I appreciate Mark's arguments, and I'd be glad to be persuaded
to his position. Yet they still make me uneasy given that analogs of
them could be used equally in lots of other "subsidize our exercise of
our constitutional rights" cases.
The Due Process Clause has been read, rightly or wrongly, to
protect women's rights to get abortions, and parents' rights to send
their children to private school. Nonetheless we do say that the state
may "bribe" people not to exercise these rights by refusing to subsidize
those rights, and yet subsidizing the nonexercise of those rights. The
First Amendment protects groups' -- including churches' -- rights to
express their views about which candidates should be elected and which
statutes should be enacted. Nonetheless the state may "bribe" groups
not to exercise these rights by offering 501(c)(3) status only to groups
that don't electioneer or lobby.
Moreover, bribing a church to stay out of public debates is also
a way of "control[ing] a church." Yet the government is entitled to do
that. It seems to me that the case for the government's power to insist
that taxpayer money not be spent in discriminatory ways (a power that I
would not myself urge the exercise of here, but that seems to me to be a
power that the government does have) is at least as strong as the case
for the government's power to insist that taxpayer money not be spent on
overtly political matters. Or am I mistaken?
Eugene
> -----Original Message-----
> From: Scarberry, Mark
> Sent: Tuesday, March 14, 2006 9:44 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Entanglement and conditions on tax exemptions
>
> In answer to Eugene's posts and to Bobby's question about
> whether an originalist with my views (or Judge McConnell's)
> should seek a constitutional amendment:
>
> I'm not sure what the right rule is in terms of when
> religious groups should be (or constitutionally must be)
> given access to government funds on an equal footing with
> nonreligious groups. What I am convinced of, however, is that
> the qualifications set up by a religious group for its its
> leaders, and how such leaders are chosen, are none of the
> state's business and cannot be considered in deciding what an
> "equal footing" means. The Religion Clauses were designed to
> prevent the state from controlling the church (and vice
> versa). The most effective way to control a church is to
> control who its leaders are (or how the leaders are chosen).
> Originalism then leads me to the conclusion that it is a part
> of Free Exercise and an aspect of non-Establishment that the
> state not use its police powers, or taxing and spending
> powers, to influence the choice of religious groups' leaders.
> It is the effect that matters here, not the intent of the
> state. Thus even neutral, generally applicable laws (e.g., a
> law requiring all charitable organizations to choose their
> leaders democratically) are subject to this prohibition as
> applied to religious groups.
>
> This is the analogue to the "no religious Test" clause of
> Article VI. The church cannot set up a religious requirement
> for secular office; similarly, the state cannot set up a
> secular requirement for religious office. And it is not
> enough to say that the state may not directly compel
> religious groups in their choice of leaders. We must also say
> that the state cannot bribe religious groups with respect to
> those choices. Thus a religious group must be eligible for
> state funds, or not, without regard to the qualifications it
> sets up for its leaders or the manner in which they are chosen.
>
> I'm working through a hypo that creates some difficulties
> with this approach. Suppose the state says it will fund
> social services through religious and nonreligious groups,
> but that no one may handle the funds who has been convicted
> of embezzlement. A church chooses a pastor who was convicted
> of embezzlement several years ago but who has, in the
> church's view, changed his ways. I'm hoping that there is a
> distinction that will handle this case; common sense suggests
> that the state may require a degree of proven honesty in
> those to whom it entrusts funds. Perhaps someone else has
> already addressed this issue or can suggest an appropriate
> distinction.
>
> Now back to my business reorganization in bankruptcy
> casebook, with a March 29 deadline that will prevent me from
> participating actively on this list for a couple of weeks.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> _______________________________________________
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