

RE: Excluding religious institutions from public safety benefits

[Levinson, Sanford V]

As is obvious, all "neutrality" principles depend on agreement on the baseline. 
 When I was teaching courses on the Constitution and the welfare state, I often 
began with the UAW food stamp case, in which the majority solemnly asserted 
that Congress was simply trying to "level the playing field" in depriving 
strikers (and their families) of food stamps, while Justice Marshall was 
accurately describing it as part of the vehemently anti-union program of the 
newly empowered Republican Party.  This is, of course, the identical debate 
surrounding Friedrich.  I think Lewis Powell must be smiling from the grave at 
the extent to which the Supreme Court has become rabidly anti-union; others, of 
course, will present a quite different analysis, no doubt adopting "neutralist" 
language.

It's not that I'm opposed to neutrality arguments; it is, rather, that I rarely 
think they will really persuade anyone who begins with a different baseline.  
Consider, e.g., whether the United States and the states systematically favor 
Christianity by adopting Sunday as the ostensible day of rest.  Surely the 
answer is yes.  One of the additions to the new edition of our casebook is 
consideration of the fascinating debate during the Jacksonian era about mail 
delivery on Sunday, and the proclamation by the Baptist senator who headed the 
relevant committee that separation of church and state required that the US be 
indifferent to the Christian Sabbath (and thus deliver mail).  It was not until 
1912 that Sunday delivery was finally stopped.  Should that have been ruled 
unconstitutional then, or now, as a violation of the "neutrality" principle?

What all laws do is put pressure on people to conform with the law, especially 
when benefits or burdens are attached.  High taxes, as Ben Carson points out, 
makes it harder for religious individuals to tithe, as a practical matter.  So 
what?

sandy



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Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> ________
> From: "Volokh, Eugene"
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religi

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

And recruitment of new members.


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Alan E Brownstein

Date: Sun, Jan 17, 2016 2:38 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:Re: Excluding religious institutions from public safety benefits


It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark" <mgra...@law.umaryland.edu> 
> wrote:
>
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
>
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
>
>   Eugene
>
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
>
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
>
> Indeed,

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Indeed they are; but does it follow that the government should be 
required to, or even allowed to, refuse to offer health and safety grants on an 
evenhanded basis to such preschools?  Again, asbestos remediation, earthquake 
retrofitting, mosquito abatement, and protection against criminal attack all in 
some measure improve the preschool, and make it more appealing to parents -- at 
least as much, I think, as playground resurfacing would.

Eugene

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, January 17, 2016 12:38 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark" <mgra...@law.umaryland.edu> 
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
> [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I suppose it's possible, but it doesn't seem that likely.  From 
> what I've seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like - not the optimal place for an "'old 
> time religion' tent revival" or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don't use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they're standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety 
> benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law 
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of 
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> ________
> From: "Volokh, Eugene" 
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I'm not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don't care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that's more earthquake safe, or th

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: RE: Excluding religious institutions from public safety benefits
> 
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
> 
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
> 
>Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> ________
> From: "Volokh, Eugene"
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religious instruction on the playground.
> 
> And a building that's more earthquake safe, or that has asbestos removed, or
> that has a security guard, or lacks dangerous mosquitoes outside, actually is
> slightly more attractive as space for worship and religious instruction:  Some
> people might be more willing to send their kids to a school or a church that's
> earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to
> a church or school that seems dangerous.  The effect won't be vast, but again
> it's not like the extra benefit of a rubberized surface for worship and 
> religious
> instruction is vast, e

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.


However, I think a partial answer  would be the following:


1:  the government provides all sorts of "external" services to all people in 
society, police, fire, roads, sewers, trash pick up, snow removal, etc.  
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams, 
Kingdom Halls, etc). get these like everyone else.


