Georgia Lawsuit with Charitable Choice Implications

[Lupu, Ira (Chip)]

Rick has blurred the facts in his discussion below to focus on
positions of "leadership'" and "responsibility."  I said from the start
that a funding program that required surrender of the ministerial
exemption of religious entities would be troublesome; it would say,
in efect, that clergy must be excluded, or that clergy had to include
non-members of the faith.  But not all employees of such a group
are clergy, and not all Planned Parenthood employees are
"leaders," whatever that means.  Dale was perhaps too expansive
in recognizing a category of leaders or spokepersons for the group.
And I still don't understand why the government can tell a group
what to say (and what not to say) with government money, but
can't tell it whom to hire (or whom it must consider) to express that
message with the same money.

> --- "Lupu, Ira (Chip)" <iclupu at MAIN.NLC.GWU.EDU>
> wrote:
> > 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.
>
> This can't be right. PP has a strong interest in being
> viewed as an organization that supports and proclaims
> reproductive autonomy for women. PP speaks through its
> professional staff. And I am not a good spokesperson
> for the right to kill innocent children, even if I
> sell out and mouth the party line from 8 to 5. PP acts
> reasonably and within its rights when it refuses to
> hire someone with my views on abortion for a position
> of responsibilty in the organization.
>
> Thus, an antidiscrimination rule that requires PP to
> hire  pro-lifers for positions of leadership in the
> organization (as a condition to receiving health care
> grants) is a rule that substantially burdens PP's
> right of expressive association, its right to
> *credibly* hold itself out as an organization that
> supports abortion rights and reproductive autonomy.
>
>
> Rust stands for the principle that the govt can insist
> that you provide the services it is paying you to
> deliver. It does not stand for the principle that govt
> can impose unrelated conditions on grants. PP is
> willing to provide exactly the reproductive health
> services the govt pays it to provide. It merely wishes
> to do so through employees who believe in the cause of
> reproductive rights. I think that it has a 1A right to
> protect its expressive identity and that the govt can
> not force PP to choose between its expressive identity
> and govt grants.
>
> Does anyone agree with my position here? If not, where
> did I go wrong?
>
> Cheers, Rick Duncan
>
> >
> > 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
> > >
> >
> === message truncated ===
>
>
> =====
> "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