Does the Establishment Clause bar even religion-neutral accommodations?

[Volokh, Eugene]

    I think the key to determine preference for religion is Harlan's
approach in Walz and Welsh:  If religious institutions are mentioned
alongside other similar institutions, that's not a preference, but if
they get special treatment that other similar institutions, that is.  In
Walz, religious institutions were treated similarly to lots of other
nonprofits.  In Welsh, churches were given a special benefit that wasn't
extended to any class of similar institutions. (Schools, religious and
otherwise, also had this benefit, but I don't see that as creating the
equal treatment that Harlan called for.)
 
    Even if Larkin is limited to delegation of government authority, I
think evenhanded delegation has to be permissible, though I realize that
there's something of a split on that in lower courts when it comes to
state statutes allowing private colleges to have their own police
forces.  But if it is limited to delegation of government authority,
then I'm happy to set it aside for purposes of this discussion, since,
as we agree, it wouldn't then be relevant to the broader accommodation
question we're discussing here.
 
    Eugene
 
________________________________

From: Jesse Merriam [mailto:jmerriam at gmail.com] 
Sent: Thursday, December 04, 2008 9:14 AM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: Does the Establishment Clause bar even religion-neutral
accommodations?



	Eugene, 
	
	So you're saying that mentioning religion in a law constitutes
facial preference for religion, even if non-religious groups are also
mentioned? Under that reasoning, wouldn't tax exemptions for charitable
organizations (including religious ones) also be facial preferences for
religion?  I thought that Walz treated NY's property tax exemption as
facially neutral.  
	
	I think the most accurate reading of these accommodation cases
is that religion-neutral accommodations are constitutional unless they
involve the delegation of some governmental authority.  Of course, this
would suggest that the exemption at issue in this discussion is
constitutional.  
	
	-Jesse
	

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20081204/a663aae8/attachment.htm