2:  Not for profit entities get all sorts of tax breaks, and religious 
institutions fit that bill.  If the religious institutions are running 
businesses to support their activities I would not give them the same tax 
breaks for those businesses.  So, if the church also owns an apartment complex, 
and the profit from the apartments goes to support the church, I would think 
the apartment complex as a business should pay real estate and other taxes just 
like anyone else. And along the same line, religious buildings should pay use 
taxes for water, sewers, etc.


3:  assessing fair market value for a church is impossible and not taxing 
religious buildings fits with other non-profits -- museums, schools, etc.  (for 
example to tax Trinity Church in lower Manhattan at fair market value would put 
out of business -- the power to tax in this case would be the power to destroy, 
to quote Marshall)


4:  The government should not be in the business of rebuilding churches.  It 
the church has asbestos issues it needs to fix them.  It the church school 
can't fix it then the church school may have to close.  Otherwise, we have tax 
dollars fixing religious buildings, paying to replace religious symbols, 
alters, etc. etc.  That is not good for churches or the state.


5:  I never suggested removing tax deductibility.  It did not exist in 
Madison's time, but he never suggested taxing churches.  For tax purposes, 
churches are like other non-profits.  Any alternative, would put them out of 
business.


6: Security guards pose an interesting question.  Most private businesses pay 
for their own "internal" security but the police can guard a building.  Have a 
police car parked out front; but have private security inside of private 
institutions.  It is not a hard concept.  My Temple in Tulsa did it every 
Friday night.  My Temple in Albany did not.  Either way, it was private.   Some 
churches provide their own security from members.





*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Sunday, January 17, 2016 4:28 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits


So if there is a gang violence problem at schools, and the 
government gives grants to schools with the most serious problems to hire a 
security guard, the government may – indeed, it sounds like “must” – refuse to 
do the same for religious schools?



What about tax deductibility of contributions, and the property 
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock, 
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as 
involving a form of subsidy?  May (and must) the government refuse to extend 
these benefits, available to a vast range of secular nonprofits, to religious 
institutions?



What about in-kind benefits, such as free or subsidized sewer 
access, trash pickup, fire protection, or police protection?  May (and must) 
the government refuse to provide equal access to such things to churches and 
religious schools?



If it is really objectionable to take one penny of a citizen’s 
money to support any church or religion even through an evenhanded benefit 
program, then wouldn’t the government have to exclude religion from all these 
benefits?  Conversely, if the government can offer such benefits, it seems to 
me 

RE: Excluding religious institutions from public safety benefits

[Graber, Mark]

For the record, my reform temple regularly held religious activities in the 
playground.  A playground is a very good place for making religious points for 
6 and 7 year olds.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, January 17, 2016 12:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits

   I suppose it’s possible, but it doesn’t seem that likely.  From 
what I’ve seen, the springy recycled-tire surface tends to be used by swing 
sets, monkey bars, slides, and the like – not the optimal place for an “’old 
time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
field, a baseball diamond, or tennis courts might be a better place, but I 
think they generally don’t use rubber surfaces (since that would throw off the 
play of the game).

   But in any event, if such a service is held on a resurfaced 
playground, the resurfacing would have done little to help the service; the 
service can be held on all kinds of surfaces.  Resurfacing is important when 
kids are running, climbing, and tumbling, not when they’re standing still.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





Call
Send SMS
Call from mobile
Add to Skype
You'll need Skype CreditFree via Skype



From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark" <mgra...@law.umaryland.edu> 
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
> 
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

So if there is a gang violence problem at schools, and the 
government gives grants to schools with the most serious problems to hire a 
security guard, the government may - indeed, it sounds like "must" - refuse to 
do the same for religious schools?

What about tax deductibility of contributions, and the property 
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock, 
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as 
involving a form of subsidy?  May (and must) the government refuse to extend 
these benefits, available to a vast range of secular nonprofits, to religious 
institutions?

What about in-kind benefits, such as free or subsidized sewer 
access, trash pickup, fire protection, or police protection?  May (and must) 
the government refuse to provide equal access to such things to churches and 
religious schools?

