charitable choice hypothetical
marty.lederman at comcast.net
Sun Dec 26 07:10:46 PST 2004
Please excuse the egregious typos scattered throughout this post (especially where I "hold my breadth"!) -- I was simply too lazy to proofread this morning, which ought to teach me a lesson.
----- Original Message -----
From: Marty Lederman
To: Marty Lederman ; Law & Religion issues for Law Academics
Sent: Sunday, December 26, 2004 8:54 AM
Subject: Re: charitable choice hypothetical
I think I now see what Alan's getting at -- namely, that he's testing the legitimacy (or adequacy) of the current state-action doctrine. This is something that Martha Minow, and very few others, have been examining lately. The puzzle is something like this:
1. At time A, the state performs various social service functions -- whether it be drug counseling, welfare administration, operating a prison, or providing bus service to public and private schools. Those functions are indisputably and uncontroversially subject to constitutional norms -- e.g., the First Amendment, due process, equal protection, etc. -- and therefore (among other things) hiring cannot be done on a racial or religious basis.
2. At time B -- in the age of privatization -- it becomes too expensive for the state itself to perform those functions (or to monopolize the field, in any event), or legislatures decide that state-run systems are less efficient than private systems. Therefore, such services and functions "devolve" to the private sector, with the state deciding to substantially subsidize the private actors. The functions are more or less the same. And the objectives -- incarcerating felons; rehabilitating drug users; taking kids to school -- are exactly the same. That is to say, they are what have long been viewed as public functions. But the state has "contracted out" the services.
3. Under standard Rehnquist Court state-action doctrine, the funded private actors at time B are not state actors, and therefore all of the constitutional norms that governed the state when it was performing the services at time A suddenly fall away, even though the services -- and the objectives -- are precisely the same.
Alan might well be trying to get us to ponder -- why should that be? I think it's a very good question. Indeed, I think that it's a very helpful way to think about why some of us are so troubled by discrimination on the part of those who receive state funds in order to perform valauble social services. But if I'm right about this, then the object of Alan's "critique" is not so much the charitable-choice proponents, as it is the Burger/Rehnquist Court decisions on state action (e.g., Jackson, Blum, Rendell-Kohn).
Indeed, as many begin assessing Rehnquist's legacy on the Court, we should not forget that one of his earliest and most complete, most startling "victories" was the thorough and decisive rejection of the post-Brown challenge to the state-action doctrine. In the 1960's, recall, the question of state action was the most important, and most seriously analyzed, question in constitutional law. See, for example, Charles Black's magisterial Harvard Foreword on state action, still one of the single greatest law-review articles ever written, but now laregly ignored because it seems so anachronistic. It only took Rehnquist a couple of landmark decisions to end that debate completely, to the point where, even in an age of massive "privitization," (i) almost no one's writing about it anymore; (ii) modern law students (and courts, of course) simply take for granted that the state action distinction is meaningful, valid and inevitable; and (iii) Burton and Reitman are but a distant and faint memory, recalled, if at all, only as an inexplicable skirmish of no real moment.
Perhaps -- although I'm not holding my breadth -- these antidiscrimination questions relating to charitable choice will get people to wondering once again about the state action question.
----- Original Message -----
From: "A.E. Brownstein" <aebrownstein at ucdavis.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Thursday, December 23, 2004 5:46 PM
Subject: Re: charitable choice hypothetical
> I'm certainly not arguing that this is constitutional. But I also don't
> think that "I can't imagine anyone thinking this is constitutional" answers
> why it is unconstitutional.
> I suppose part of the problem here is that we apparently disagree as to the
> rationales for allowing discrimination in hiring by religious
> organizations. I think one of the rationales is that some religious
> organizations believe that the people performing the service at, with, or
> for a religious organization should be of like minded creed. Particularly,
> in a school context it is not difficult for me to understand why a
> religious school would prefer that everyone working with children to be of
> the same faith -- even if they were on the government's payroll.
