Chicago Unbound

Title

Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause

Authors

Michael W. McConnellFollow

Publication Date

1989

Publication Title

San Diego Law Review

Abstract

One great advantage of a general theory of unconstitutional conditions is that it makes it more difficult for courts to disguise their antipathy or indifference toward the exercise of particular constitutional rights by manipulating undefined notions of "coercion" and "subsidy." The Supreme Court has held that the government may not deny benefits to a person who is out of work for religious reasons;¹ but it may deny benefits to those who lose work because of pregnancy ² or participation in a labor dispute.³ It has held that government subsidies may (and in some instances must) be denied to corporations or organizations because they engage in lobbying ⁴ or religious activity,⁵ or did not receive enough votes in a recent election,⁶ but may not be denied on the ground that a potential recipient engages in political editorializing ⁷ or publishes a magazine of "general interest" rather than a religious, professional, trade, or sports journal.⁸ Presumably, some such selective funding schemes are constitutional and some are not. But it is not legitimate to distinguish between them by mere assertions that some are instances of "penalties" or "coercion" while others are simply refusals to extend "benefits" or "subsidies." A general theory of unconstitutional conditions forces courts and commentators to explain why they respond in different ways to similar burdens on different rights.⁹

In this essay I will contend that the courts' treatment of funding of religious and secular institutions conflicts with the analysis of government funding schemes almost universally accepted in other contexts. In doing so, I will accept what has emerged as common ground across the ideological spectrum: that the crude distinction between penalties and subsidies now employed in constitutional law is misleading and will not work. My thesis is that the Supreme Court's test for an establishment of religion, set forth in Lemon v. Kurtzman,¹⁰ relies squarely on this crude and misleading distinction and must therefore be rejected or reinterpreted.¹¹

I begin with a restatement of the core of the unconstitutional conditions consensus. This does not purport to be a comprehensive analysis of unconstitutional conditions, for it leaves unanswered a number of questions that are vital to resolving some unconstitutional conditions problems. In particular, I will not deal with the question of government justification, which often turns on the "germaneness" of the condition to the benefit.¹² I can avoid this question because the only justification for refusal to fund religious institutions qua religious institutions is the Court's mistaken conception of "subsidies." Nor will I deal with the distinction between "bribes" and "threats."¹³ Though relevant to some constitutional prohibitions, this distinction is not relevant to the religion clauses because they prohibit "bribes" (establishments) no less than "threats" (free exercise violations). To demonstrate the unsoundness of the Court's religious "aid" cases, all that is necessary is the basic core of the unconstitutional conditions doctrine.

Recommended Citation

Michael W. McConnell, "Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause ," 26 San Diego Law Review 255 (1989).