If it is really objectionable to take one penny of a citizen's 
money to support any church or religion even through an evenhanded benefit 
program, then wouldn't the government have to exclude religion from all these 
benefits?  Conversely, if the government can offer such benefits, it seems to 
me that this is because the prohibition is on taking money to support religion 
because of its religiosity, rather than to offer religious people and 
institutions equal access to broadly available benefits.

Eugene

From: Finkelman, Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene <vol...@law.ucla.edu>; Law & Religion issues for Law 
Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits


Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?



Sent from my T-Mobile 4G LTE device



-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Graber, 
> Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, Janua

Re: Excluding religious institutions from public safety benefits

[Scarberry, Mark]

The petition for cert says the grant could only be used to pay for scrap rubber 
and delivery costs-- not even for site prep or any kind of labor. There is no 
need to audit the church's finances but only to trace these particular funds. 
It would be easy to structure this as a draft payable to the scrap rubber 
seller. Again, it is functionally the provision of scrap rubber, not funds.

Mark Scarberry

Sent from my iPhone

On Jan 17, 2016, at 2:51 PM, Patrick Gillen 
> wrote:

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.

[snip]

___
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Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

I am not sure what part of my posting bothered Mr. Gillen (Prof?  He does not 
tell us who he is) so much, whether it was my attempt a little humor (to 
channel Madison) or my rather long and hardly facile attempt to distinguish 
between tax exemptions for churches and tax money going to churches.  My 
reading of Madison (and I have read a LOT of Madison) is that he had no problem 
with tax exemption for churches precisely because he was not anti-religion (nor 
am I) and realized that taxing churches could destroy them.  He had seen 
massive persecution in Va. of Baptists, Quakers, and other dissenters, and knew 
that if the political leaders could tax churches it was reasonable to expect 
economic persecution.  For the same reasons he opposed the anti-Catholic and 
anti-Semitic tests for office holding in the contemporary state constitutions.


There were no such things as tax deduction or tax exemptions or deductions for 
charitable giving in Madison's time, so we can only guess that he would likely 
have approved of allowing for deductions for charitable giving (if there were 
such a tax system) and accepted that churches are charitable institutions.  But 
again, this is only an assumption.  And perhaps I am wrong and he would have 
seen such deductions as impermissible government support for religious 
institutions.  Certainly that is a reasonable argument.  Given the complexity 
of our world, however, it is hard to imagine treating a religious charity in a 
different way than a secular charity (for example, allowing a tax deduction for 
a donation to George Washington University but not to Georgetown University).


What we do know is that Madison emphatically opposed the government giving 
money, land, goods, or anything else of value to churches and believed that not 
a penny  (and that is his language) of taxpayer money should be handed over to 
churches.


That would include scrap rubber.  On this I stand with our 4th president, and I 
hope Mr. Gillen does not think this is facile.


I realize there are complications here and I tried to address some of them in 
my previous post.  But I have said enough on this for the moment.



*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Patrick Gillen <pgille...@yahoo.com>
Sent: Sunday, January 17, 2016 5:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
<paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.


However, I think a partial answer  would be the following:


1:  the government provides all sorts of "external" services to all people in 
society, police, fire, roads, sewers, trash pick up, snow removal, etc.  
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams, 
Kingdom Halls, etc). get these like everyone else.


2:  Not for profit entities get all sorts of tax breaks, and religious 
institutions fit that bill.  If the religious institutions are running 
businesses to support their activities I would not give them the same tax 
breaks for those businesses.  So, if the church also owns an apartment complex, 
and the profit from the apartments goes to support the church, I would think 
the apartment complex as a business should pay real estate and other taxes just 
like anyone else. And along the same line, religious buildings should pay use 
taxes for water, se

Re: Excluding religious institutions from public safety benefits

[Paul Finkelman]

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.
 
