I much appreciate Allen Asch's input on
this. I should say that a ban on charitable contributions from
disability checks would probably be constitutional. But the question on
this thread, I think, is whether it's constitutional to ban *only religious
contributions* (or only payments for informal religious education), while still
allowing nonreligious contributions.
Eugene
-----Original Message-----
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Sent: Tuesday, May 03, 2005 3:46 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Locke v. Davey follow-up
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, May 03, 2005 3:46 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Locke v. Davey follow-up
In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL PROTECTED] writes:
The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass.
I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81&threadid=7115&STARTPAGE=3
While the apartment manager's prohibition of Bible study classes held in section 8 housing seems to me vulnerable to several successful constitutional challenges, the state of Oklahoma's purported prohibition of tithing by someone getting a disability check as their sole source of income seems much more constitutionally tenable (however wrong as a legislative choice). As a point of comparison, as a public defender, I represented welfare recipients subject to similar coercive pressures. I represented welfare recipients charged with failing to disclose income, assets, or even household members (and their income) that could be used to reduce their benefits. If the state can use benefits to coerce a person's right to choose their living arrangements (as protected by Moore v. East Cleveland), I'm not sure why the state could not forbid giving a disability check to charities, religious or otherwise.
In any case, to the extent the posting on the ACLU message board is accurate (and it has some ring of truth), the Volokh hypo and Brownstein corollary are not so farfetched.
Allen Asch
Attorney at Law
Sacramento, CA
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