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I agree with Marci that the precedental force
of Lukumi has taken a
serious hit. But I don't think it's quite as severe as she suggests.
For one thing, it seems clear that Lukumi would continue to prohibit
religious discrimination, even absent proof of animus or hostility, where
the state imposes criminal or civil sanctions (see p.6), i.e., where there is a
"substantial" burden on religious exercise. And, even in the context of
benefits, the Court goes to great pains to leave open the possibility of a
"presumptive" free exercise violation where the state interest is not as
"historic and substantial" as the interest in avoiding the subsidization of
clergy. The sentence in the final paragraph is significant: "The State's interest in not funding
the pursuit of devotional degrees is substantial and the
exclusion of such funding places a relatively minor burden
on Promise Scholars." Where the interest is less
substantial, or the burden less "minor," who knows?
Nevertheless, it is hard to deny that, in the benefits context (including, e.g., cases involving primary- and secondary-school vouchers), it's now going to be awfully difficult for plaintiffs to convince lower courts to invalidate religious exclusions. Lukumi is of weakened, and uncertain, force. The Rosenberger trump card is virtually a dead letter outside of some narrow, fora-like contexts in which the purpose of the program is to encourage a diversity of private viewpoints. McDaniel v. Paty apparently is limited to denials of the right to participate "in the political affairs of the community." And, just as the state has an "historic" and "substantial" interest in not subsidizing the ministry, presumably it has an equally historic and substantial interest in not subsidizing prayer, or the teaching and propagation of particular religious truths, such as the religious instruction that occurs in many sectarian schools. Offhand, I see only two possible lines of argument
that might be fruitful.
The first will apply only in very limited
circumstances. Many so-called "baby Blaine" amendments, including one in
Washington, prohibit funds from ever being subject to "sectarian control or
influence," without regard to what is actually being subsidized. It's
possible that some states would construe such a provision to prohibit funds from
being used in institutions run by sectarian organizations, even where
the funded program is wholly secular. In such a case, the exclusion would
be triggered not by the religious nature of the activity that is funded, but
instead by the religious nature, or affiliation, of the recipient. In
my view, this will usually be a form of unconstitutional condition, punishing
folks not for what they do (or for what the dollars subsidize), but for the
religious choices and affiliations they have made. (This is the argument
Judge Fernandez made, albeit unsuccessfully, in Gentala, 244 F.3d at
1082-86.)
Second, perhaps the basic unconstitutional
conditions argument might still have some force in the context of, e.g., school
vouchers. Assume, for instance, that a student chooses to attend a
sectarian school, but the state does not permit a voucher to be used at that
school because it (legitimately) does not wish to subsidize instruction as to
religious truths. The student, however, is willing to pay for the
religious classes with her own funds, and to use the voucher only for the
secular classes. The state does not permit this, because money is
fungible. The student in that case could argue that the restriction not
only prevents state subsidy of religious instruction, but also punishes her for
attending religious classes with use of her own money. In Davey,
the Court rejected that argument because Washington permitted Davey, at least in
theory, to attend two colleges and use the scholarship only at the school where
he was not majoring in divinity studies. At the primary and secondary
school level, surely that is unrealistic -- no student will be able to attend
two schools. Therefore, the religious exclusion might, in such a
case, "require students to choose between their religious beliefs and receiving
a government benefit" (p.7).
Even if this argument has some force, it seems
clear that the state could require quite severe segregation as a means
of ensuring that its funds do not subsidize religious classes. In
Rust, for example, the state was permitted to insist that a recipient
set up a completely segregated, alternative clinic in which it could discuss
abortion. Presumably, then, a state could require, at the very least, that
a sectarian school teach its religious classes only after the completion of the
"secular" school day, using faculty and administrators unconnected with the
secular program. Of course, few sectarian schools would agree to such a
condition, just as few if any title X recipients in Rust would have the
wherewithal or desire to set up a separate abortion-speech clinic -- and just as
no divinity majors in Washington are about to attend two schools in order to
receive a Promise Scholarship. But in cases where the state does not even
offer this unpalatable choice, the plaintiff might have a plausible
unconstitutional conditions claim.
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