Legal Commentary

The ?Purpose of the Program? Argument and Christian Legal Society v. Martinez

By Eugene Volokh

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, rather than for preservation of life or prevention of serious injury), but choose to exclude abortions. There?s no need for a very strong, overriding reason for that exclusion, either, because the government can choose to try to serve two interests at once ? helping people get medical procedures while making sure that taxpayer money (or taxpayer-purchased property) isn?t used for performing abortions.

Likewise, it seems to me that universities are entitled to provide a subsidy in order to broaden the spectrum of viewpoints advocated on campus by private organizations, while at the same time ensuring that the subsidy ends up benefiting students without regard to race, religion, sexual orientation, and the like (and not just in the aggregate but for each particular group). I think that?s an unwise decision, partly because the second interest does in some measure undermine the first. But it seems to me quite constitutional.

And the answer to what government interest is served here is the same as that given by President Kennedy in supporting Title VI of the Civil Rights Act: That money gathered from taxpayers (or students) without regard to race and the like is to be distributed only to groups that admit all students without regard to race and the like. That interest is legitimate, and therefore constitutionally sufficient when it comes to choosing which groups get government funding, even if I think that elevating it over rival interests is unwise in this context.

Full post as published by The Volokh Conspiracy on December 11, 2009 (boomark / email).