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Well, Eugene is, for the most part, fighting the
premise of my answer and (I think) of Alan's question -- namely, that for
the time being, as for the past 33+ years, it would be impermissible to
provide direct aid financial to religious institutions that could be diverted to
religious activities. I was trying to answer Alan's question within that
framework, which has governed the law since well before Eugene and I were in law
school. As my answer suggested, if there is a sea-change on this
issue, i.e., if the unanimous decisons in Tilton and Bowen v.
Kendrick are overturned and if the
implications of the plurality opinion in Mitchell become the
law, then Eugene's formal neutrality result in his final paragraph will surely
follow, it is true.
As Eugene's post suggests, the Court, rightly
or wrongly, has not treated tax exemptions and direct aid alike
for purposes of the Establishment Clause, economists be damned. Eugene
quite properly asks why the Court should continue to draw the distinction in
this area. O'Connor's answer -- that "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" -- is not terribly satisfying, or illuminating, I
agree.
What I'd like to suggest is that the ol'
tax-empetion/direct-aid dichotomy that has governed this area of law for
some time actually is -- or should be, anyway -- a
reflection of, or a proxy for, the discretionary/nondiscretionary distinction
that I was suggesting. And here we come to Justice Harlan's long-forgotten
and unjustly-ignored concurrence in Walz. Harlan agreed with you,
Eugene, and with Justice Douglas, that "exemptions do not differ from subsidies as an economic
matter." 397 U.S. at 698. Nevertheless, as a general
matter, tax exemptions are neutral, generally applicable, and not subject
to discretionary, subjective decisionmaking that could result in religious
favoritism -- whereas in general, subsidies are the opposite. As Harlan
put it, "Subsidies, unlike exemptions, must be passed on periodically and thus
invite more political controversy than exemptions. Moreover, subsidies or
direct aid, as a general rule, are granted on the basis of enumerated and
more complicated qualifications and frequently involve the state in
administration to a higher degree, though to be sure, this is not
necessarily the case." Id. at 699. Whether or not it makes sense for
the Court to erect a bright line separating subsidies and exemptions in order to
reflect this general distinction, I think that Harlan was onto
something very important -- and long-forgotten -- namely, that "the
more discriminating and complicated the basis of classification," and "the
greater the potential for state involvement in evaluating the character of the
organizations" [in Walz, for an exemption; in charitable choice,
for funding], the greater the risk of constitutional problems.
But again, I believe that Alan was assuming that
the law on direct funding as we've known it since at least 1971 will continue to
be the law -- at least as long as SOC is on the Court -- and was asking why
direct aid, if it cannot be diverted to religious
activity, can be used to discriminate on the basis of
religion in employment. And that is, I think, a very interesting and
difficult question.
----- Original Message -----
Sent: Thursday, December 23, 2004 3:21
PM
Subject: Tax subsidies vs. non-tax
subsidies
It seems to
me that this brings up the old question of the extent to which tax exemptions
are effectively subsidies. The Court has generally held that they are,
see, e.g., Texas Monthly v. Bullock (religion-preferential tax exemption
violates the Establishment Clause); Bob Jones Univ. v. U.S. (the government
has a compelling interest in not subsidizing discrimination, which justifies
denying tax exemption to a racially discriminatory schools); Taxation With
Representation v. Regan (special tax exemption for veteran's groups that lets
them, but not other tax-exempt groups, lobby is permissible under the Free
Speech Clause because it's just a subsidy to those groups). Economists
likewise tell us that they are.
If this is
so, then it seems to me that either (1) religious institutions *must* be
denied tax exemptions under the Establishment Clause, because they are legally
allowed to discriminate based on religion and because they often do so
discriminate, or (2) religious institutions *need not* be denied the ability
to participate in generally available aid programs (at least ones in which the
money is distributed based on objective criteria) even if they discriminate,
since those programs are just like tax exemptions. (This intentionally
doesn't speak to whether the First Amendment *requires* that religiously
discriminatory organizations be included in the programs, only to whether it
*forbids* such inclusion.)
Now
perhaps, as Marty suggests, the answer is indeed different when the aid
program (unlike exemption programs) is administered pursuant to subjective
criteria rather than objective ones. But if the government pays for the
cost of all school bus service, lets schools hire their own drivers, and
doesn't object when religious schools hire based on religion, then it strikes
me as quite similar to the government giving a tax exemption to all donors to
charitable causes, and doesn't object when religious recipients of the
donations hire based on religion.
Eugene
-----Original Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Marty Lederman
Sent: Thursday, December 23, 2004
12:03 PM
To: Law & Religion issues for Law
Academics
Subject: Re: charitable choice
hypothetical
A complicated question, I think, Alan. I
assume, in your hypo, that the state is simply paying for the cost
of bus service, right? -- not actually providing the
service through the auspices of a state-run transporation outfit.