**
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof 
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK  S7N 5A6   
canadapaul.finkel...@yahoo.com
c) 518.605.0296
andSeniorFellowDemocracy, Citizenship and Constitutionalism Program
Universityof Pennsylvania




CallSend SMSCall from mobileAdd to SkypeYou'll need Skype CreditFree via Skype
 

  From: "Volokh, Eugene" <vol...@law.ucla.edu>
 To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> 
 Sent: Saturday, January 16, 2016 6:25 PM
 Subject: RE: Excluding religious institutions from public safety benefits
   
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{}#yiv7323085659    I’m not sure how upgrading the playground will 
make it materially more usable as space for worship and religious instruction.  
Few institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaceswhen using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.    And a building that’s more earthquake safe, 
or that has asbestos removed, or that has a security guard, or lacks dangerous 
mosquitoes outside, actually is slightly more attractive as space for worship 
and religious instruction:  Some people might be more willing to send their 
kids to a school or a church that’s earthquake-safe, asbestos-remediated, 
mosquito-free, or well-guarded than to a church or school that seems dangerous. 
 The effect won’t be vast, but again it’s not like the extra benefit of a 
rubberized surface for worship and religious instruction is vast, either.    
Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surelywill be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?    Eugene    Chip writes:    From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits    
Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:    1.  Eugene's examples all involve health and safety. None can be 
diverted to religious use; all make religious use, and all other uses of the 
property, healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to 
schools, public and private, in poor areas.  The aid included things like 
computers, books, AV equipment, etc.  Plurality said that neutral 
distributional criteria (public and private schools, no sectarian 
discrimination) is all you need.  Dissent said divertibility of aid to 
religious use is fatal.  Controlling opinion, SOC-SB, said the Establishment 
Clause concern is actual diversion, not divertibility, so the program is OK 
because it contains adequate (and non-entangling) safeguards against religious 
use. That is the Establishment Clause right now.    Trinity Lutheran Church 
seems to me to fall between Eugene's example

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   I suppose it’s possible, but it doesn’t seem that likely.  From 
what I’ve seen, the springy recycled-tire surface tends to be used by swing 
sets, monkey bars, slides, and the like – not the optimal place for an “’old 
time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
field, a baseball diamond, or tennis courts might be a better place, but I 
think they generally don’t use rubber surfaces (since that would throw off the 
play of the game).

   But in any event, if such a service is held on a resurfaced 
playground, the resurfacing would have done little to help the service; the 
service can be held on all kinds of surfaces.  Resurfacing is important when 
kids are running, climbing, and tumbling, not when they’re standing still.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimi

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I appreciate Micah's clarifying the thrust of my point.


It may be that the idea of play in the joints is better understood and 
conceptualized when one considers the way the state approaches its relationship 
with religious institutions from a broad perspective. Thus, the special 
treatment a state provides religious institutions by protecting them against 
government regulations far more than the Constitution requires is relevant to 
the question of whether the state also may limit subsidies to religious 
institutions more than the Constitution requires. While individual laws and 
subsidy decisions  are evaluated separately that evaluation may properly 
reflect the broader framework of church-state relations adopted by the state on 
which the law or subsidy decision is based.


As to Chips suggestion that the accommodations I describe would violate the 
Establishment Clause, his point is well taken in that in my haste I failed to 
include a requirement that the accommodations in question apply to regulations 
that substantially burden the religious exercise of religious institutions.


Let me add that important foundation to the accommodations I packaged together 
earlier.


Here, a law protecting religious land uses from general land use regulations 
that substantially burden the religious exercise of religious institutions 
paraphrases RLUIPA and provides religious institutions significant protection 
against land use regulations which is unavailable to secular institutions.


A law protecting religious institutions against any government regulation that 
substantially burdens its religious exercise unless the regulation is 
determined to be the least restrictive means of furthering a compelling state 
interest paraphrases RFRA. Again, this protection is unavailable to secular 
institutions.


