Georgia Lawsuit with Charitable Choice Implications

[LoAndEd at AOL.COM]

I think this discussion might have gotten off on the wrong foot.  As I understand it, the hiring-related issue in the Georgia case is *not* (as Eugene's post suggests) whether it would be unconstitutional for Georgia to prohibit recipients of funds from discriminating against employees on the basis of religion in the funded program, but instead the "flip side," i.e., whether Georgia violates the Establishment Clause by *funding* a private organization that does, in fact, discriminate on the basis of employees' religion.  That is to say, there is no statutory prohibition on the organization's religious discrimination (it presumably is entitled to the section 702 religious exemption to title VII, for instance), and the question is whether the state *may permit* its $$ to be used in such a discriminatory manner, or instead *must* impose an antidiscrimination requirement as a condition of funding.

In response to Eugene's implicit hypo, if Georgia *did* require funding recipients not to discriminate in hiring in the funded program as a condition of receipt of funds, I think it's fairly clear that such antidiscrimination conditions -- which are unremarkably imposed day in and day out pursuant to statutes such as title VI and title IX -- would be constitutional, particularly because the positions in question presumably would not be "ministerial" in nature.  There's no free speech issue here, and thus League of Women Voters/Rust/Regan/Rosenberger do not even come into play.

But as I said -- that's *not* what this case is about, if I understand it correctly.  Instead, the question is whether and under what circumstances the state may permit its $$ to be used by funding recipients to discriminate on the basis of religion in employment.

Marty Lederman (in my personal capacity)


Eugene writes:

 The trouble is that all of us TAKE GOVERNMENT MONEY.  I do, because I'm on the California payroll; does it follow that
  I may not spend it for religious purposes?  Or that the government may impose such a condition if it wants to?  Likewise, if tax
  exemptions are treated as subsidies, most people and organizations take government money.  May the government say that
  accepting the home mortgage tax deduction makes us "assume the risk" of warrantless, probable-cause-less searches?  When
  the postal service subsidized second-class mail, all organizations who used that option were taking a valuable government
  service.  People who drive on publicly funded roads are taking a government benefit.  People who get social security or welfare
  take government money.  Does it follow that the government has unlimited power to attach strings to all these benefits?

          The government takes, on average, 35% of all our paychecks, and then gives us -- individuals and organizations -- various
  things in return.  If we "assume the risk of intrusion when [we] take the money," and thus forfeit our constitutional rights as part
  of the deal, then all of our rights are lost.

          Now I agree that in some situations, government funds may indeed come with some conditions; I think that Rust is right,
  though I also think that Rosenberger and League of Women Voters are right, too.  When this should be allowed is an interesting
  and important question.  But it can't be answered just with "they assume the risk of intrusion when they take the money."

          Eugene