Wednesday, December 3, 2008
Thomas Berg has posted Religious Organizational Freedom and Conditions on Government Benefits. Here is the interesting abstract:
More and more legal disputes about church and state in the coming years will involve conditions on government benefits - social services grants, educational vouchers, tax exemptions - that conflict with the tenets or practices of religious organizations that would otherwise be eligible for the benefits. The prospects for constitutional challenges to such conditions are uncertain: the Supreme Court has recognized that conditions on benefits can intrude on constitutionally protected decisions, but recently it has more and more upheld conditions on the ground that government is not penalizing an activity but is simply refusing to subsidize it. This Article makes the case that religious organizations ought to be able to challenge, in a number of important situations, conditions that exclude them from generally available benefits because of their religious character or practices important to their religious identity. Such exclusions implicate two important Religion Clause values: they pressure the organization to forego its choices in religious matters, and they undercut the ideal, based in church-state separation, of a religious sector operating without government interference or favoritism. The best understanding of church-state separation, I argue, calls not for excluding religious schools or social services from generally available aid, but for allowing them to receive aid for the services they provide without pressuring them to change their religious character. Conditions on benefits can place presumptively impermissible burdens on organizations' religious choices, and they can intrude on core organizational decisions protected by a proper understanding of church-state separation. I apply these arguments to challenge three actual or proposed conditions on benefits: (1) rules that bar government-funded education or social-service programs from considering religion in hiring staff; (2) restrictions on a tax-exempt organization's intervention in political campaigns to the extent they bar a clergy member from expressing moral-political views in her capacity as religious leaders; and (3) proposals, advanced by some commentators, to deny tax exemptions or funding to organizations that restrict clergy positions based on sex or other disapproved grounds.