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THE NEW RELIGION AND THE CONSTITUTION

Kathleen M. Sullivan ?

With her unerring sense for important topics, her characteristic optimism

and decency, and her capacious instinct for bridge-building

across what others might see as unleapable chasms or divides, Martha

Minow depicts in her article a world in which social services may be

devolved from government to private providers without too great a

loss of public values. She includes religious organizations among the

private providers that may participate in joint public-private ventures

to educate children, rehabilitate substance abusers, and furnish health

care to the poor. And she would hold these partnerships to such public

values as “individual freedom of belief and expression,

. . . opportunities for fair hearings by impartial decisionmakers, and

freedom from exclusion or inferior treatment on the basis of race, national

origin, ethnicity, language, gender, disability, religion, and, increasingly,

sexual orientation.” 1

Under prevailing conceptions of freedom of speech, association, and

religious practice, however, such public conditions could not be imposed

upon religious associations by regulatory fiat. May government

use contracts and vouchers to bribe religious entities into a docility

and public-mindedness it may not compel through fines and prohibitions?

That is the tension at the heart of this Commentary. 2

Many religious organizations would hardly espouse such public

values voluntarily if left to their own devices. Religions, like other

private associations, are often biased, intolerant, exclusionary, zealous,

and insular, comprising at best “partial publics” 3 — partial in both

senses of the word, universal in neither scope nor values. What would

it mean to infuse such entities with public values? Does Minow's proposal

require that, as the price of entering into government contracts

or accepting public subsidies, the Catholic Church must admit women

as priests? That Jewish schools must offer admission to Islamic fundamentalist

students? That the Church of Jesus Christ of Latter-Day

Saints may not expel contemporary polygamists as heretics without a

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? Dean and Richard E. Lang Professor of Law and Stanley Morrison Professor of Law, Stanford

Law School . The author thanks Roberto J. Gonzalez for indispensable research assistance.

1 Martha Minow, Public and Private Partnerships: Accounting for the New Religion , 116

H ARV . L. R EV . 1229, 1261 (2003).

2 Participation in public-private ventures by for-profit associations is beyond the scope of this

Comment, and that of nonreligious private associations will be discussed only by analogy.

3 N ANCY L. R OSENBLUM , M EMBERSHIP AND M ORALS : T HE P ERSONAL U SES OF

P LURALISM IN A MERICA 43 (1998).

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1398 HARVARD LAW REVIEW [Vol. 116:1397

full panoply of procedural protections? Imposition of such conditions

by law would violate basic conceptions of religious autonomy long

shielded by the Free Exercise Clause. 4 What would the world of private

religious association look like if such conditions were introduced

through the inducement of public funding instead? Where is the tipping

point at which a religious entity ceases to be normatively or epistemically

distinct and joins a secular common ground that obscures its

reason for associational autonomy in the first place?

The Supreme Court did not settle such questions in its decision last

Term in Zelman v. Simmons-Harris , 5 which upheld against Establishment

Clause challenge an Ohio program permitting parents to redeem

publicly funded education vouchers at pervasively and unabashedly

sectarian religious schools. 6 To be sure, Zelman provides constitutional

leeway for part of Minow's proposal by holding that government may

provide at least some kinds of public subsidies to religious organizations

whose faiths it may not proclaim or endorse outright. But the

decision emphasized that Cleveland 's program involved the “genuine”

or “independent” private choices of individuals that acted as an intervening

cause or “circuit breaker” between church and state. 7 Zelman

thus does not bless all forms of public-private partnerships on Minow's

helpful “continuum of relationships between government and

private groups.” 8 Direct contractual intertwinement between government

and religious providers might well be found unconstitutional after

Zelman as it was before. 9

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4 To be sure, the Supreme Court has curtailed the scope under the Free Exercise Clause of

religious exemptions from facially neutral, generally applicable laws. See Employment Div. v.

