Flores predictions

[Michael McConnell]

Although I have little to add to the discussion, so far, of the
"burden" issue in Flores, I would like to note why the free ex/RFRA
issue in Flores seems particularly strong to me, in light of the
relationship between establishment and free exercise.

One of the core aspects of disestablishment was to protect people
from being forced to pay for the establishment and maintenance of
church buildings. (If proof is needed, look at the language of the
early state constitutions.) It would plainly be unconstitutional for
the government to decide that St. Patrick's in Boerne, Texas (or any
other house of worship) is especially worthy of community support,
and thus to give the church a grant for the maintenance or
improvement of the building. It would not matter that the
government's reasons had to do with historical significance rather
than theological congeniality. (I think this is an uncontroversial
statement of the law. Am I wrong?)  This is something that must be
left to private initiative. The only way government could subsidize
the church in Boerne is through an extremely broad-based subsidy
scheme (like Section 501(c) of the IRC), not based on individuated
judgements about the worth of the building, or of the church.

It is therefore very odd that the government can make the judgment
that this church building is so very important to the public interest
that it may not be destroyed/remodeled. It seems to me that if this
sort of decision is off limits when the church would benefit, it
should be equally off limits when the church would suffer injury.


-- Michael McConnell (U of Utah)