Freedom of expressive association and government subsidies.

• Author: Volokh, Eugene
• Position: Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor

INTRODUCTION I. THE NO DUTY TO SUBSIDIZE PRINCIPLE II. THE NO GOVERNMENTAL VIEWPOINT DISCRIMINATION / NO GOVERNMENTAL RELIGIOUS DISCRIMINATION PRINCIPLES A. Content Neutrality B. Disparate Impact C. Discriminatory Intent? D. Enactment Being Based on, and Expressing, the Viewpoint of Its Authors E. Magnitude of Burden F. The No Governmental Religious Discrimination Principle III. A NEW PRINCIPLE OF NO GOVERNMENTAL DISCRIMINATION BASED ON EXPRESSIVE ASSOCIATION DECISIONS A. The Line and Which Side Expressive Association Should Fall On B. The Lack of an Accepted Theoretical Explanation for the Line C. Permissible Discrimination Against Certain Associational Decisions IV. ANTIDISCRIMINATION RULES AND RESTRICTIONS ON WHAT GROUPS DO WITH THEIR OWN MONEY V. THE ESTABLISHMENT CLAUSE AND NONDISCRIMINATION CONDITIONS A. Preeminent Purpose B. Primary Effect C. Excessive Entanglement VI. RELIGIOUS EXEMPTIONS AND GOVERNMENT SUBSIDIES A. Scope--Who May Ask for Religious Accommodation? B. Substantial Burden--Does Not Subsidizing Religiously Motivated Discrimination Qualify? C. Justification--Is There a Compelling Interest in Not Funding Discrimination Groups? D. Statutory Protections vs. Constitutional Protections CONCLUSION: NO DUTY TO SUBSIDIZE, REVISITED INTRODUCTION

The government provides vast subsidies to expressive associations. Universities and cities let groups use government property. Universities fund student groups' meetings and publications. The federal and state governments provide tax exemptions, which are tantamount to a matching grant. (1) Many of these programs are available to a broad range of groups that meet certain objective criteria (e.g., student groups, nonprofit groups, and veterans' groups).

May the government limit these programs to groups that don't discriminate based on religion, sexual orientation, sex, race, ethnicity, and similar factors? (2) Such discrimination is often a constitutional right--a right that's one of Chief Justice Rehnquist's and Justice O'Connor's important contributions to First Amendment jurisprudence. (3) And many groups exercise this right.

The Boy Scouts discriminate against the irreligious and against practicing homosexuals. Some religious student groups discriminate against members of other religions, and sometimes against practicing homosexuals. The Catholic Church discriminates based on sex in selecting its clergy, (4) and of course based on religion. (5) Orthodox Jewish synagogues discriminate based on ethnicity, not just religion, in choosing rabbis and members. (6) Meetings organized by the Nation of Islam sometimes exclude attendees based on race and sex. (7) Some religious schools discriminate based on religion in selecting students, at least in the sense that they will choose only those students who are willing to participate in the religion's devotional activities. (8) May all these groups be constitutionally excluded from generally available benefit programs, because they exercise this constitutional right to discriminate?

This Article will try to answer this question. Part I will discuss what I call the No Duty To Subsidize Principle, to which Chief Justice Rehnquist and (to a lesser degree) Justice O'Connor have contributed much: (9) the principle that the government generally need not subsidize the exercise of constitutional rights. Groups have the constitutional right to put on events and programs open only to blacks, heterosexuals, men, or religious believers; they may also put on programs open to all listeners but designed by group officers who are chosen in discriminatory ways. Yet the government need not subsidize this right, just as the government need not subsidize the rights to abortion, private schooling, or political expression about candidates or about legislation. (10)

In Part II, I'll discuss the chief exceptions to the No Duty To Subsidize Principle. Under what I call the No Governmental Viewpoint Discrimination Principle, the government may not discriminate among speakers based on viewpoint, at least when it subsidizes a broad range of private speakers that are expressing their own views. Under the No Governmental Religious Discrimination Principle, the government may not exclude religious conduct from subsidy programs when it subsidizes equivalent secular conduct. Both principles mean that sometimes the government indeed must subsidize behavior with which it disagrees, at least if it subsidizes other behavior that differs only in its viewpoint or religiosity.

