Georgia Lawsuit with Charitable Choice Implications

[LoAndEd at AOL.COM]

As to (1):  The Georgia suit is a direct-aid case, not a "private choice" case.  Indeed, it's not even a "per capita" case.  Instead, it's a case in which the state, exercising its selectivity and discretion, chose the religious organization, presumably from among many applicants for $$, and presumably with the forseeable effect that the government's funds would be used to discriminate (whereas they would not have been so used had the state chosen a secular provider).  I'm not saying that this means the funding is unconstitutional -- but it is a whole lot different than a tax deduction avalable to all that is determined by wholly neutral and non-subjective criteria.  See Harlan's concurrence in Walz.  To my mind, this makes the EC question more complicated.

As to (2):  The holding in Norwood, was, indeed, that inclusion of schools that discriminate in funding programs violated the Equal Protection Clause.  The SG urged the Court to adopt the narrower holding that you suggest -- namely, that the particular program at issue there violated the Equal Protection Clause because it was set up to evade the required desegregation obligation of the public school system -- but the Court refused to so limit its holding (deciding instead to rule more broadly, as the NAACP LDF urged).  I'm not trying to defend Norwood here -- but it's never been overruled or limited (and the lower courts that have considered the issue have followed it).  Having said that, I would note that even if Norwood is "good law," the Georgia case involves a different form of discrimination, a different principal constitutional provision (the EC rather than the EPC), and a different sort of program (a discretionary, selective grant program rather than an "automatic" tax exemption).  I think these distinctions make Norwood of minimal precedential importance.  But Norwood does show -- as do many of the First Amendment cases that Eugene is so fond of citing to me (e.g., NYT v. Sullivan, Hustler v. Falwell, et al.; see also, of course, Shelley v. Kraemer) -- that the Constitution sometimes does prohibit the government from providing aid "neutrally" to private parties where such aid will facilitate conduct in which the government itself may not engage.

As for (3):  Well, the Government argued in Bob Jones that the tax deduction would not be unconstitutional, but the Court did not reach the issue.  And, for what it's worth (not much, I hope), in VMI Justice Scalia did suggest that, per Norwood, there's a constitutional issue with respect to the funding of women's colleges, girls' and boys' clubs, etc.

Marty (in my personal capacity)

Eugene writes:

"1)  I'm not sure that the Court has treated tax deductions and funding *very* differently, even if we limit this to EC purposes.  Tax deductions and funding that discriminate in favor of religion, I take it, are both unconstitutional (see TM v. Bullock).  Tax deductions and funding that operate on a private-choice basis are both constitutional.  The one area of difference seems to be tax deductions and funding that operates on a per-capita-aid basis (because of O'Connor's concurrence in Mitchell v. Helms); so I agree that the Court does treat tax   deductions and funding differently in some respects.  But I'm not sure how much the existence of this different treatment should persuade us to adopt this different treatment in other areas, especially since the logic for the different treatment doesn't seem to me to be that persuasive.

          2)  As I understand Norwood, the holding was not that all inclusion of schools that discriminate in funding programs would violate the Equal Protection Clause; rather, it was that the particular program at issue there violated the Equal Protection Clause because it was set up
  to evade the desegregation of the public schools (though I admit that I'm operating from
  memory here, and may be mistaken).  Is it really the case that the use of GI Bill funds at a
  university that practices religious discrimination -- or the use of aid for the blind funds at a
  seminary (a la Witters) that prefers students from some religion -- violates the Equal Protection
  Clause.

          3)  As to the argument made in Bob Jones, I think the answer would be that the IRS is
  *not* constitutionally required to deny discriminatory organizations a tax exemption -- unless
  we conclude that, for instance, women's colleges, girls' and boys' clubs, private religious
  charitable associations, and others may not be tax-exempt.