Excellent, concise summary provided by Chip Lupu
and Bob Tuttle at
I would add to it only a minor elaboration.
Chip and Bob conclude -- correctly, in my view -- that after Davey the
only state exclusions of religion that are open to serious constitutional
question are indirect aid (i.e., "voucherized") programs that exclude "all
entities with a religious character," even where such entities agree to use the
funds in an exclusively secular program. I think that it might help to
distinguish among three types of statutory exclusions of "entities with
a religious character": (i) exclusions of entities (or persons) by virtue
of their affiliation with religious entities (e.g., affiliation with
churches); (ii) exclusions of entities (or persons) because of their religious
beliefs or tenets; and (iii) exclusions of entities or persons because
they engage in religious activities outside the funded
program.
The lines between such exclusions might, of course,
be fluid: a particular state constitution might impose any two, or all
three, of these sorts of exclusions. All three, I think, would raise
serious unconstitutional conditions questions. Denying funds because of an
entity's (or person's) beliefs or affiliations would appear to penalize the
putative recipient on account of such protected activity -- in such cases, the
state will not have available the argument that it wishes to ensure that state
funds are not used for religious activities. In terms of SCOTUS precedent,
I think McDaniel v. Paty remains the best analogy, although the
Davey Court unfortunately hinted that McDaniel might be
limited to the denial, on religious grounds, of "the right to participate in the
political affairs of the community." The best citation for a
"belief"-based exclusion might be Davey itself, in which the Court
indicates that there would be a constitutional problem if Washington required
students to "choose between their religious beliefs and receiving a
government benefit." As for the exclusion of persons or entities
that engage in religious activities outside the funded program, the
standard citations are League of Women Voters and Rust, both
of which hold that the state must permit the funding recipient
some outlet, however onerous it might be to establish, in which it may
engage in the constitutionally protected activities. However, the
ridiculously costly and unrealistic "separate affiliate" requirement
in Rust itself, and the "student can attend two schools"
footnote of Davey, give the states extremely broad discretion in
this respect. For example, in the school voucher context,
presumably states will be able to require that recipients provide religious
classes or instruction in separate facilities, with separate faculty and
administration, at the conclusion of the "secular" school day -- all in order to
ensure that the state's fungible funds do not subsidize the religious
activities. Of course, states are not required to impose so
onerous a segregation requirement in a voucher program. There are many
other, less "segregated" options that a state might decide to impose if it
wishes to ensure that funds do not flow to religious
instruction.
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