Just a quick follow-up to Marty and Mark's very thoughtful posts. Under current doctrine, the state does violate the Establishment Clause when it provides funds to religious organizations and allows them to use those funds for religious worship, religious instruction, or religious prosyletizing. This, itself, is a departure from conventional "state action" doctrine in some areas (for procedural due process cases, for example)which do not find a constitutional violation when the state permits (but does not encourage or command) private organizations receiving state funds to act in ways that are inconsistent with constitutional norms. So, at least for present purposes, following Mark and Marty's posts, constitutional restrictions prohibiting states from allowing publicly funded organizations to act in ways that are inconsistent with constitutional norms are recognized under the Establishment Clause -- even though similar restrictions are not recognized for some other constitutional rights and claims. Why such restrictions should apply to using public funds for worship and proselytizing, but not to religiously based hiring, is an open question?
Although no case to my knowledge exists that tests this proposition, I think these is a powerful argument that the state would violate the equal protection clause if it privatized social welfare programs and knowingly contracted with private organizations that refused to hire African- Americans to perform what had historically been public functions -- and which continued to be so in the sense that government continued to pay for the continuation of the programs, asserted the authority to regulate their operation, and demanded open access to the benefits provided to eligible beneficiaries. There has always been a substantive dimension to state action doctrine that draws different lines depending on the nature of the right and claim that is being adjudicated. By that, I mean the rules governing whether the constitution prohibits the state from allowing private parties to do things that violate constitutional rights or norms are not uniform. Alan Brownstein UC Davis > > I think (but am not certain) that Mark is suggesting here that the = > important question is not whether the recipient of government aid is a = > state actor, but instead whether the state itself violates the = > Constitution by not imposing nondiscrimination requirements when it = > funnels aid to private entities to perform what had once been considered = > "public" functions. I agree completely that this is the more fruitful = > way to think about the question (especially because Jackson, = > Rendell-Baker et al., as a practical matter preclude state-action = > analysis). The proper defendant, in other words, is the funding agency, = > rather than the funding recipient. Indeed, when we in the Clinton OLC = > addressed this question in the context of charitable choice, we = > dismissed the state action argument quite quickly, and concluded that = > the difficult and interesting questions were (i) whether the federal = > government itself violates the Establishment Clause by providing direct = > aid to organizations, knowing that such aid will be used to discriminate = > on the basis of religion; and (ii) whether the federal title VII = > exemption for coreligionsist discrimination by "religious = > organizations," generally upheld in Amos, is constitutional as applied = > to employment positions funded with federal dollars (a question that the = > majority opinion in Amos does not begin to answer). > > In this regard, it's interesting that Mark raises the hypothetical of a = > state providing aid to a private entity that it knows will discriminate = > on the basis of race. Presumably, under Jackson, et al., the private = > recipient is not itself a state actor. But what about the state? Does = > the government violate the Constitution by providing aid to the = > discriminating private entity? In Norwood v. Harrison, the Court = > answered this question "yes," and, quite surprisingly, neither the = > SCOTUS nor any lower court has ever seriously questioned that holding. = > (The issue was raised, but avoided, in Bob Jones.) Assuming for the = > sake of argument that the Court would continue to view Norwood as = > correctly decided -- a big assumption, no doubt, with this Court -- the = > question would then become whether the logic of Norwood (i.e., the state = > may not fund entities that engage in racial discrimination that would be = > unconstitutional if done by the state) applies when the state "contracts = > out" its functions to private entities, knowing that they discriminate = > on the basis of religion in a manner that would be unconstitutional if = > the program were still being operated by the state. There's almost no = > precedent speaking to this question, other than the passage in Justice = > White's dissent in Lemon, where he indicated that an aid program (e.g., = > for teacher salaries) would be unconstitutional to the extent 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. =20 > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