Smith, 494 U.S. 872, 890 (1990) (upholding against free exercise challenge, on mere rational basis

review, the denial of unemployment benefits to Native Americans who used peyote in violation of

the state's general criminal laws). But Smith did not overrule earlier decisions protecting the

autonomy of church organizations over their internal affairs, see infra notes Error! Bookmark

not defined.–Error! Bookmark not defined., nor is it clear that even the author of Smith

would lightly consider it permissible under the Free Exercise Clause to enforce antidiscrimination

laws so as to require churches to violate their own theologies. Cf. Tex. Monthly, Inc. v. Bullock,

489 U.S. 1, 42 (1989) (Scalia, J., dissenting) (arguing that a sales tax exemption for Bibles and

other sacred books, held by the Court to violate the Establishment Clause, rather “comes so close

to being a constitutionally required accommodation, there is no doubt that it is at least a permissible

one”).

5 122 S. Ct. 2460 (2002).

6 Id. at 2473.

7 See id. at 2467 (reasoning that where “parents [are] the ones to select a religious school as

the best learning environment for their . . . child, the circuit between government and religion [is]

broken, and the Establishment Clause [is] not implicated”).

8 Minow, supra note 1, at 1255.

9 Compare Freedom from Religion Found., Inc. v. McCallum, 179 F. Supp. 2d 950, 982 (W.D.

Wis. 2002) (holding that Wisconsin 's direct funding of Faith Works, a faith-based alcohol and

drug treatment program, violates the Establishment Clause), with Freedom from Religion Found.,

Inc. v. McCallum, 214 F. Supp. 2d 905, 920 (W.D. Wis. 2002) (upholding a voucher-like arrang e S ULLIVAN

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2003] THE NEW RELIGION AND THE CONSTITUTION 1399

True too, the Cleveland voucher plan upheld in Zelman exemplifies

Minow's approach as a matter of policy. Minow argues that religious

recipients of public subsidies should be bound by strong public norms

of accountability and nondiscrimination. The Cleveland plan, in keeping

with such an approach, permitted public funds to be transferred to

religious schools only with public strings attached: “Participating private

schools must agree not to discriminate on the basis of race, religion,

or ethnic background, or to ‘advocate or foster unlawful behavior

or teach hatred of any person or group on the basis of race, ethnicity,

national origin, or religion.'” 10 But Zelman did not reach the question

whether such conditions on funding were either required by the Establishment

Clause or forbidden by the Free Exercise or Free Speech

Clauses. 11 Nor did it reach the question of the permissible scope of

such conditions, or whether the leverage thus obtained for public values

over religious education might extend also to other activities by a

beneficiary church. And it did not reach any judgment about the longterm

political effects of conditioned public aid to religious schools; as

the dissenters in Zelman ominously cautioned, 12 such conditions themselves

might well occasion future intersectarian contests and religious

divisiveness. Zelman thus leaves Minow's approach open to continued

political and constitutional scrutiny.

In considering Minow's proposal in light of these concerns, this

Commentary begins by recapping briefly the role of private associations,

including religious associations, in American political life. See

Part I below. It then lays out a taxonomy of four possible understandings

of the general relationship of religious associations to government,

each drawing on different joint interpretations of the two Religion

Clauses. See Part II below. Finally, it relates Minow's proposal to

that taxonomy, and considers how Minow's proposal of governmentreligious

partnerships with public strings attached compares with two

possible alternative policies: a decision to forego such joint ventures

altogether in favor of strict separation of public services and religion,

or a decision to embrace such joint ventures but without public strings

attached. See Part III below.

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ment whereby the Wisconsin Department of Corrections would refer offenders to Faith Works

and pay per offender).

10 Zelman , 122 S. Ct. at 2463 (quoting O HIO R EV . C ODE A NN . § 3313.976(A)(6) (Baldwin

1999 & Supp. 2002)).

11 For review of possible post- Zelman constitutional issues surrounding conditions on religious

providers in voucher-financed programs, see Ira C. Lupu & Robert W. Tuttle, Zelman 's Future:

Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles (unpublished manuscript,

on file with the Harvard Law School Library), available at http://www.religionand

socialpolicy.org/docs/legal/reports/10-21-2002_gwu_zelmans_future.pdf (last visited Feb. 3, 2003).

12 See Zelman , 122 S. Ct. at 2501–02 (Souter, J., dissenting); id. at 2505–08 (Breyer, J., dissenting).