RFRA and government subsidies

[Marty Lederman]

There's no "right" answer to these questions, because there's extremely little caselaw, and even less consensus, on what constituted a "substantial burden" in FEC law pre-Smith, or under RFRA/RLUIPA.  There's Sherbert itself, of course, which suggests that the denial of at least some types of very important, baseline benefits to individuals can result in a "substantial burden."  But when the benefit in question is something less life-sustaining than unemployment benefits -- who knows?  My prediction is that the Court will almost never view conditions on the use of benefits -- especially benefits such as charitable choice dollars offered to organizations -- as establishing a substantial burden.  (But see the Bush Administration's contrary view, noted below.)  (One would think that the more the condition is extended "program-wide," as in Rust -- and as opposed to, e.g., "merely" a condition on the use of the particular, state-conferred funds -- the closer the case would get to a classic unconstitutional conditions situation (because as a practical matter, the costs of strict segregation of functions makes it impractical to use even one's own dollars to engage in the religious activity), and thus the Court might be more willing in such a case to recognize a substantial burden.  But then in Locke v. Davey, the Court in a footnote blithely dismissed the burden on Davey of attending two undergraduate institutions simultaneously as a condition on receiving the scholarship.  This sort of move threatens to subsume unconstitutional conditions analysis altogether.  See Doug's article on Davey, 118 Harv. L. Rev. at 181.)

There are at least two things worth reading on this:

1.  Chip's 1989 Harvard piece on free exercise burdens, which was (and remains) the best treatment of the topic, but which was unfortunately rendered fairly beside-the-point when the Court decided Smith just after it was published.  In light of Cutter and O Centro, with RFRA/RLUIPA alive and well, Chip's analysis has become relevant once again, and is well worth reconsideration.  See 102 Harv. L. Rev. 933, 977-982.  (Whether the Court would move in the directions Chip suggests is, of course, quite another question -- but in any case, his discussion of burdens in the conditional-benefit context is very helpful, and is one of the only worthwhile things out there.)

2.  The Bush Administration has adopted a very generous conception of "substantial burden" under RFRA in the context of deciding whether to grant exemptions to organizations that wish to receive social-service funds without complying with statutory anti-discrimination requirements.  See 67 Fed Reg. at 77,352; 68 Fed. Reg. at 56,435.  (Full disclosure:  I worked at OLC when the Proposed Rule was being crafted.)  As the Final Rule notes, apparently there were 19 comments submitted to HHS complaining of the Department's RFRA analysis.  It might help if you could get your hands on some of those (I haven't seen them).
 


----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Friday, February 24, 2006 1:13 AM
Subject: RFRA and government subsidies


I'm writing a short piece on the Freedom of Expressive
Association and Government Subsidies -- basically whether the government
may condition various broad subsidy programs (student group subsidies,
tax exemptions, school voucher programs, and the like) on the
participating groups' agreement not to discriminate based on religion,
sexual orientation, race, etc. in selection of beneficiaries, members,
or officers.  I think I've got a good handle on the pure First Amendment
issues, but I'm not sure what to say about the Religious Freedom
Restoration Act (federal and state) argument, and I'd love to have
fellow list members' help.

Here are the hypotheticals that most interest me, two involving
expressive association and two involving other rights; assume a RFRA is
in play as to all of them:

(1)  A university limits student group funding only to groups
that don't discriminate.  A student group sincerely believes that in
order to spread the Gospel the right way, they must limit their officers
and members to Christians who don't engage in homosexual activity.

(2)  The federal government provides that contributions to
nonprofit groups are tax-deductible only if they don't discriminate
based on religion and sexual orientation.  A nonprofit group seeks
deductibility for contributions to it despite the fact that its sincere
beliefs require it to limit its officers and members to Christians who
don't engage in homosexual activity.  (This isn't far from Bob Jones,
but with religious or sexual orientation discrimination.)

(3)  The federal government provides that contributions to
nonprofit groups are tax-deductible only if the groups don't lobby or
electioneer.  A church seeks deductibility for contributions to it
despite the fact that its sincere beliefs require it to urge its members
to vote against evil politicians.  (This is like the Branch Ministries
D.C. Circuit case, except that in that case the church couldn't assert
such a sincere religious belief.)

(4)  A state government gives funds to nonprofit medical
facilities, but only if they promise not to use those funds to perform
abortions.  A particular facility's owners have a sincere religious
belief requiring them to help perform abortions when they believe a
woman's emotional and spiritual health would be in danger without the
abortion (which they think is often).  They want to use their subsidy to
provide for the doctors' and nurses' salaries needed to perform
abortions, and for the supplies needed in the process.

Given Sherbert v. Verner -- which the RFRAs treat as a
substantive rights case and not just a nondiscrimination/individualized
exemptions case -- and Bob Jones University, should courts find a
substantial burden in these cases?  (I'm willing to set aside for now
the question whether they should find that the law passes strict
scrutiny.)  Or should they conclude that, because these involve mere
refusals to subsidize a right, there's no substantial burden?

Many thanks,

Eugene
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