pageok
pageok
pageok
Are Pell Grants Unconstitutional? What About Tax Exemptions for Nonprofit Advocacy Groups?

Those who argue that the Establishment Clause mandates exclusion of religious institutions from generally available funding programs sometimes argue that such exclusion is needed to protect the religious institutions themselves. Here's an excerpt from Justice Souter's dissent in Zelman v. Simmons-Harris, the 2002 case that upheld the constitutionality of school choice programs that include religious schools:

[I]n the 21st century, the risk [to religion from participation in aid programs] is one of "corrosive secularism" to religious schools, and the specific threat is to the primacy of the schools' mission to educate the children of the faithful according to the unaltered precepts of their faith. Even "[t]he favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation."

The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious schools may not "discriminate on the basis of ... religion," which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as non-believers....

When government aid goes up, so does reliance on it; the only thing likely to go down is independence.... A day will come when religious schools will learn what political leverage can do, just as Ohio's politicians are now getting a lesson in the leverage exercised by religion.

This is a nontrivial policy concern, it seems to me, though on balance I think the value of school choice programs outweighs this risk. But if it's made into a constitutional argument, then I don't see why it wouldn't equally ban the participation of nonreligious speakers in general aid programs. If we take this argument really seriously, then the government should be forbidden from letting students use government-provided grants (Pell grants, GI Bill grants, and the like) in private schools — after all, these grants may come with strings that diminish the "independence" of universities, as historically has indeed happened.

Likewise, the government should be forbidden from letting nonprofit advocacy groups (such as the ACLU, People for the American Way, NARAL, and the like) get tax exemptions, either direct exemptions from the income tax and property taxes, or deductibility for contributions to those groups. After all, such tax exemptions are themselves government subsidies that may come with strings that diminish the "independence" of advocacy groups, as historically has also happened. (For examples, consider antidiscrimination conditions attached both to federal education grants and the tax exemption, which are of course directly parallel to the antidiscrimination conditions attached to school choice funds that Justice Souter complains about; consider also the rule that groups that get tax-exempt contributions may not themselves engage in electioneering or lobbying, but instead have to set up special affiliates for those purposes.)

Of course, these groups are secular groups, and we shouldn't worry as much about their religious freedom. But they are First-Amendment-protected groups, so we should presumably worry about their freedom of speech. Government actions that undermine the independence of religious institutions are bad; but so are government actions that undermine the independence of advocacy groups and universities. (It's true that the Establishment Clause applies only to establishment of religion; but Justice Souter's argument here is focused specifically on harm to the religions' independent practice of religion, which is directly paralleled by the constitutional protection of speakers' independent practice of speech. And on its face the Establishment Clause speaks simply of not establishing religion, or to be precise not enacting laws respecting establishment of religion, not of declining to interfere with the independence of religion. The constitutional constraints on the interference with religious institutions, it seems to me, must closely parallel constitutional constraints on the interference with speaking institutions.)

We should indeed worry about the government using subsidies as a tool for interfering with the independence of universities, advocacy groups, and other speakers. But most liberals (the group most likely to object to the inclusion of religious speakers in generally available funding programs) nonetheless support many such subsidies. Instead of saying that the subsidies are unconstitutional or even on balance unwise, they try to fight undue interference with speakers' independence either (1) through the political process, or (2) through the development of constitutional rules that limit the strings that may be placed on the subsidies. Even libertarians, in my experience, may criticize such subsidies to speakers but don't think that the subsidies are unconstitutional, despite the threat to independence that they may pose.

Yet when the subsidies flow to religious institutions (as part of evenhanded programs that don't discriminate based on religion), many people argue that protecting the independence of religious institutions means that the Constitution requires discriminatory exclusion of those institutions from funding programs. Why would this be so, if protecting the independence of speakers doesn't mean that the Constitution requires exclusion of speakers from funding programs?

Ugh (mail):


Closed tag?
2.24.2006 4:59pm
Anderson (mail) (www):
Whether a religious institution needs to be sheltered from gov't interference is a call for that institution, not for a paternalistic gov't.

