Is Abortion Still Legal in America?

Are Private Schools Still Legal in America? Is Promoting Legislation Still Legal in America?

I'd think the answer to all these questions would be "yes," even though the government generally declines to support these endeavors (and even though the government generally supports some similar or even rival endeavors, such as childbirth, public schooling, and speech on other issues). Many states ban the use of state funds or state facilities for abortion. The federal government provides a charitable tax exemption for contributions towards a wide range of advocacy — an exemption that is economically equivalent to a form of matching-grant subsidy — but excludes the express promotion of (or opposition to) candidates or legislative proposals. All these provisions are constitutional, and hardly raise the question "Is [X] Still Legal in America?" If anything, it's been conservatives (on the Court and among the public) that have generally argued that failing to subsidize behavior — even constitutionally protected behavior — is far removed from banning it.

Yet the rather conservative Washington Examiner runs the headline "Is Christianity still legal in America?" for a column that faults a public university for mandating that groups (including religious groups) not discriminate based on sexual orientation in choice of officers. I've written about why I think these policies are generally constitutional (though in my view often unwise), partly by analogy to the funding choices I described at the start of this post. The matter is made complex by the fact that sometimes the Court has held that the government must fund constitutionally protected behavior that it disapproves of; for instance, the government may not discriminate based on speakers' viewpoints in operating a broadly available funding program. I discuss that in my article, in more detail than you'll likely want, and come to the conclusion that exclusion of groups based on their expressive association choices doesn't fit within that relatively narrow exception to the "government need not fund behavior it dislikes rule."

But complex as the constitutional matter might be, one thing is simple: Government rules that all groups that get government benefits comply with certain restrictions — even restrictions that end up bearing especially hard on some Christian groups — aren't even close to making Christianity illegal; instead, it's a lot closer to the government's choosing which behavior (childbirth but not abortion, public schooling but not private schooling, much speech but not electioneering or lobbying) to support using its money and access to its property.

UPDATE: Silly screw-up in characterization of the lower court decision corrected (thanks to reader Jeremy Richey for alerting me to this) -- sorry about that; the substantive point remains the same.

Per Son:
You see, the answer to all of this is simple. This is some conservatives attempts at scaring the masses without any sort of proof or logic backing them up.

On the left, Cameron Diaz did the same thing on Oprah, when she said a Bush presidency will lead to rape being legal.

yeesh, I can't stand Bush, but come on!
8.18.2006 11:52am
Are you suggesting somehow that stem cell research is still legal in American even though Bush vetoed the funding of it? That's preposterous.
8.18.2006 11:57am
NickM (mail) (www):
IIRC the Washington Examiner is not a regular newspaper, but a Human Events wanna-be, which is widely distributed for free at conservative political gatherings.

The Seventh Circuit decision, and the underlying university policy, go beyond funding into the area of any access to university facilities, and in many cases these policies were ruled by universities to apply to already-existing groups, so I question how strong the funding analogy is.

8.18.2006 12:09pm
As a matter of law, I won't argue with you. But as a pragmatic matter, your general point about government funding for certain behavior can lead to problems for religiously-affiliated universities. (This case concerns a religious group at a public university, so it's no where near an exact parallel with the problems that I foresee. But the final paragraph of you post makes a more general point.)

As a practical matter, government has intervened so substatially in the funding of higher education that it has completely skewed the field. Colleges and universities, with almost no exceptions, now have to rely on all sorts of government expenditures in order to compete. In fact, in order to stay afloat. I wonder if a religious denomination can really be said to have the right to free practice if it faces the choice of giving up the enforcement of a point of doctrine or shutting its doors.

As an example, if the federal government can choose to spend or not spend on higher education based on the social outcomes that it want to see, can it then insist that an Evangelical college allow homosexual faculty? If not, why not, based on the above post?

On the other hand, of one wants to say that the colege has a choice, but that if it wants to take government money it must follow the government's rules, then we are moving toward a time when the distinctive nature of a religious university cannot be maintained.

Government money--as student loans, Pell Grants, Rotc scholarhips--has driven the price of college tuition up exponentially since I was an undergrad. What chance does a college have in competition for students if this sort of aid is not available to a potential undergraduate at Generic Baptist College, but is available to the same student should he choose Secular U across town?

