Georgia Lawsuit with Charitable Choice Implications

[Sanford Levinson]

Greg Baylor writes:

Moreover, I think it is important to understand that *the state* did *not*
ask the Home to refrain from discriminating on the basis of religion and
sexual orientation in employment as a condition of receiving payments to
offset the costs of caring for children.

**************

I have no doubt this is true.  But wouldn't a social choice theorist
predict precisely that a politically well-placed group would be successful
in seeking rents by demanding public funds on the recipients' own
terms?  It's not, after all, that "the state" is some neutral arbiter in
the sky that generates its conditions on the basis of a philosophy
seminar.  Rather, "the state" at any given time is the coalition of
special-interest  groups that have managed to gain control of the state
apparatus, which includes taxing and spending (and redistribution of funds
from taxpayers to favored groups of state legislators and
administrators).  As to the latter, it was Gary Bauer, for example, who
imposed the "abortion gag rule" as a "representative" of certain religious
groups in the Reagan Administration.  (Congress most certainly did not,
though the majority basically found this irrelevant, unlike, say, Justice
O'Connor.)  In any event, one way of envisioning the Establishment Clause
is as a limit on rent seeking by religious groups, though it is admittedly
difficult to figure out the boundaries of the Clause in the age of the
Welfare State.  That being said, I know that I am disturbed by the Georgia
example and would much prefer that my tax dollars not be indirectly
supporting what I believe to be discriminatory religious organizations.

Incidentally, if one *does* view the Establishment Clause as in effect a
"no-rent-seeking-by-religious-groups" mandate, is it the view of
"egalitatarians like Michael McConnell, Doug Laycock, and (sometimes)
myself)  that it was in effect repealed or at least significantly modified
by the Fourteenth Amendment?  (One might, of course, view the Establishment
Clause as stupid and detrimental to achieving a good society, but a legal
positivist can't let that be dispositive.  There's a lot that's stupid in
the Constitution that must, nonetheless, presumably be respected.)

  sandy