Sixth Circuit Upholds Participation of Churches in an Evenhanded Urban Beautification/Refurbishment Program:

American Atheists v. City of Detroit involves a program that "reimburse[d] up to 50% of the costs of refurbishing the exteriors of downtown buildings and parking lots" "in a discrete section of downtown Detroit," and "covered all property in that area, including property owned by religious organizations." The program was apparently prompted by the city's desire to put on a good face for the then-upcoming 2006 Super Bowl, which was to be held in a city-built stadium.

"Of the $11.5 million allocated for completed and authorized projects, 6.4% ... went to [three] churches" in the area, but the court found that this was not a problem, chiefly because of the evenhanded nature of the funding program. Seems exactly right to me, as a matter of basic principles, namely that equal treatment is not establishment. Given the messy state of current Establishment Clause law (compare Mitchell v. Helms with Rosenberger v. Rector and Zelman v. Simmons-Harris), the result is not doctrinally obvious, but I think the panel makes a very good argument that it is correct even under the splintered Mitchell decision.

And as the court put it,

Excluding the churches from taking part in the program, by contrast, would send a far stronger message [than the alleged message of endorsement of religion sent by the inclusion of the churches -EV] — a message not of endorsement but of disapproval. It may be that the First Amendment did not compel Detroit to include religious groups in this downtown revitalization project, cf. Locke v. Davey, 540 U.S. 712, 719--21 (2004), but neither did it prohibit Detroit from including these groups in the project — either to enhance the success of the program (by revitalizing all of downtown) or to avoid sending a message of hostility to people of faith.

I agree with the dissent in Locke v. Davey, and think that discriminatory exclusion of religious people or institutions from generally available funding programs should be seen as unconstitutional. But even given the Court's contrary ruling in Locke, the Sixth Circuit's logic in the paragraph I quoted (and in the rest of the opinion) strikes me as quite right.

I should note, of course, that there are lots of good libertarian reasons for opposing government construction of stadiums, or government funding for refurbishing private buildings and parking lots. But if such funding is to take place, it's not necessary (and in my view, not proper) to discriminatorily exclude religious institutions from such evenhanded funding programs. Thanks to How Appealing for the pointer.


I agree with the dissent in Locke v. Davey...

I still can't get over that ruling. The guy was denied a scholarship because, in addition to meeting the requirements for the scholarship on non-religious grounds, he was also studing theology. Unbelievable.
5.28.2009 2:07pm
J. Aldridge:
I wonder why the federal judiciary does not find significant that between 1871 and 1890 there were some Seven attempts to amend the Constitution to prohibit the States from respecting religion in one form or another?
5.28.2009 2:20pm
Repeal 16-17 (mail):
We know you disagree with Incorporation; no need to remind us.
5.28.2009 2:57pm
In the case of St. John's Episcopal church, its inclusion in the program is also justified by the fact that part of its land was taken for stadium parking and some of its remaining land is a parking lot integrated into the rest of the parking. See here. They get revenue from the slots on their land. It's really part of the complex.

I went to mass there on a game Sunday and got into the parking lot free just by saying I was going to church. [I left before the game].
5.28.2009 3:44pm
rte (mail):
Is the distinction between an "established" church and a "gathered" church of any use?

It seems likely that every church in the U.S. is a "gathered" church as the term was used in England.
5.29.2009 12:09pm

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