One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?
The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying.
Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, rather than for preservation of life or prevention of serious injury), but choose to exclude abortions. There’s no need for a very strong, overriding reason for that exclusion, either, because the government can choose to try to serve two interests at once – helping people get medical procedures while making sure that taxpayer money (or taxpayer-purchased property) isn’t used for performing abortions.
Likewise, it seems to me that universities are entitled to provide a subsidy in order to broaden the spectrum of viewpoints advocated on campus by private organizations, while at the same time ensuring that the subsidy ends up benefiting students without regard to race, religion, sexual orientation, and the like (and not just in the aggregate but for each particular group). I think that’s an unwise decision, partly because the second interest does in some measure undermine the first. But it seems to me quite constitutional.
And the answer to what government interest is served here is the same as that given by President Kennedy in supporting Title VI of the Civil Rights Act: That money gathered from taxpayers (or students) without regard to race and the like is to be distributed only to groups that admit all students without regard to race and the like. That interest is legitimate, and therefore constitutionally sufficient when it comes to choosing which groups get government funding, even if I think that elevating it over rival interests is unwise in this context.
readery says:
Professor Volokh,
My difficulty with your approach is that you seem to be analyzing the matter as if it were a speech case.
The Religion Clauses give religions autonomy of a kind no other speech-oriented group has. A secular court has power to interpret the internal rules of any kind of secular group and decide things like who its rightful leader is and whether it properly expelled a member. But uniquely for religion, a secular court has no power to interpret the internal rules of a religion or determine matters like who its leaders or members are. And other government bodies like state universities don’t either.
The fact that government powers may happen to be consistent with the Freedom of Speech clause is simply not relevant to whether they are consistent with the Religion Clauses. Assuming governemnt could make these sorts of rules for secular student associations, this doesn’t say anything about whether it would have power to do so for religious ones. The Establishment Clause and its unique interpretive jurisprudence means that government simply doesn’t have power to support causes consistent with its values when comes to matters of religion in anything like the way it does with other kinds of causes. The spending-to-support-speech cases that you cite just plain don’ t apply. Government has unique limitations regarding religion which simply don’t exist when it comes to any other subject or kind of group.
The Supreme Court has determined that the right to select leaders and members and govern internal affairs autonomously is organic to religion and cannot be artificially separated from belief. Likewise, government (and law professors) cannot artificially dissect religion into “belief” and “status” components: religion is an organic whole which inherently involves both simultaneously.
Government must sometimes accommodate religion, and under Rosenberger v. University of Virginia this means it must also, at least sometimes, give religion funding when it funds other groups because religion is in part a viewpoint and entitled to the rights of other viewpoints, at least sometimes. But this doesn’t mean government can treat it as nothing more than a viewpoint.
Government can condition providing paid services, such as child care or social work, on following a set of rules and religions can take it or leave it. But it can’t condition giving funds for the purposes of viewpoint promotion on following any such set of rules. The fact that religious activities may sometimes resemble secular ones doesn’t mean purely secular rules apply. As the 7th Circuit noted in Schleicher v. Salvation Army, “The sale of the goods in the thrift shop is a commercial activity, on which the customers pay sales tax. But the selling has a spiritual dimension, and so, likewise, has the supervision of the thrift shops by ministers.” In Schleicher the 7th Circuit held that a minister would have to do something entirely secular for the special autonomy rules for religions not to apply, and a thrift shop isn’t secular enough.
When government gives funds for viewpoint promotion to religions that organize their internal affairs in a government-approved way but not to religions which do not do so, it is establishing religion plain and simple, every bit as much as when it gives funds to religions whose beliefs it approves of but not to religions whose beliefs it doesn’t. That’s what makes religion unique — internal affairs autonomy is an organic part of the freedom of religion protected from government “purposes” by the Establishment Clause, and government funding contingent of internal affairs intrusion is an Establishment Clause violation.
As the First Circuit explained it in Natal v. Christian Missionary Alliance,
This unique constitutional character of religion — the recognition that in matters of religion messenger and message are inextricably and organically bound up and the right to choose one is inseparable from the right to choose the other — makes state and state university efforts to impose rules on religious groups’ choice of messengers uniquely different from rules imposed on anyone else.
December 11, 2009, 2:21 amreadery says:
Note: Following Smith, the 7th Circuit characterizes the “internal affairs exception” as grounded primarily in the Establishment Clause rather than the Free Exercise Clause. Although most cases involve ministers, the right also encompasses the right to autonomy in the selection of members, and this is what is primarily at issue here.