Religious institutions are already protected from several generally applicable 
anti-discrimination laws. Some of this protection is constitutionally required 
as in Hosanna Tabor. It is not clear to me that a state statute defining a 
ministerial exception beyond what the Constitution has been held to require is 
a per se violation of the Establishment Clause -- although I very much 
appreciate the argument that at some point such a law would be an Establishment 
Clause violation. And, of course, Title VII exempts religious organizations to 
some extent from the prohibition against discrimination in hiring on the basis 
of religion. Further, I recognize that the ongoing debate about exempting 
religious organizations from laws protecting members of the LGBT community and 
same-sex couples against discrimination implicates Establishment Clause 
concerns. But it is not clear to me that any and all such exemptions violate 
the Establishment Clause. Accordingly, I think it is plausible to include in my 
package laws that immunize religious institutions from many (but certainly not 
all) generally applicable anti-discrimination laws.


But again, my primary point does not relate to any one of these particular 
accommodations. It is that the fact that a state provides a substantial number 
of religious accommodations to religious institutions -- which non-religious 
persons and institutions often consider to be unjustified privileges -- may be 
relevant to the way we evaluate the play in the joints when the same state 
limits subsidies available to religious institutions.


Alan




From: Alan E Brownstein
Sent: Saturday, January 16, 2016 6:55 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits



>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.ed

RE: Excluding religious institutions from public safety benefits

[Friedman, Howard M.]

Note that the federal government is already making grants to houses of worship 
under the Department of Homeland Security's Nonprofit Security Grants program 
to strengthen security safeguards at nonprofit institutions that are 
particularly likely to be the targets of terror attacks. Apparently funded at 
$20 million in latest budget bill. In the past, a number of synagogues have 
received grants.

More broadly, does anyone think that with 6 Catholic justices on the Court 
there is a possibility that the Court might use the Trinity Lutheran case to 
find state Blaine Amendments unconstitutional because of the anti-Catholic 
sentiment that originally motivated their passage in many states?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, January 16, 2016 6:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Ira Lupu <icl...@law.gwu.edu>
Sent: Saturday, January 16, 2016 12:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state constitutional problem.  There's 
the play in the joints.  This is not how Missouri argued this case below, but 
it is how it should argue in the Supreme Court.

2.  Alan's massive package of church-state separation policies -- each one has 
to be evaluated retail.  And, for starters, the regulatory immunities he 
suggests -- e.g., Need not comply with 1) many land use regulations that 
secular institutions must obey;  2) any government regulation unless the 
regulation was determined to be the least restrictive means of furthering a 
compelling state interest; and 3) many generally applicable anti-discrimination 
laws -- cannot possibly be justified under the Establishment Clause.  They all 
prefer religious entities over analogous secular entities (e.g., a secular 
pre-school or day care center) without any demonstration that the immunity is 
necessary to, or even related to, freeing the religious entity from 
restrictions on its ability to carry out its religious mission.

Bottom line -- direct financial aid has to be disconnected from religious 
mission.  Accommodations have to remove distinctively religious burdens, and 
therefore permit the  private accomplishment of religious mission (not just 
make it cheaper to carry out; if that is all that is happening, that would be 
impermissible aid), as well as not inflict significant harm on third parties, 
which some of Alan's proposed immunities would do.  These are all Establishment 
Clause principles reflected in the current law, are they not?

On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Two

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I wonder if I might offer a modest (well maybe not so modest) amendment to 
Eugene's excellent hypotheticals.


Say that the government adopted a package bill. It provided that:


A. Houses of worship and directly affiliated schools and day care centers:


Need not comply with many land use regulations that secular institutions must 
obey.


Need not comply with any government regulation unless the regulation was 
determined to be the least restrictive means of furthering a compelling state 
interest


Need not comply with many generally applicable anti-discrimination laws (the 
extent of this immunity would be spelled out in the regulatory package)


Were protected against tort liability relating to professional negligence and 
emotional distress causes of action


Would receive favorable tax treatment with regard to the housing of clergy


B. Further, Houses of worship and directly affiliated schools and day care 
centers would not be eligible for cash grants offered generally to private 
institutions (even grants providing reimbursements for expenses). However, they 
would be entitled to receive government services generally provided to private 
institutions by public employees including guards to protect against gang 
violence and the spraying of grounds to eradicate mosquitos carrying dangerous 
virus.


