Georgia Lawsuit with Charitable Choice Implications

[LoAndEd at AOL.COM]

I don't intend here to get into (or even express any view) on the EC question at issue in the Georgia case.  I would note three doctrinal points, however, in response to Eugene's tax-deduction hypo.  First, for better or worse, rightly or wrongly, the Court has treated tax deductions and direct funding *very* differently for EC purposes.  Second, Norwood held that the state *did* violate the EPC by providing books to a segregated school pursuant to a neutral program.  (Similarly, dissenting in  VMI, Justice Scalia suggested that if VMI violated the Equal Protection Clause, then, per Norwood, the United States violates the E.P. Clause when it funds private single-sex schools.  Please note here that I am not endorsing Norwood or the Scalia VMI dissent -- merely reporting the facts.)  Third, in Bob Jones itself the argument was made, based on Norwood, that the IRS *was* constitutionally required to deny BJU the tax exemption.  The Court did not reach this question.

Marty


Eugene writes:

          But as to the question whether "the state may permit its money to be used in such a discriminatory manner," let me ask
  this:  Texas Monthly v. Bullock held that tax exemptions are a form of subsidy.  So did Bob Jones, and Taxation With
  Representation v. Regan.  If that's so, and if "the state may [not] permit its money to be used in such a discriminatory manner,"
  then it seems to follow that the Constitution per se prohibits any discrimination by any group that gets a tax exemption (from
  property tax, income tax on its own income, income tax on contributions to it by contributors, or what have you).  Can that be
  right?

          Eugene