> Thus, under charitable choice a religious non governmental provider could
> not be required to participate in an ecumenical program where members of
> diverse faiths would work together, for example, in staffing a soup
> kitchen. Having non-believers working in the program would be unacceptable
> whether they were on the government payroll, on a different religious
> organization's payroll or the religious institution's payroll. I take it
> your position is that having co-workers with shared beliefs is not part of
> the rationale for charitable choice -- and that the key concerns involve
> non-believing employees having an employment or other financial
> relationship with the religious provider.
> I don't discount these latter rationales, but I have certainly heard the
> former ones expressed as well.
> Alan Brownstein
> UC Davis
> At 04:31 PM 12/23/2004 -0500, you wrote:
>>Well, I suppose the reasons that there is "no conventional Establishment
>>Clause basis for objecting to my hypotheticals" are that (i) I can't
>>imagine anyone actually suggesting that state staffing decisions be made
>>on the basis of religion and (ii) that it seems clear that it would be
>>unconstitutional. States simply cannot make staffing decisions on the
>>basis of employees' religion. Indeed, that would even be the case where
>>there is a religious "accommodation," such as provision of chaplains in
>>the military or in prison -- assignments can't be made on the basis of the
>>But even if one could imagine a situation in those contexts where
>>religious selectivity might be acceptable (e.g., a Catholic soldier asking
>>for a priest rather than a rabbi to administer last rites, where the
>>choice does not affect the employment oppotunities of either chaplain),
>>what would be the theory here? If the bus driver is a state employee
>>(i.e., a state actor), what possible reason would the school have for
>>insisting that she be of a particular religion? As far as I can tell --
>>having given the question about two seconds of thought -- none of the
>>usual rationales for coreligionist hiring in the charitable-choice context
>>would be apposite where, as here, the driver is an employee of the state
>>and is not acting as part of a church or as a surrogate of the school.
>>----- Original Message -----
>>From: "A.E. Brownstein"
>><<mailto:aebrownstein at ucdavis.edu>aebrownstein at ucdavis.edu>
>>To: "Law & Religion issues for Law Academics"
>><<mailto:religionlaw at lists.ucla.edu>religionlaw at lists.ucla.edu>
>>Sent: Thursday, December 23, 2004 4:19 PM
>>Subject: Re: charitable choice hypothetical
>> > Thanks for a thoughtful response, Marty. But in fact I am asking a version
>> > of the more extreme question that you presume is answered by the case law.
>> > In my hypo, the state is providing the bus service. There are two subsets
>> > of the question. One involves the religious institution being given a
>> > choice among existing state employees of who is assigned to the job of bus
>> > driver (if no one of the appropriate faith is currently employed by the
>> > state, the accommodation can not be provided.) The other involves the
>> > state taking the religious institution's accommodation needs into account
>> > in making hiring decisions. I don't think either Torcaso or Larkin control
>> > the first question. Indeed, it is not entirely clear to me that either
>> > Article VI or Larkin control the second situation. The accommodation here
>> > is available to all religious schools so the state is not denying all
>> > employment to persons of a particular religion. Obviously, there will be
>> > more job opportunities for members of larger faiths than smaller faiths.
>> > But is that really a prohibited religious test for office. I assume that
>> > there are more Protestant Ministers hired as Army Chaplains than Rabbis
>> > (because there are more Protestant than Jewish soldiers) but I don't think
>> > that violates Article VI.
>> > The Larkin analogy is stronger. But it turns on what constitutes a
>> > delegation of power. It might not be hard to structure the
>> accommodation to
>> > avoid that constraint. There is also the question of why giving a
>> > institution capital, real property, or materials that may be used in a
>> > religiously discriminatory way is substantively different than giving them
>> > a state paid employment position for delegation purposes. I do not suggest
>> > that there may not be persuasive answers to these questions, but they may
>> > not be as self evident as you suggest.
>> > Marty, may I assume from your answer that you agree that Article VI and
>> > Larkin aside, there is no conventional Establishment Clause basis for
>> > objecting to my hypotheticals.
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