But as EV implies, the actual situation is a double-standard for religious institutions. There are other good reasons, perhaps, for excluding them from funding, but let's not say we're doing it For Their Own Good.
2.24.2006 5:15pm
dweeb:
These concerns are why Hillsdale (and I believe Grove City) doesn't accept a dime from the government. Their students are not even allowed to accept Pell Grants or Federal loan guarantees. Of course, if parents weren't paying so much taxes to fund programs like Pell Grants, maybe they could afford to educate their kids themselves.
Maybe vouchers aren't the best way to go - maybe a tax credit for keeping your kids out of the public schools, while still meeting compulsory education requirements, would be better. After all, is it fair that home schooling parents can't cash the vouchers?
2.24.2006 5:24pm
Public_Defender:
The restictions seem par for the course for government money.

My fellow liberals should re-think their opposition to vouchers. We should support them, but require eligible schools to pledge not to discriminate on the basis of religion, race, sex or sexual preference in admissions and hiring if the schools want the money.

That would solve Hillary's jihad problem and keep our money from subsidizing behavior many liberals find abhorrent (discrimination based on sexual orientation).

I would likely support a voucher program with those restrictions.
2.24.2006 6:06pm
Mary Katherine Day-Petrano (mail):
Wow. Does this mean if I went to a Jesuit law school and got Pell Grants they were unconstitutional?
2.24.2006 6:31pm
logicnazi (mail) (www):
I think you are misunderstanding the possible argument. Though I was unclear if you were suggesting that Souter believes this is a constitutional concern or not.

The claim is that this sort of funding/grants represent something like an endorsment of religion and not a suppresion of religion.

A key difference between the establishment clause and the free speech clause is that the free speech clause only prevents the government from suppressing or otherwise interfering with private speech. The government is perfectly free to endorse its own secular speech so long as it doesn't coerce others to do it for them or prevent disagreeing speech. The establishment clause is quite different. The government is NOT allowed to run commercials urging people to join the lutheran church the way it can run commercials urging people to join the milatary or join americorps (or substitute your favorite secular charity).

I think the constitutional argument here is that grants with conditions on them are equivalent to grants to religions with particular beliefs. The government certainly is prohibited from giving tax breaks only to those christian denominations which favor a literal interpratation of the bible. In fact these restrictions from the establishment clause would even seem to apply to non-speech acts.

Suppose the adminstration decided to give tax breaks/grants or whatever equally to all religions that allowed gay ministers, or female ministers, or married ministers. Such requirements would clearly be government endorsement of particular theological positions (the catholic church is wrong to believe being single is an important symbol of marriage to the church). So the question becomes how is requirements on other employees with respect to being black or other non-discrimination requirement any different?

Ultimately this raises a very interesting question of whether the 14th ammendment was intended to supersede/repeal parts of the first ammendment. In any case the argument seems quite seperate from the free speech issue and quite troubling.
2.24.2006 6:44pm
M. Lederman (mail):
Eugene, I agree that this particular argument is a contentious one -- what business is it of the state to paternalistically save religion from the problems that come with dependence on government largesse? -- but it's not as if Souter pulled it out of the blue. There are constitutional reasons to worry more about the degradation of religious institutions than about the dependence of other, non-religious institutions on the state. Indeed, if one buys into the notion that the Religion Clauses are motivated by the concerns expressed in Madison's Memorial and Remonstrance, then "maintaining the purity and efficacy of Religion" is a constitutional objective -- but not so (or not so much so, anyway) maintaining the "purity and efficacy" of other private institutions. The Establishment Clause, on this view, requires the state not to promote "pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution." The Free Speech Clause has not traditionally been seen as requiring equivalent prophylaxis to protect the independence of other groups. Perhaps, as you suggest, it should -- but the history is very different.

Moreover, Justice Souter himself "take[s] this argument really seriously" -- but he does not think it means excluding religious options when it comes to the use of such ubiquitous and generally available benefits as police and fire protection, Pell grants, GI Bill grants, tax exemptions, etc. He thinks that Witters, Walz, etc. are distinguishable -- for reasons he discusses at great length in Zelman and other cases. And in this respect, your old boss (SOC) agrees with him, too. These are, no doubt, difficult lines to draw, and to justify, but it's important to note that Souter and O'Connor would not exclude religion from public benefits in nearly as categorical or comprehensive a fashion as you suggest.
2.24.2006 6:47pm
John Rosenberg (mail) (www):
I would argue that another issue that should be addressed as these difficult doctrinal lines are drawn concerns how to relate religious/secular Constitutional doctrine (whatever it is) to the continuing and perhaps surprising public devotion to what Gunnar Myrdal (and others) have called the American Creed -- the principle that every individual has a right to be treated without regard to race, creed, or color. ("Surprising," because that principle has been trespassed upon by a generation of racial preference.)

