“On Free Association, the Court Makes the Right Call”

That’s the title of an online op-ed I have today at the New York Daily News. The opening paragraphs:

We have many constitutional rights. But we generally aren’t constitutionally entitled to get subsidies for those rights. The right to privately educate our children doesn’t equal a right to government funding for private schools. The right to abortion doesn’t obligate the government to allow abortions in county hospitals. The right to urge voters to elect a candidate doesn’t entitle tax-exempt nonprofits to use tax-deductible (and thus subsidized) contributions to engage in such speech.

This is why the Supreme Court’s decision Monday in Christian Legal Society v. Martinez is right. The majority opinion was written by Justice Ruth Bader Ginsburg and joined by her fellow liberals, and by moderate conservative Justice Anthony Kennedy. Being a moderate conservative myself, I rarely agree with the liberal Justices, especially when they reject First Amendment claims. But here they and Justice Kennedy are correct.

Note that I generally don’t focus on the procedural complexities of this particular case (which is why I didn’t focus on the possibility of further litigation in the lower court about whether the take-all-comers policy was pretextual); I assume that readers are more interested in the broader question of which such policies are constitutionally valid. You can also read the opinions, and my 2006 Stanford Law Review Article on the subject.