Conditions on Money

[Douglas Laycock]

        Michael looks for an example of a condition that is constitutional
if attached to money but unconstitutional if imposed as a general regulation.

        There may not be a clear example, and current doctrine converges to
make such examples unlikely.   Smith contracts the scope of free exercise
claims, making it harder to find regulations that are unconstitutional --
impossible if Eugene's interpretation prevails.  The Court's rule against
direct grants to pervasively religious organizations has precluded giving
money to the institutions with the strongest claim to free exercise
protection.  And as someone said, these issues are more likely to be
negotiated than litigated.

        A possible example is Wilder v. Bernstein, 645 F. Supp. 1292
(S.D.N.Y. 1986), in which the ACLU argued that Catholic and Jewish charities
providing foster care could not give priority to Catholic and Jewish
children, and could not refuse to provide birth control to foster children,
if they contracted with the City of New York to provide foster care.  The
ACLU and the City eventually settled;  the objections of the charities were
rejected without full adjudication at a "fairness hearing."  Several of us
discussed the case in a symposium on consent decrees in 1987 U. Chi. Legal
Forum.

        The separationist organizations make a similar argument about the
Ashcroft charitable choice proposals -- that if a religious charity accepts
federal money, it gives up its right to hire believers or mingle religious
and secular services.

        Michael may be thinking about precisely these cases, and looking for
analogies.   But I don't have any analogies in real cases.



Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu