Georgia Lawsuit with Charitable Choice Implications

[Lupu, Ira (Chip)]

If the government may prohibit Planned Parenthood from using
government family-planning money to express PP's views about
abortion (Rust v. Sullivan), it's hard to see why the government
can't take the less intrusive step of prohibiting PP from using the
same money to engage in employment discrimination against pro-
lifers.  PP can hire pro-lifers and still insist that, on the job, they
hew to the organizational party line.

Rick Duncan wrote:
> Let's try a hypothetical involving a secular
> organization that receives govt. funds and subsidies.
> Planned Parenthood gets lots of  govt money, and I
> assume they can and do discriminate on the basis of
> viewpoint against pro-life job applicants. For
> example, suppose I apply to Planned Parenthood for a
> position as a staff attorney, and they inform me that
> my openly pro-life beliefs preclude me from
> consideration, because I can not be an effective
> representative and advocate of abortion rights while
> openly holding a strong pro-life point of view. Does
> this viewpoint discrimination by PP violate my free
> speech rights because PP is a recipient of govt funds?
> How is this different from a religious grantee
> discriminating on the basis of viewpoint?
>
> Now suppose the govt. decides to withhold grant money
> fromm PP because it discriminates against pro-lifers
> when employing attorneys, nurses, managers, and other
> professionals. Does PP have any 1A claims? Does this
> antidiscrimination rule for grantees interfere with
> PP's right of expressive association under Dale? If
> so, then why doesn't Dale also protect the right of
> religious grantees to make employment decisions
> designed to protect its right to express its values
> and beliefs?
>
> Cheers, Rick Duncan
>
> --- "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> wrote:
> >         My post was a response to Marci's broader
> > claim that the case could
> > be resolved simply with the principle that "[we]
> > assume the risk of
> > intrusion when [we] take the money."  I agree that
> > narrower principles --
> > that groups assume the risk of some intrusion in
> > some situations when they
> > take the money -- may be more sensible here; as I
> > think my post mentioned,
> > some strings are permissible.  But the justification
> > has to go beyond just a
> > "you take the money, you accept the strings"
> > position.
> >
> >         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
> >
> > Marty Lederman writes:
> >
> > > 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)
> >
>
>
> =====
> "Do you not think an angel rides in the whirlwind and directs the storm."
>     --President George W. Bush (quoting John Page)
>
> "When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone.
"  -C.S. Lewis
>
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Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu