RFRA and welfare

[Michael McConnell]

Sandy Levinson poses the following:

> Recall Dandridge v. Williams and the constitutionality of the cap under
> AFDC.  Assume that a Catholic woman is raped and, for religious reasons,
> refuses to have an abortion (or to put the child up for adoption).  The
> pre-newcomer family is already receiving the maximum, so that everyone's
> allotment is reduced, per capita, with the arrival of the child.  Is RFRA of
> any relevance, given that the family certainly seems to be burdened because
> of the interplay between the mother's following her religious duty (not to
> have an abortion) and the state's policy of placing a cap on the amount of
> aid it will give a given family?

I think the ambiguity here is in Sandy's observation that "everyone's
allotment is reduced, per capita." But the law does not provide a
"per capita" allotment. It provides a per family allotment,
with a cap. In the example given, that allotment is not reduced. The
state should treat families "equally," but there are many
different, mutually inconsistent, metrics for "equality." If the
state satisfies one, it will violate another.  So long as
the state has adopted a defensible form of equality, and applied it
reasonably consistently, that is all we can expect. Otherwise,
virtually every provision of our tax and welfare laws could be
attacked on the ground that, as applied, it burdens one
constitutionally protected right or another.



-- Michael McConnell (U of Utah)