A preamble to the package would explain that the legislature was trying to 
further some of the goals of the separation of church and state by limiting 
both governmental interference with religious institutions and government 
subsidizing of religious institutions.


Would this legislation be constitutional?


Alan





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Saturday, January 16, 2016 9:02 AM
To: Law & Religion issues for Law Academics
Subject: Excluding religious institutions from public safety benefits


   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:



   1.  Removing potentially cancer-causing asbestos.



   2.  Retrofitting for earthquake safety.



   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).



   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).



(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that religious institutions - and thus the children who go to 
those institutions - can't benefit from such grants.



   If you think that the exclusion in Trinity Lutheran is 
constitutional, do you think all these exclusions would be, too?



   If you think that the exclusion in Trinity Lutheran is actually 
mandated by the First Amendment, do you think all these exclusions would be, 
too?



   Eugene
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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 
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messages to others.

Re: Excluding religious institutions from public safety benefits

[Ira Lupu]

Neither Eugene's or Alan's questions invite quick or easy answers, but
here's a start:

1.  Eugene's examples all involve health and safety. None can be diverted
to religious use; all make religious use, and all other uses of the
property, healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to
schools, public and private, in poor areas.  The aid included things like
computers, books, AV equipment, etc.  Plurality said that neutral
distributional criteria (public and private schools, no sectarian
discrimination) is all you need.  Dissent said divertibility of aid to
religious use is fatal.  Controlling opinion, SOC-SB, said the
Establishment Clause concern is actual diversion, not divertibility, so the
program is OK because it contains adequate (and non-entangling) safeguards
against religious use. That is the Establishment Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and
Mitchell.  The playground will be safer for play, but it will also be more
useable as space for worship and religious instruction.  Improving the
playground sufficiently would be (imperfectly) analogous to adding a new
classroom to a religious school.  Divertible to religious use -- without
safeguards, unconstitutional.  Missouri could reasonably conclude that a
grant to churches and church schools for playground surfaces would require
safeguards that would indeed entangle the church and the state (how do you
enforce the restriction on religious instruction on the playground in a
pre-school?)  So, whether or not the grant would ultimately violate the
First Amendment, it would present a problem of direct government support
for religious instruction, and Missouri wants to avoid that federal and
state constitutional problem.  There's the play in the joints.  This is not
how Missouri argued this case below, but it is how it should argue in the
Supreme Court.

2.  Alan's massive package of church-state separation policies -- each one
has to be evaluated retail.  And, for starters, the regulatory immunities
he suggests -- e.g., Need not comply with 1) many land use regulations that
secular institutions must obey;  2) any government regulation unless the
regulation was determined to be the least restrictive means of furthering a
compelling state interest; and 3) many generally applicable
anti-discrimination laws -- cannot possibly be justified under the
Establishment Clause.  They all prefer religious entities over analogous
secular entities (e.g., a secular pre-school or day care center) without
any demonstration that the immunity is necessary to, or even related to,
freeing the religious entity from restrictions on its ability to carry out
its religious mission.

Bottom line -- direct financial aid has to be disconnected from religious
mission.  Accommodations have to remove distinctively religious burdens,
and therefore permit the  private accomplishment of religious mission (not
just make it cheaper to carry out; if that is all that is happening, that
would be impermissible aid), as well as not inflict significant harm on
third parties, which some of Alan's proposed immunities would do.  These
are all Establishment Clause principles reflected in the current law, are
they not?

