Alan's argument is a powerful one -- but note that it's one which is
quite different from the standard argument given by the Court's "no-aid"
opinions. Wide Awake, for instance, didn't discriminate in its readership
and didn't require audience members to engage in prayer, and there's no
evidence that it discriminated based on religion in selecting its staff;
nonetheless, the four dissenters would have held that it had to be excluded
from funding. Likewise, O'Connor's opinion in Mitchell suggests that she
would have prohibited government benefits from flowing to a private school,
other than in a private-choice framework, if those benefits could be used
for religious purposes, *even if* the school was open without regard to
faith, didn't require prayer, and didn't discriminate based on religion in
hiring. Alan's argument is *not* a standard "no-aid-flowing-to-religion"
argument; rather, it's a
"no-aid-flowing-to-religiously-discriminatory-programs" argument, a
conceptually and often practically different creature.
I tentatively am hesitant to accept this
"no-aid-flowing-to-religiously-discriminatory-programs" argument. I agree
that the situation that Alan describes indeed presents an unappealing case
for NEA funding -- among other things, it's hard to see why NEA funds should
be disbursed for a program that can only be attended by certain groups, if
there are so many open-attendance programs that could be funded instead.
Still, I'm not sure that the NEA is constitutionally obligated to refuse to
fund this project.
This is even more so, I think, when one eliminates the attendance
restriction issue, and focuses solely on the hiring question. Let's say
that the NEA gets a request to fund a religiously themed work of art. Does
the NEA have a constitutional obligation to deny funding unless the artist
promises not to discriminate based on religion in his choice of helpers? It
seems to me the answer would be "no"; there's nothing unconstitutional about
the NEA saying "looks like it'll be good art, go and implement it using
whomever you please."
But let me also return to my original question, which is aimed at
probing the pure "no aid" theory rather than the "no aid to discriminatory
programs" theory. Let's say that the artist wants to paint a painting and
display it in a place where everyone can see it, without obligation any
religious affirmation from his viewers, and without discriminating based on
religion in his choice of helpers. Would O'Connor's opinion in Mitchell
require the NEA to refuse to fund this art, just because it's religious? It
seems to me pretty clear that the dissent in Rosenberger would so require --
is that right?
Eugene
> -----Original Message-----
> From: A.E. Brownstein [SMTP:aebrownstein at UCDAVIS.EDU]
> Sent: Monday, December 18, 2000 11:45 AM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: NEA and religion
>
> I'm not sure why Eugene thinks government funding in what seems to be pure
> speech cases is the best analogy for the funding of private schools. I
> think a better analogy would be the NEA granting funds to a symphony that
> only allows people of a particular faith or of a limited range of faiths
> to
> attend concerts, requires audience members to engage in prayer before the
> program begins, and only hires people of a particular faith to perform all
> of the job functions involved in the event from playing the violin to
> taking tickets to selling drinks at the concession stand.
>
> Does the NEA have a constitutional obligation to refuse to fund religious
> arts projects that fit this description? Is it constitutionally permitted
> to do
> so.?
>
> Alan
> Brownstein
>
> UC
> Davis
>
>
> At 05:21 PM 12/15/2000 -0800, you wrote:
>
> > Marty Lederman's points below lead me to ask the following
> > question: Does the NEA have a constitutional obligation to reject grant
> > requests for art projects that are religiously themed?
> >
> > We know, given NEA v. Finley, that the NEA is not a designated
> > public forum; and of course we also know that it hardly funds all
> > recipients. In fact, I'm pretty sure that the NEA funds a *far* fewer
> > fraction of applicants -- and thus exercises its discretion to reject
> > applicants far more often -- than do government programs that provide
> > benefits to K-12 schools, which I believe are generally available to the
> > great majority of K-12 schools. Moreover, to my knowledge the rules
> > about which schools are included in government benefit programs are
> > generally much less discretionary than the NEA rules. Even if the
> > government can set up rules that exclude Nazi schools, schools that
> teach
> > the flat Earth theory, or schools devoted to satirizing Christianity, my
> > sense is that there aren't many such rules, and in any event the rules
> > that do exist are usually much less subjective than the "artistic
> > excellence" criteria used by the NEA.
> >
> > Nonetheless, it seems to me that the NEA does *not* have a
> > constitutional duty to reject all grant requests for religiously themed
> > art projects, and I'm pretty certain that Justice O'Connor's
> > jurisprudence would suggest that she would vote this way. Am I mistaken
> > on either score?
> >
> > Incidentally, given their votes in Rosenberger, could Stevens,
> > Souter, Ginsburg, and Breyer consistently come to the conclusion that I
> > come to, or would they have to conclude that a latter-day Da Vinci would
> > have to be excluded if his painting would have a religious theme?
> >
> > Eugene
> >
> >Marty Lederman writes (and I think others have echoed this):
> >First, the Rosenberger program was, in effect, a private speech forum
> >in which (according to the Court) *all* student groups that engaged
> >in expression were funded, no matter what the nature of their
> >expression. As O'Connor stressed:
> >
> >"[T]he University has established a generally applicable program to
> >encourage the free exchange of ideas by its students, an expressive
> >marketplace that includes some 15 student publications with predictably
> >divergent viewpoints. . . . in a context that makes improbable any
> >perception of government endorsement of the religious message. Wide
> Awake
> >does not exist in a vacuum. It competes with 15 other magazines and
> >newspapers for advertising and readership. The widely divergent
> >viewpoints of these many purveyors of opinion, all supported on an equal
> >basis by the University, significantly diminishes the danger that the
> >message of any one publication is perceived as endorsed by the
> >University. Besides the general news publications, for example, the
> >University has provided support to The Yellow Journal, a humor magazine
> >that has targeted Christianity as a subject of satire, and Al-Salam, a
> >publication to 'promote a better understanding of Islam to the
> >University Community.' App. 92. Given this wide array of non-religious,
> >anti-religious and competing religious viewpoints in the forum supported
> >by the University, any perception that the University endorses one
> >particular viewpoint would be illogical."
> >
> >In other words, the University funded speech (e.g., the Yellow Journal)
> >that everyone would understand it abhors and disfavors.
> >
> >By contrast, Louisiana presumably would not loan computers to all
> >schools, regardless of what they teach. A school devoted to
> "target[ing]
> >Christianity as a subject of satire," for instance, or a school that
> >teaches that the Earth is flat, or a school that espouses Nazi ideology,
> >presumably would not receive computers. I think most laypersons assume
> >that the state *approves* of the basic curriculum and objectives of all
> >the schools that it aids, even if no one would assume that the state
> >endorses every single thing that occurs in those schools.
> >
> >Second, the Louisiana program involved secondary schools, not a large
> >state university. The distinction between primary and secondary schools
> >on the one hand, and higher ed, on the other, has of course been a
> >principal (albeit not dispositive) line of demarcation in EC law for
> >years (compare, e.g., Lemon, Levitt, Nyquist, etc. with, e.g., Tilton,
> >Roemer, Hunt). This is largely because younger students are more
> >impressionable and quicker to perceive state endorsement (but see
> >O'Connor's opinion in Mergens); and also because in general the school
> >presumably has (and exercises) more control over student speech in high
> >school than in college (see, e.g., Hazelwood, Bethel).
> >
> >Marty Lederman (in my personal capacity)
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