If "diversity" allows governments to distribute benefits and burdens based on race, why not based on religion? Would (should?) admissions preferences extended to Arab-Americans be struck down as aid to Muslims (assuming, of course, that the preponderance of beneficiaries were Muslim)?
2.24.2006 9:17pm
DDR:

Souter is saying: Once the government has your money, it can't very well give any of it back to you for religious purposes -- because that could let the government influence your religious activities.

But wait. The fact that the government took the money in the first place has an even bigger influence over your religious activities -- stops them dead in their tracks.

Of course you can make do with what's left after the government taxes you. But since that's about 50% of GDP (if you count all taxes at all levels of government), the effect is non-trivial.

Or, to see the argument in starker relief, suppose we further socialized, to the extent that the government was taking 100% of GDP and then furnished the people with all their needs. Except for religious needs of course, because Souter's argument would forbid that. We now have the government shutting out 100% of religion in the name of not influencing religion!

But even at current taxation levels, this effect is substantial. People who pay twice to send their kids to private schools feel this directly. So I think Prof. Volokh is on the right track when he insists that we need to fund things like schooling without regard to whether the school is religious or not. The criteria should not explicitly exclude religion.

The government is not supposed to either promote or inhibit religion, but if you take away 50% of income (according to the U.S. government's own calculation) and quarantine those funds from religious use, you are inhibiting religion.
2.24.2006 9:28pm
Lev:

We should indeed worry about the government using subsidies as a tool for interfering with the independence of universities, advocacy groups, and other speakers.


Why? I mean, why should we worry more about universities etc than everyone and everything else that deals with the government and thus becomes subject to the strings attached to federal money, whether by subsidy as in free or grant money, or by contract? If you take the money, you are subject to the strings attached to it. Universities, in spite of the beliefs of their inhabitants, are not collections of Gods exempt from the same laws and conditions that apply to the ignorant plebian masses living in the mud.

If you don't like the strings, don't take the money.
2.25.2006 12:06am
logicnazi (mail) (www):
DDR Said:


because Souter's argument would forbid that. We now have the government shutting out 100% of religion in the name of not influencing religion!


I think this is misreading the argument. I think what he would say is that government could not give you back that money for religion with strings. In other words the government couldn't give people who belonged to a religion that believed in tolerance and non-discrimination more of their money back than those who believed in religions that didn't advocated these values. However, I think this example provides a powerfull rebuttal of what Lev argues:


why should we worry more about universities etc than everyone and everything else that deals with the government and thus becomes subject to the strings attached to federal money, whether by subsidy as in free or grant money, or by contract? If you take the money, you are subject to the strings attached to it.


The problem with this argument is that it clearly has to break somewhere. Surely you don't believe the government could fine people for being lutherans, advocating discrimination, or even just giving charitable donations to a religion that does discriminate. However, any system of fines can be transformed into a system of taxes and grants with strings. In the most extreme case imagineable take the situation that DDR suggested with a tax rate of 100%.

So imagine the government taxes everyone at 100% but then grants them 50% of that money back to people who accept the strings that they can't donate any of that money to a discriminatory institution or use that money to publish discriminatory views. In effect that would amount to a fine of all your money for voicing the wrong sorts of views.

In particular with religions imagine the government adopts a program of matching charitable donations so every dollar you donate to a non-profit (including religions) gets matched by a government dollar. Of course to enact such a program they raise taxes from everyone. However, they add the additional restriction that only non-discriminatory groups are eligable. Since catholics don't allow women or gays to be priests they wouldn't qualify. In effect this amount to a fine of 50% of charitable income against religions that have the wrong sort of theological beliefs (men are uniquely suited to represent god on earth).