Because if the bus driver were actually an employee of the state,
obviously the state could not limit its employment decisions to persons of a
particular religion. See Torcaso; McDaniel; article
VI, etc. Nor could the state cede the power to religious institutions
to cabin the state's own choices of whom to employ
(Larkin).
So let's assume a program of direct payment to
private schools for the costs of providing bus service. Under current
doctrine (which might not be for long for this world), the dollars could not
be expended on "specifically" religious activity, such as proselytizing,
bible studies or prayer. (Bowen v. Kendrick;
Tilton; SOC's opinion in Michell v.
Helms.) The question, then, would be why such dollars
could be used for discriminatory hiring practices -- i.e., why
coreligionist hiring is constitutionally distinct in this cotext from
prayer, bible studies, etc., even though the Religion Clause would prohibit
the state itself from engaging in both forms of activity
"directly." But in order to answer that question, one would need a
fuller, richer account of why direct aid provided to all schools
(e.g., on a per capita basis) cannot be used for certain
religious activity. Unfortunately, all we know, as of now, is that
according to Justice O'Connor, "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." Not much to go on in that cryptic statement.
I would note, however, that on the Burger
Court, even the anti-separationist Justices thought there was a serious
problem in providing funds to schools that discriminate on the basis of
religion. In his dissent in Lemon, for instance, Justice
White acknowledged that an aid program (e.g., for teacher salaries) would be
unconstitutional to the extent there were evidence that the recipient
schools restricted entry on racial or religious grounds, or
required all students to receive instruction in the tenets of a particular
faith. 403 U.S. at 671 n.2. The Court cited with apparent favor
to this footnote in Norwood, 413 U.S. at 464 n.7. I suppose
one could argue that discriminating against students is more
problematic than discriminating against employees, because students are the
"ultimate" beneficiaries of the aid program. But then again, it's the
employees, not the students, who actually receive the government
dollars.
The basic question, I suppose, is whether the
government violates the Constitution by giving money to an entity
knowing that the state moneys will be used to engage in a form of
discrimination that would be forbidden to the state itself. I don't
know that there is a single answer to that question. In my view,
however, the constitutional problem is most pronounced where the government
aid is discretionary and selective, and distributed on the basis of
highly subjective criteria, because in such a case, it's much more tenable
to conclude that the government's choice of a discriminating recipient over
a nondiscriminating recipient evidences at least a modicum of government
"endorsement" of the discrimination. That is to say, the government is
more (constitutionally) responsible for what happens with its funding when
in the first instance it must make discretionary choices of who should
receive that funding. By contrast, I think the constitutional concern
is less pronounced where the aid is awarded on the basis of objective
criteria, or on a per capita basis. But cf. O'Connor's opinion in
Mitchell.
Is that at all responsive?
----- Original Message -----
Sent: Thursday, December 23, 2004 2:24
PM
Subject: charitable choice
hypothetical
> In reading arguments defending charitable choice provisions that
permit
> religious non-governmental providers to discriminate on the
basis of
> religion in hiring employees to staff government funded
programs serving
> public purposes -- even if the program is entirely
supported by government
> funds and is subject to various government
regulations and conditions, I
> began to think about the reach of
these arguments.
>
> Proponents of discriminatory hiring
argue:
>
> 1. This is an accommodation of the religious liberty
interest of religious
> individuals to work together with
co-religionists.
>
> 2. The accommodation serves the legitimate
secular purpose of permitting
> co-religionists to work
together.
>
> 3. The accommodation does not impermissibly
advance religion. The reason
> religion is not impermissibly advanced
is, in part, because
>
> a. The discrimination is not invidious
and the persons denied job
> opportunities are not stigmatized by
their exclusion from these job
> opportunities.
>
> b.
The religious liberty of persons denied employment because of their
>
religious beliefs is not burdened by being denied tax payer funded, public
> purpose employment opportunities.
>
> Obviously, I
strongly disagree with most of these arguments. But my
> question is
this. Suppose a state provides free school bus service to
> students
attending both private and public schools. May the state allow
>
religious private schools to select the bus driver transporting their
> students to the school and insist that the driver must be of the
same faith
> as the school's teachers and administrators -- and may
the state grant such
> requests as an accommodation? (Or
alternatively, when public school
> teachers are assigned to provide
remedial services to students at a
> religious school, may religious
schools be granted the accommodation of
> choosing teachers of a
particular faith to be assigned to those duties.)
>
> Wouldn't
all of the above arguments apply to these situation? The religious
>
discrimination would be an accommodation of religious individuals desire to
> work with co-religionists. (And., of course, the state can take
religion
> into account in accommodating religion.) The accommodation
would serve a
> secular purpose and not impermissibly advance
religion for all of the
> reasons argued above.
>
> If
there is an Establishment Clause problem with these hypothetical
>
accommodations, what is it? It can't be that public resources (here labor
> instead of capital) are placed under the control of religious
institutions
> which practice religious discrimination in using those
resources -- because
> that is what charitable choice does.
>
> Alan Brownstein
> UC Davis
>
>
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