But, as I'll explain, these exceptions do not stop the government from imposing antidiscrimination conditions on its subsidies. Such conditions are religion-neutral, viewpoint-neutral, and generally even content-neutral, at least if they're applied evenhandedly to all participating groups.

So exclusion based on a group's exercise of its expressive association rights is not barred by the No Governmental Viewpoint Discrimination exception. But, some may argue, perhaps courts should develop an analogous exception barring the government from discriminating based on a group's expressive association decisions.

In Part III, I'll discuss this argument. It's a hard argument to analyze, because the Court has never offered a theoretical explanation for the limits on the No Duty To Subsidize Principle.

Why are exclusions based on the viewpoint of speech or on religiosity different from exclusions based on the content of speech, on the exercise of abortion rights, and on the exercise of private schooling rights? The Court has never squarely explained this. But I'll suggest that the Court has already implicitly rejected this exception--it has recognized that excluding groups for their expressive association decisions should generally not be treated the same as excluding groups for their viewpoint. And a retreat from this position would likely be both unwise and improbable.

In Part IV, I'll discuss the No Penalizing Privately Funded Behavior Principle: the principle that the government may not deny benefits to people simply because they've exercised (or are planning to exercise) a right using their own funds. The government may deny medical funding for abortions, but may not deny welfare benefits to women who have had abortions. The government may decline to subsidize editorializing by public broadcasters, but may not condition subsidies to public broadcasters on the broadcasters' promise not to editorialize even with their own money.

This, I'll suggest, is one possible argument for some constitutional limits on the government's attaching antidiscrimination conditions to its funding. A group may not be denied benefits simply because it has chosen to (for instance) organize male-only, Christian-only, or black-only events using its own money. One can also argue--though in my view this is a losing argument--that a group may not be denied benefits simply because its officers are chosen in discriminatory ways. But the group may still be denied benefits for those particular events that are limited to participants (whether members, listeners, or others) based on race, sexual orientation, religion, sex, or ethnicity.

In Parts V and VI, I'll switch to arguments that are specific to religious groups. In Part V, I'll discuss whether the Establishment Clause bars the government from applying broad "no subsidy if you discriminate" conditions to churches that discriminate in choice of clergy. My view is that the Clause might limit the government's attempts to delve into contested claims about whether a church really does discriminate, but does not bar the government from applying the condition to churches that admit that they do discriminate.

In Part VI, I'll ask whether some discriminating groups may have statutory rights to exemption from subsidy conditions, under the state or federal Religious Freedom Restoration Acts (RFRAs) (or, in some states, state constitutional rights under state religious freedom clauses). (11) It turns out that denial of a benefit may indeed sometimes constitute a "substantial burden" under the RFRAs. Objecting groups may thus sometimes be entitled to retain the subsidy and yet be exempted from an antidiscrimination condition that violates their religious principles. The matter, though, is far from clear, because the RFRA case law on subsidies is so ambiguous.

Finally, in the Conclusion, I'll speculate that the likely practical consequences of denial of government benefits are not going to be terribly dire for discriminating groups. First, these groups will often win subsidies through the political process, as legislators conclude that at least certain forms of discrimination ought not disqualify groups from participating in subsidies. Second, even if the groups end up stripped of their tax exemptions (the most valuable subsidy that's at stake), they will be no worse off than lobbying or electioneering organizations, many of which thrive despite their lack of tax-exempt status. And I'll also suggest that this fits well with Chief Justice Rehnquist's (and, to a large extent, Justice O'Connor's) conservative jurisprudence, under which even constitutionally protected activities are not freed from pressures that may be imposed by government funding decisions.

1. THE NO DUTY TO SUBSIDIZE PRINCIPLE

   The government need not subsidize the exercise of constitutional rights, even when it subsidizes other analogous behavior. The government need not fund private schooling, even if it funds public schooling. (12) Public hospitals need not perform abortions, even if they perform many other medical procedures, including childbirth. (13) Government medical aid programs need not subsidize abortions. (14) The government need not fund advocacy of abortion, even if it funds advocacy of other options for pregnant women. (15)

   The government generally need not open its property (except traditional public fora) for all speakers, even when it opens it for some speakers. (16) The government need...