December 11, 2009, 2:34 amSoronel Haetir says:
One thing I would say that argues against limiting group membership is that even worse than a group being taken over by outsiders is a group defining its membership criteria in a closed manner.
December 11, 2009, 6:39 ammikeyes says:
It seems that the issue is not who may join the religious groups, rather it revolves around whether or not the university, using a student tax, will fund such groups. The concern is equitable distribution of these funds.
Religious groups can (I assume) exist in the form of believers only if they don’t accept the money. That is the way all churches in this country function, by raising their own money. So while the state can’t interfere with the inner workings of a church, they don’t have to subsidize it either.
On the other hand, the state will subsidize a church function such as social services as long as the church offers them to all comers.
December 11, 2009, 7:56 amEric Rasmusen says:
I like the constitutional argument in this post a lot better than the one in the older post. Here, it is, I think, “The government has some policies such as tax exemption that benefit religious groups because it has good reasons for it, and likewise it can choose not to aid religious groups in other settings”.
Note, however, that this argument also implies taht it would be constitutional for a university to refuse to fund a student religious group simply for being a religious group, even if it allowed atheist officers. Likewise, it coudl refuse to fund student activist groups, or political groups, or sports groups. That is not unreasonable, but do be aware of the implication.
December 11, 2009, 8:15 amEric Rasmusen says:
I commented that I like the new argument better, and find it valid as a general argument. I should add that it fails in application to the particular cases— Christian groups denied funding for requiring officers to be Christian.
If a university wants to deny funding to religious organizations, fine. If it wants to deny funding to race-based groups, fine. But what universities do is to say they are denying funding to an organization because it fosters religious discrimination, because it requires leaders to support the purpose of the organization. To say you allow religious organizations but to block them for that reason looks like poorly-concealed viewpoint discrimination to me. The fact that universities fund all-black student organizations that foster racial identity— often with that as an explicit purpose– makes it clear that an aim of discouraging discrimination isn’t the real purpose.
If universities really opposed discrimination in general, they’d do their best to impose leadership quotas, denying funding to a black group, for example, if its president wasn’t white in 90% of years. The university would say, “Yes, you formally allow whites to be president, but since we never see it happen, we think you discriminate and we’re going to regulate you.”
December 11, 2009, 8:26 amBZ says:
As with prior posts on this topic, I agree with your central premise, but comment on a specific point: you say: “For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocate[d] by private organizations.”
The general rationale for federal and most state deductibility is “lessening the burdens of government,” not societal enrichment (except perhaps in the loosest sense). See, e.g., Bob Jones University, 461 U.S. 574.
Tax policy does not encourage or discourage a diversity of opinion; it stands apart from substantive discussions altogether. There is an important exception to this rule: a charity may not engage in “propaganda,” which is defined as not providing sufficient information for an objective observer to make up her own mind. That doesn’t go to advocacy enrichment, but perhaps that is what you were referring to?
December 11, 2009, 9:12 amAJK says:
On every campus I’ve seen, the black/Hispanic/Asian etc. affinity groups don’t require members (or leaders) to belong to the group in question, and it sounds like that wouldn’t be permitted here.
December 11, 2009, 9:40 amreadery says:
Bob Jones University is, I think, the best example. Bob Jones held that providing access to education — entry into a university — is a compelling state interest trumping religious rights. “On occasion this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct” — and this was one.
But this does not make the type of extracurricular, student-organized-and-run groups involved here compelling. Access to an education is simply not the same thing, and not on the same level, as access to a particular student group. Indeed, under Rosenberger religious groups’ access to university facilities stems from a right of the student groups, not from any interest of the university, compelling or otherwise.
Nor has a compelling-interest argument even been made. Professor Volokh had argued previously that any religious freedom involved here from previous precedents don’t apply because of Smith. But all circuits to decide the question have said religious internal-affairs freedoms survive Smith, and several have said this is because they are grounded in the Establishment Clause, not or at least not solely in the Free Exercise Clause.
The compelling-interest standard recognized in Bob Jones remains the law.
