American Atheists, Inc.

[Marty Lederman]

Agreed that it's important -- indeed, if it reached the Supreme Court, it would likely be the vehicle for a wholesale 5-4 overturning of almost 40 years of EC doctrine.  A few quick reactions:

1.  The court's insistence that this is a case of "first impression" is ridiculous.  It might be the first reported case of bricks and mortar funding to churches as such (does anyone know if that's true?); but of course there's very well-established doctrine on bricks-and-mortar funding to other religious institutions, where such aid was invalidated because there was a slim, outside chance that the building would be used for religious services and/or education decades in the future.  Bricks-and-mortar for an active church is a case "of first impression" only because it's an obvious a fortiorari case after Tilton.  Until recently, no one even imagined that such a program could be sustained as long as Tilton and like cases remained good law.

2.  The court basically concedes as much, but ignores the Tilton doctrine because it has allegedly been "undermined" by Mitchell, which represents a "jurisprudential shift."  This is dubious on the merits -- see below -- but even if it were correct, it's not supposed to be the job of district courts to ignore the governing SCOTUS precedents (or so the Court said in Agostini -- but see, of course, Judge Parker's decision in Barnette, ignoring Gobitis). 

3.  The Court ignores the fact that, even under the governing SOC concurrence in Mitchell, direct money aid to churches would almost certainly be invalid.  See 530 U.S. at 855-856:  "Justice SOUTER is correct to note our continued recognition of the special dangers associated with direct money grants to religious institutions. As the cases Justice SOUTER cites [including the Tilton line] demonstrate, our concern with direct monetary aid is based on more than just diversion. In fact, the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause's prohibition."  Even the Mitchell plurality conceded that under governing doctrine, direct money grants are presumptively unconstitutional:  "We have seen 'special Establishment Clause dangers,' when money is given to religious schools or entities directly. . . . The reason for such concern is not that the form per se is bad, but that such a form creates special risks that governmental aid will have the effect of advancing religion (or, even more, a purpose of doing so)."  Id. at 818-819 & n.8.

4.  What's more, this is not a purely neutral program, as in Mitchell and Tilton.  It is not the case that all eligible entities receive the aid based on neutral critieria.  The court emphasizes that the criteria for eligibility are neutral.  But it ignores the fact that the decisions about which eligible buildings should be funded are very selective, and presumably highly discretionary and subjective.  Only 123 of the 189 eligible projects were reimbursed, of which nine were church projects (in three churches).  We don't know how the DDA made these choices; whether churches were preferred to nonreligious buildings; and/or whether any denominational discrimination was involved (or possible).  There's no indication of any structural or procedural guarantees of neutrality, or use of only objective criteria, in the funding decisions.

5.  What does strike me as potentially important here is that the reimbursement was solely for exterior upkeep and maintenance, not for original building costs or upkeep of the interior areas in which religious services take place.  And even as to the exterior maintenance, the court does not allow reimbursement for specifically religious iconography, e.g., stained-glass windows.  In this respect, the court obviously owes a large debt (which it acknowledges) to Chip Lupu's and Bob Tuttle's proposed resolution of this puzzle.  If the case ever gets to the Court, it is likely the Court will distinguish Tilton and other cases on this exterior/interior ground, and affirm this decision, even though I think it's fairly clear that this aid would be unconstitutional under either Tilton or Mitchell.  


----- Original Message ----- 
  From: Friedman, Howard M. 
  To: religionlaw at lists.ucla.edu 
  Sent: Thursday, August 09, 2007 5:36 AM
  Subject: Important Establishment Clause Decision


  In what is apparently a case of first impression, a Michigan federal district court yesterday approved inclusion of churches in a government brick-and-mortar direct grant program for downtown beautification-- with some exceptions (signs and stained glass windows with religious images). More at Religion Clause blog.
  http://religionclause.blogspot.com/2007/08/court-upholds-neutral-brick-and-mortar.html

  Howard Friedman


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