I wrote an article on this for a Stanford Law Review symposium on Chief Justice Rehnquist and Justice O'Connor. The issue is whether the government may limit a subsidy to groups that don't discriminate based on various criteria, given that the groups may have a constitutional right to so discriminate (in the wake of Boy Scouts v. Dale). Somewhat to my surprise, I've tentatively concluded that the answer is yes, notwithstanding Dale and Rosenberger v. Rector. I'm not a big fan of the antidiscrimination rules involved, but it seems to me they are indeed constitutional, even when applied to ideological groups that have ideological reasons to discriminate based on religion, sexual orientation, sex, race, ethnicity, and the like.
If you're up on the Court's First Amendment jurisprudence that touches on this subject -- and, better yet, its jurisprudence on refusals to subsidize abortion, private schooling, and other constitutional rights, a jurisprudence that I rely on heavily in my piece -- I'd love to hear your views. I have until March 3 to provide Stanford with my next draft, after which the editing process will get fast and furious. I should say (realizing that beggars can't be choosers) that while there are lots of interesting broad philosophical issues that my topic touches on, I would prefer to get comments from people who have read (or at least skimmed) the paper, and who are up on the somewhat technical legal doctrines that the paper relies on.