December 11, 2009, 9:58 ammikeyes says:
None of the groups mentioned are churches, per se, but are common interest groups that are seeking university funding. I assume that the common interest in the case of the Christian Legal Society has something to do with Christianity (and something legal, perhaps law school) but which branch? The Church of God, Cleveland, TN? Any of 52 branches of the Mennonites? The Greek Orthodox Church? Catholics?** These various churches are not exactly on the same page when it comes to the teachings of Christ.
What does the charter of this or other similar group say? Are they churches in the IRS definition of a church ? How are they either exempt or subject to special consideration under the Establishment Clause if they are not churches as opposed to philosophical societies that have a relationship to some branch of some religion or organizations like the Masons that have a faith based philosophy that is not rooted in a specific religion?
**
All members and employees of the CLS have to sign a pledge to support the CLS statement of faith. I’m not sure that all Christian churches will sign on to every part of this pledge. This pledge seems to be the heart of the dispute:
All officers, directors, members, advisory council members, and staff of CLS shall, as a condition of their employment or membership in CLS, acknowledge in writing their acceptance of, and agreement with the following Statement of Faith, as set forth in Article II, Section 1 of CLS’ corporate by-laws, as amended
Trusting in Jesus Christ as my Savior, I believe in:
One God, eternally existent in three persons, Father, Son and Holy Spirit.
God the Father Almighty, Maker of heaven and earth.
The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
The presence and power of the Holy Spirit in the work of regeneration.
The Bible as the inspired Word of God.
December 11, 2009, 11:02 amADF Alliance Alert » Why no-discrimination-based-on-religion conditions for government benefits aren’t viewpoint-discriminatory says:
[...] Volokh writing at The Volokh Conspiracy: “As I argued in my law review article on the freedom of expressive association and [...]
December 11, 2009, 12:37 pmPer Son says:
What is the big deal? At my law school the groups had to be open to all students (including leadership positions). It appears this is the case here as well. You want money – open it up to everyone. CLS wants to have their cake and eat it too. They want Caeser’s cash, but don’t want to abide by Caeser’s facially neutral rules.
I see a 9 – 0 decision coming our way (perhaps Thomas dissents so 8 – 1).
December 11, 2009, 12:38 pmKen Arromdee says:
If the group claims anyone can join but everyone who joins is one race, and the university was really serious about groups not discriminating, they’d say “we think you are lying, because the makeup of your group doesn’t match with your claims about it” and would then conclude that the group discriminates even though they claim not to.
December 11, 2009, 3:46 pmFriday round-up: afternoon edition | SCOTUSblog says:
[...] at The Volokh Conspiracy, Eugene Volokh discusses Christian Legal Society v. Martinez, granted on Monday, and defends its [...]
December 11, 2009, 4:07 pmPer Son says:
Ken Arromdee:
If a group takes action to be racially homogenous then they should get their funding stripped, just like a group that requires officers or members to be a particular religion.
That is different then white people (or pick your race) simply not joining a black student group, which your post seems to characterize is discriminatory.
December 11, 2009, 4:23 pmTweets that mention The Volokh Conspiracy » Blog Archive » The “Purpose of the Program” Argument and Christian Legal Society v. Martinez -- Topsy.com says:
[...] This post was mentioned on Twitter by Sara Beachy, Eugene Volokh. Eugene Volokh said: The “Purpose of the Program” Argument and Christian Legal Society v. Martinez: One more item about the Christia.. http://bit.ly/5074Q4 [...]
December 12, 2009, 8:59 amTim says:
Professor Volokh,
Given your long history of strong advocacy protecting first amendment rights, I am quite disappointed to see your arguments that this case should go the way of the government. I think that the arguments for the government are strong in certain areas, but if they were allowed to prevail, the consequences could be dire for other, unrelated first amendment litigants later.
I really hope you rethink your position on this issue. Freedom of association is just part of the fight for free speech on campus.
I do not think that it’s a good thing that we have a student organization at nearly every law school that excludes fornicators and homosexuals from its membership, but I’d much rather have that than no right to expressive association at all, especially because it is viewpoints like ours (basically anything that isn’t some strong flavor of progressivism or unapologetic Marxism) that stand to lose the most.
I haven’t the time to make a stronger case, but I sincerely hope you’ll reconsider this issue. You are a prominent and famous authoritative voice on first amendment issues, and we need your help.
December 13, 2009, 11:02 pmSupreme Court: Christian Legal Society v. Martinez | La Flog says:
[...] The Purpose of the Program Argument and Christian Legal Society v Martinez [...]
June 29, 2010, 4:34 pm