On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
wrote:

>Two quick question for list members about Trinity Lutheran,
> if I might.  Say that the government offered grants to schools and day care
> centers, on a largely nondiscretionary basis, for the following:
>
>
>
>1.  Removing potentially cancer-causing asbestos.
>
>
>
>2.  Retrofitting for earthquake safety.
>
>
>
>3.  Hiring security guards to prevent gang violence (and
> intercede in mass shootings and the like).
>
>
>
>4.  Eradicating mosquitos on the property that carry some
> dangerous virus (e.g., West Nile Virus).
>
>
>
> (Assume all the grants came with the usual penalties for misuse of state
> funds, including criminal penalties for willful misuse.)  But say that the
> government expressly stated that religious institutions – and thus the
> children who go to those institutions – can’t benefit from such grants.
>
>
>
>If you think that the exclusion in Trinity Lutheran is
> constitutional, do you think all these exclusions would be, too?
>
>
>
>If you think that the exclusion in Trinity Lutheran is
> actually mandated by the First Amendment, do you think all these exclusions
> would be, too?
>
>
>
>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 

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state constitutional problem.  There's 
the play in the joints.  This is not how Missouri argued this case below, but 
it is how it should argue in the Supreme Court


On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:

   1.  Removing potentially cancer-causing asbestos.

   2.  Retrofitting for earthquake safety.

   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).

   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).

(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that 

Re: Excluding religious institutions from public safety benefits

[Ira Lupu]

Eugene, I suspect there are 5 votes to uphold all four of your health and 
safety examples as not prohibited by the First Amendment. Likewise a grant for 
playground surfaces.  But I also see that your cases can be seen as close, for 
reasons you suggest, so perhaps a state could justify excluding religious 
institutions from any of those programs under a state constitutional provision 
like that in Missouri. Locke involved a voucher type program, clearly allowable 
under the Establishment Clause. Play in the joints is all about the scope of 
state discretion to separate its funds from religious uses more then the 
federal Constitution requires.

Howard, Trinity Lutheran Church did not challenge the Missouri constitutional 
provision on its face, so I do not believe the anti-Catholic animus theory is 
open for adjudication in the Supreme Court.

Sent from my iPhone

> On Jan 16, 2016, at 6:42 PM, Friedman, Howard M. 
> <howard.fried...@utoledo.edu> wrote:
> 
> Note that the federal government is already making grants to houses of 
> worship under the Department of Homeland Security's Nonprofit Security Grants 
> program to strengthen security safeguards at nonprofit institutions that are 
> particularly likely to be the targets of terror attacks. Apparently funded at 
> $20 million in latest budget bill. In the past, a number of synagogues have 
> received grants.
> 
> More broadly, does anyone think that with 6 Catholic justices on the Court 
> there is a possibility that the Court might use the Trinity Lutheran case to 
> find state Blaine Amendments unconstitutional because of the anti-Catholic 
> sentiment that originally motivated their passage in many states?
> 
> Howard Friedman
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Saturday, January 16, 2016 6:25 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
>  
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
>  
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes – indeed, I’d think that’s 
> quite common – but a church or a school definitely would use the safer 
> buildings for religious purposes.  Chip, under your proposal, wouldn’t a 
> state therefore be equally free to say that “play in the joints” lets it deny 
> all those safety grants (otherwise generally available to all other 
> institutions) to religious institutions?
>  
> Eugene
>  
> Chip writes:
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Saturday, January 16, 2016 12:14 PM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
>  
> Neither Eugene's or Alan's questions invite quick or easy answers, but here's 
> a start:
>  
> 1.  Eugene's examples all involve health and safety. None can be diverted to 
> religious use; all make religious use, and all other uses of the property, 
> healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
> public and private, in poor areas.  The aid included things like computers, 
> books, AV equipment, etc.  Plurality said that neutral distributional 
> criteria (pu

Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:

   1.  Removing potentially cancer-causing asbestos.

   2.  Retrofitting for earthquake safety.

   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).

   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).

(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that religious institutions - and thus the children who go to 
those institutions - can't benefit from such grants.

   If you think that the exclusion in Trinity Lutheran is 
constitutional, do you think all these exclusions would be, too?

   If you think that the exclusion in Trinity Lutheran is actually 
mandated by the First Amendment, do you think all these exclusions would be, 
too?

   Eugene
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