The problem that Souter is pointing out is that in light of the income tax ammendment (I always forget the number) there is an equivalence between fines and taxation + grants with strings. Taking someones money and only giving it back to them if they agree not to do X is no different than fineing them for doing X. If we don't want important principles about free speech and free worship undermined by a clever rephrasement in terms of grants we need to be carefull here.
2.25.2006 3:43am
David M. Nieporent (www):
Of course, we already have the Bob Jones case, in which the Supreme Court held that an institution's disfavored religious views constituted a valid reason to deny it a tax exemption.
2.25.2006 9:09pm
Lev:
Re: logicnazi (mail) (www) 2.25.2006 3:43am


The problem with this argument is that it clearly has to break somewhere. Surely you don't believe the government could fine people for being lutherans, advocating discrimination, or even just giving charitable donations to a religion that does discriminate. However, any system of fines can be transformed into a system of taxes and grants with strings. In the most extreme case imagineable take the situation that DDR suggested with a tax rate of 100%. ...Taking someones money and only giving it back to them if they agree not to do X is no different than fineing them for doing X.


That appears to have come from a logic free zone, undisturbed by the real world. Within the US, taxes are taxes, and fines are fines. Taxes may be economic penalties, but they are not legal penalties. One need only look at case law, and practive, relating to taxes and penalties under the Internal Revenue Code, for example, the early term Clinton tax increases. The tax increases were passed by Congress and signed into law mid to late year, and made retroactively effective as of the first of the calendar year. That is because taxes are taxes, and not fines subject to the ex post facto prohibition. Taxpayers are subject to fines for failing to have sufficient taxes withheld or failing to pay estimated tax through the calendar year. Because fines are penalties they are subject to the ex post facto prohibition. So, even though the tax increases were retroactive to the first of the year, the fines could only apply to failure to pay estimated taxes after the date the legislation was enacted into law.

Taxes are taxes. Fines are penalties.

Re the other stuff: one could imagine a system in which Roman Catholics are required to pay income taxes, and the government then uses that tax money for grants to Planned Parenthood and its abortion services, while not providing similar money to Catholic Services because they don't provide abortion services.


The problem with this argument is that it clearly has to break somewhere.



The problem is that people want government money, but don't want to have to comply with the strings attached to it. One need only look at the law schools and other institutions who want federal money but don't want to have to allow ROTC and recruiters on campus to get it.
2.25.2006 11:40pm
JosephSlater (mail):
Public Defender:

Although it would be too off-topic to get into a back and forth about it here, I think there are plenty of reasons to oppose vouchers beyond the religious discrimination issue. Public accountability and control over K-12 schools that get public funds is one.

More broadly, vouchers don't pay anything like enough to educate a child. How many private schools do you know that charge 2-3 grand tuition? Let me guess: NOT your local elite Whatever Private Day school -- they're charging 10 grand +, well beyond what kids with vouchers could afford. The folks charging 2-3 grand are the schools that have lots of funding from their sponsor: specifically, Catholic schools. That's why in places where they've been allowed (e.g., Wisconsin), voucher programs wind up being used almost exclusively for Catholic schools, and why the main backers of voucher programs are Catholic schools. I have nothing against Catholic schools -- hey, I have a PhD from Georgetown. But vouchers are basically a public subsidy for Catholic schools, and I'm not for that.
2.26.2006 7:12pm
Deoxy (mail):
"Within the US, taxes are taxes, and fines are fines."

And truisms are trusisms. Yay.

Go look up the definition of "fingible", then see how it applies to "taxes" and "fines". As a further excercise, you could note how that applies to the arguement put forth by "logicnazi", which you have the arrogance to call "logic free", even though he gives painfully obvious examples of how it works.

Indeed, as he specifically pointed out, using your oh-so-convenient definitions of "taxes" and "fines", it is quite possible to construct a Constitutionally kosher method of completely and utter destroying any particular religion you want. That files squarely in the face of the Constituion.

That was the point. Renaming something doesn't magically make it not the same thing it was before.
2.27.2006 1:43pm
Deoxy (mail):
"fUngible"

PIMF. Sorry.

(I don't think "fingible" is even a word...)
2.27.2006 2:05pm