Justice Ginsburg also cited Norwood v.Harrison 413 US 455 for the proposition that there is a distinction between allowing private discrimination and subsidizing it.Indeed,the Court so held in Norwood,but it did so in the context of racial discrimination.What she omits is that in Norwood the Court rejected the notion-at the heart of the State's argument in Norwood- that the ban on racial discrimination was to be equated with the ban on state subsidies for religious instruction,While the Constitution prohibited all government aid to racial discrimination,it said that the preferred place of religion in the Constitutional scheme allowed for some aid to religion-a holding in considerable tension with the CLS holding that religion is entitled to no special treatment.Of course,Norwood predates Smith-. Marc Stern
________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, June 29, 2010 4:03 PM To: 'Law & Religion issues for Law Academics' Subject: Is Bob Jones v. U.S. limited to government funding programs? I've often seen Bob Jones cited for the proposition that the government has a compelling government interest in banning discrimination (at least race discrimination, and at least in education). And the text does say that "the Government has a fundamental, overriding interest in eradicating racial discrimination in education." But the accompanying footnote suggests the holding may be limited to government benefits, such as tax exemptions: "[H]ere, the governmental interest is in denying public support to racial discrimination in education." The Christian Legal Society v. Martinez majority seems to have characterized Bob Jones as limited to benefits: In explaining why strict scrutiny doesn't apply to the Christian Legal Society's challenge to a take-all-comers condition attached to a funding program, the majority says, "In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. See, e.g., Grove City College v. Bell, 465 U.S. 555, 575-576, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19 84110000&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2022394585&mt=LawSchool &db=708&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=ED9A2971> ; Bob Jones Univ. v. United States, 461 U.S. 574, 602-604, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19 83124276&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2022394585&mt=LawSchool &db=708&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=ED9A2971> . Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition." Given this, should Bob Jones now be seen as a precedent limited to conditions on government benefits, and as not binding precedent for the proposition that there is a compelling government interest in government-as-sovereign bans on discrimination? Eugene
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