I concur with most of what Chip says, especially his important point that
the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
about the permissibility of diversion of the aid to religious activities
(although of course the majority might choose to take the opportunity to do
"People can debate to what extent this should matter, but I should note
that the funding criteria in Trinity Lutheran seem to be pretty
nondiscretionary as these things go."
FWIW, and as many of you know, I'm one who thinks it matters a great deal
(see pp.22-25 of
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
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
>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.
For those of us who haven't been following the case closely yet:
Why wouldn't this best be described as a grant of scrap rubber rather than as a
grant of funds/money? Should that characterization matter?
Mark
Mark S. Scarberry
Pepperdine University School of Law
P.S. Condolences to Green Bay
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
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
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
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
I just took a quick look at the briefs and decision below. Unless I missed
something, it appears that neither Missouri nor amici ACLU and Americans
United argued that the funding would violate the federal Establishment
Clause. This led the court of appeals to write: "We . . . recognize that
the
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.
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