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, […]