----- Original Message -----
Sent: Sunday, December 26, 2004 8:54
AM
Subject: Re: charitable choice
hypothetical
I think I now see what Alan's getting at --
namely, that he's testing the legitimacy (or adequacy) of
the current state-action doctrine. This is something that Martha
Minow, and very few others, have been examining lately. The puzzle
is something like this:
1. At time A, the state performs various
social service functions -- whether it be drug counseling, welfare
administration, operating a prison, or providing bus service to public and
private schools. Those functions are indisputably and
uncontroversially subject to constitutional norms -- e.g., the First
Amendment, due process, equal protection, etc. -- and therefore (among
other things) hiring cannot be done on a racial or religious
basis.
2. At time B -- in the age
of privatization -- it becomes too expensive for the state itself to
perform those functions (or to monopolize the field, in any event), or
legislatures decide that state-run systems are less efficient than private
systems. Therefore, such services and functions "devolve" to the private
sector, with the state deciding to substantially subsidize the
private actors. The functions are more or less the same. And the
objectives -- incarcerating felons; rehabilitating drug users; taking kids to
school -- are exactly the same. That is to say, they are what have long
been viewed as public functions. But the state has "contracted
out" the services.
3. Under standard Rehnquist Court
state-action doctrine, the funded private actors at time B are not
state actors, and therefore all of the constitutional norms that
governed the state when it was performing the services at time A
suddenly fall away, even though the services -- and the objectives --
are precisely the same.
Alan might well be trying to get us to ponder --
why should that be? I think it's
a very good question. Indeed, I think that it's a very helpful way to
think about why some of us are so troubled by discrimination on the part of
those who receive state funds in order to perform valauble social
services. But if I'm right about this, then the object of Alan's
"critique" is not so much the charitable-choice proponents, as it is the
Burger/Rehnquist Court decisions on state action (e.g., Jackson,
Blum, Rendell-Kohn).
Indeed, as many begin assessing Rehnquist's
legacy on the Court, we should not forget that one of his earliest and most
complete, most startling "victories" was the thorough and decisive rejection
of the post-Brown challenge to the state-action doctrine. In
the 1960's, recall, the question of state action was the most
important, and most seriously analyzed, question in constitutional law.
See, for example, Charles Black's magisterial Harvard Foreword on state
action, still one of the single greatest law-review articles ever written, but
now laregly ignored because it seems so anachronistic. It only took
Rehnquist a couple of landmark decisions to end that debate completely, to the
point where, even in an age of massive "privitization," (i) almost no
one's writing about it anymore; (ii) modern law students (and courts, of
course) simply take for granted that the state action distinction is
meaningful, valid and inevitable; and (iii) Burton and
Reitman are but a distant and faint memory, recalled, if at all, only
as an inexplicable skirmish of no real moment.
Perhaps -- although I'm not holding my breadth --
these antidiscrimination questions relating to charitable choice will get
people to wondering once again about the state action question.
----- Original Message -----
Sent: Thursday, December 23, 2004 5:46
PM
Subject: Re: charitable choice
hypothetical
> I'm certainly not arguing that this is constitutional. But I
also don't
> think that "I can't imagine anyone thinking this is
constitutional" answers
> why it is unconstitutional.
>
> I suppose part of the problem here is that we apparently disagree
as to the
> rationales for allowing discrimination in hiring by
religious
> organizations. I think one of the rationales is that some
religious
> organizations believe that the people performing the
service at, with, or
> for a religious organization should be of like
minded creed. Particularly,
> in a school context it is not difficult
for me to understand why a
> religious school would prefer that
everyone working with children to be of
> the same faith -- even if
they were on the government's payroll.
>
> Thus, under
charitable choice a religious non governmental provider could
> not
be required to participate in an ecumenical program where members of
> diverse faiths would work together, for example, in staffing a soup
> kitchen. Having non-believers working in the program would be
unacceptable
> whether they were on the government payroll, on a
different religious
> organization's payroll or the religious
institution's payroll. I take it
> your position is that having
co-workers with shared beliefs is not part of
> the rationale for
charitable choice -- and that the key concerns involve
>
non-believing employees having an employment or other financial
>
relationship with the religious provider.
