Are churches "public venues" for NFL purposes?

[Volokh, Eugene]

	I would be inclined to analyze this somewhat differently:
Discrimination against nonprofits does not violate the Free Exercise
Clause (post-Smith, and assuming we don't have some hybrid rights claim)
because it's not discrimination against *religious institutions* as
such, just as discrimination in favor of nonprofits does not violate the
Establishment Clause.  On the other hand, discrimination against
religious institutions would generally be presumptively
unconstitutional, even when it doesn't significantly burden religious
exercise (subject of course to the ill-defined Locke v. Davey
exception):  Treating people or institutions worse because of their
religiosity discriminates against them because of their exercise of
their constitutional rights, much as treating people worse because
they've gotten abortions would be presumptively unconstitutional, or as
treating religious institutions better because they're religious would
be presumptively unconstitutional (subject of course to the ill-defined
Cutter v. Wilkinson exception).

	Eugene



Marty Lederman writes:
 
 "There are also free exercise problems, if churches are forbidden to do
things that are perfectly legal for bars, restaurants, and other
for-profit establishments."
	 
	Well, Doug, the problem here of course would be in showing that
prevention of Super-Bowl-fest would significantly burden religious
exercise.  I know that down in Texas, football is religion -- but you're
in Michigan now, where that's true only until the final week or so in
November!