It would be like the federal government saying that church busses can't drive on the interstate highway system: The federal government has changed the institution of higher ed. so drastically that it has left no other choice. There are no non-governmental freeways, and there are (almost) no colleges that can survive without government money.
8.18.2006 12:19pm
Richard Bellamy (mail):
The really surprising thing about this article is that it somehow restrains itself from using the phrase "activist judges" to describe judges that DON'T overrule the actions of the University.
8.18.2006 12:24pm
JR (mail) (www):
Eugene's post contains errors. The Washington Examiner article he links to doesn't fault the Seventh Circuit; it agrees with it. Also, the Seventh Circuit ruled against the university.
8.18.2006 12:31pm
Thorley Winston (mail) (www):
Are you suggesting somehow that stem cell research is still legal in American even though Bush vetoed the funding of it? That's preposterous.

Indeed. Next thing you know we'll be hearing that same sex relationships are still legal even though they aren't endorsed by the government by receiving the privileges and benefits reserved for marriages.
8.18.2006 12:34pm
Cornellian (mail):
Indeed. Next thing you know we'll be hearing that same sex relationships are still legal even though they aren't endorsed by the government by receiving the privileges and benefits reserved for marriages.

Heck, you might even hear that granting such privileges and benefits would somehow be a threat to heterosexual marriage, which needs to be "defended" against such a grant.
8.18.2006 12:49pm
NDJD2001 (mail):
The Seventh Circuit ruled in favor of the Christian Legal Society's right to remain an officially recognized student group while prohibiting openly active homosexuals and other people who violated christianity's code of sexual conduct (e.g., adulterers and fornicators) from being voting members or leaders in the group. The decision relied on Dale and Hurley regarding freedom of expressive association and Rosenberger on free speech and public forum analysis. This case was NOT a funding case. It definitely wouldn't have made christianity illegal if it had gone the other way, but it would have made enforcing/encouraging traditional notions of christian sexual morality disfavored in this context. Quin Hillyer was using scare tactics to draw attention to the case. Typical behavior for most partisan writers, and even some of the bloggers here at the VC.
8.18.2006 12:56pm
Eugene Volokh (www):
JR, NDJD2001: D'oh -- corrected the error; the substantive points remain.

NDJD2001: The case is a case about excluding student groups that discriminate based on attributes from access to university-owned facilities (just as some of the abortion cases are about barring abortions at government-owned facilities). The "funding" comes in access to valuable university property, rather than (as in Rosenberger, for instance) university money, but the analysis strikes me as the same.
8.18.2006 1:02pm
ctw (mail):
"Quin Hillyer was using scare tactics to draw attention to the case."

or to make the article more appealing to those who don't really want to understand the issues but are always on the lookout for opportunities for ignorant one-liners (see above for examples).

the headline is ridiculous, the first paragraph is the obligatory snark against the courts, the bulk appears to be a decent summary of the issues (haven't read the opinion, so don't know if this assumption is correct), the penultimate paragraph returns to snark mode, and the last sentence is just the author's highly debatable opinion that bigotry is OK as long as it's wrapped in piety.

obviously, few prospective readers would be interested in the legal substance, but the rest will no doubt attract a lot of flies.
8.18.2006 1:31pm
"Are you suggesting somehow that stem cell research is still legal in American even though Bush vetoed the funding of it? That's preposterous."

JRL - are you suggesting that stem cell research is not legal? Can anyone be arrested for perfomring such research? Most of my daily activities are not funded by the federal government, but I have been able to avoid arrest.

Also, out here in CA, we just voted to saddle ourselves with a huge amount of debt to fund this research.
8.18.2006 3:30pm
markm (mail):
Mike99: I think JRL just forgot the (sarcasm) tags. But it's hard to be sure...
8.18.2006 3:49pm
Tim Reineke:
From my experience, universities usually have lots of extra room, so that isn't a major issue...

Even if it was, though - the basic principles still apply that a government-sponsored organization cannot discriminate against religious organizations solely because of their sincerely held religious beliefs. And that's what the university is doing here, plain and simple.
8.19.2006 4:22am