>
> I don't discount
these latter rationales, but I have certainly heard the
> former ones
expressed as well.
>
> Alan Brownstein
> UC Davis
>
>
>
>
> At 04:31 PM 12/23/2004 -0500, you
wrote:
>>Well, I suppose the reasons that there is "no conventional
Establishment
>>Clause basis for objecting to my hypotheticals"
are that (i) I can't
>>imagine anyone actually suggesting that
state staffing decisions be made
>>on the basis of religion and
(ii) that it seems clear that it would be
>>unconstitutional. States simply cannot make staffing
decisions on the
>>basis of employees' religion. Indeed,
that would even be the case where
>>there is a religious
"accommodation," such as provision of chaplains in
>>the military
or in prison -- assignments can't be made on the basis of the
>>chaplains' religion.
>>
>>But even if one
could imagine a situation in those contexts where
>>religious
selectivity might be acceptable (e.g., a Catholic soldier asking
>>for a priest rather than a rabbi to administer last rites, where
the
>>choice does not affect the employment oppotunities of either
chaplain),
>>what would be the theory here? If the bus
driver is a state employee
>>(i.e., a state actor), what possible
reason would the school have for
>>insisting that she be of a
particular religion? As far as I can tell --
>>having given
the question about two seconds of thought -- none of the
>>usual
rationales for coreligionist hiring in the charitable-choice context
>>would be apposite where, as here, the driver is an employee of
the state
>>and is not acting as part of a church or as a
surrogate of the
school.
>>
>>
>>
>>----- Original
Message -----
>>From: "A.E. Brownstein"
>><<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]>
>>To: "Law & Religion issues for Law
Academics"
>><<mailto:religionlaw@lists.ucla.edu>religionlaw@lists.ucla.edu>
>>Sent: Thursday, December 23, 2004 4:19
PM
>>Subject: Re: charitable choice
hypothetical
>>
>> > Thanks for a thoughtful response,
Marty. But in fact I am asking a version
>> > of the more
extreme question that you presume is answered by the case law.
>>
> In my hypo, the state is providing the bus service. There are two
subsets
>> > of the question. One involves the religious
institution being given a
>> > choice among existing state
employees of who is assigned to the job of bus
>> > driver (if
no one of the appropriate faith is currently employed by the
>>
> state, the accommodation can not be provided.) The other involves
the
>> > state taking the religious institution's accommodation
needs into account
>> > in making hiring decisions. I don't
think either Torcaso or Larkin control
>> > the first question.
Indeed, it is not entirely clear to me that either
>> > Article
VI or Larkin control the second situation. The accommodation
here
>> > is available to all religious schools so the state is
not denying all
>> > employment to persons of a particular
religion. Obviously, there will be
>> > more job opportunities
for members of larger faiths than smaller faiths.
>> > But is
that really a prohibited religious test for office. I assume
that
>> > there are more Protestant Ministers hired as Army
Chaplains than Rabbis
>> > (because there are more Protestant
than Jewish soldiers) but I don't think
>> > that violates
Article VI.
>> >
>> > The Larkin analogy is
stronger. But it turns on what constitutes a
>> > delegation of
power. It might not be hard to structure the
>> accommodation
to
>> > avoid that constraint. There is also the question of why
giving a
>> religious
>> > institution capital, real
property, or materials that may be used in a
>> > religiously
discriminatory way is substantively different than giving them
>>
> a state paid employment position for delegation purposes. I do not
suggest
>> > that there may not be persuasive answers to these
questions, but they may
>> > not be as self evident as you
suggest.
>> >
>> > Marty, may I assume from your
answer that you agree that Article VI and
>> > Larkin aside,
there is no conventional Establishment Clause basis for
>> >
objecting to my
hypotheticals.
