Journal of Christian Legal Thought
Summer 2013
program it is entitled to define the limits of that program.”5 Section 7631(f) represents a significant expansion of Rust. The government is requiring that a non-profit group adopt an organization-wide policy as the price of participating in a particular federal program. The restriction is not limited to the actual program that is being funded, in which the government is certainly free to “buy” its desired message. Instead, as the price of participating in government programs, the organization as a whole must adopt whatever policies the government dictates. If upheld, the government’s rationale could be used to require a religious nonprofit that administers social programs, largely through its own funds but supplemented by government funds, to agree to advocate the government’s position on any particular issue, not just in the specific program but on an organization-wide basis. Although the nonprofit would not be required to take the funding, it would face a difficult choice: hold to its principles or help more people. At oral argument, the government maintained that its ability to choose which organizations it would “partner with” to administer its programs should include the ability to condition “partnership” on the requirement that the organization be like-minded and share the government’s viewpoint as to the best way to achieve the government’s goals. Many members of the Court seemed troubled by the government’s heavy-handed approach.6 But everyone, including the advocates and the justices, seemed to have difficulty articulating the line between permissible and impermissible governmental conditions on organizations’ speech. The breadth of the government’s argument that private relief organizations “have been given a voluntary choice: whether to assist in carrying out a comprehensive governmental HIV/AIDS strategy”7 or forego funding, plus its corollary argument that “the government may . . . ensure that its message is effectively communicated, and not undermined, by the recipient,”8 clearly disquieted the Court. That discomfort was not eased by the government’s seeming inability to give administrable limits to the scope of this asserted power to influence private speech. Unblushingly, the government declared that “[i]t is for Congress to decide when a condition on the receipt of federal funds is integral to a funding program, and it has done so here.”9 The government conceded only that a funding condition could not be “aimed at suppressing dangerous ideas or disfavored viewpoints.”10 It further took refuge in the distinction between a funding condition that demands that a private speaker mouth certain speech, and a direct regulation of a private speaker’s expression. Professor Eugene Volokh filed an amicus curiae brief
on behalf of Christian Legal Society and the Becket Fund for Religious Liberty that argued it is “inconsistent with the First Amendment for the government to condition the receipt of a grant on the recipient’s agreement to make an affirmative policy statement that may be antithetical to the recipient’s beliefs.”11 The brief warned that giving the government such “startling power over religious and educational institutions” would skew the marketplace of ideas and penalize organizations for refusing to endorse the government’s ideology.12 The brief reminded the Court that tax exemptions13 and student loans14 have been deemed government subsidies, although the brief questioned the correctness of that determination.15 The specter of government using its various “subsidies” to pressure a religious organization to adopt the government’s policies on a wide range of issues is chilling. The principle, of course, would be valid for every level of government, from city council to Congress. The case points to the need for legal scholarship that revisits the 1980s decisions that equated tax exemptions and student loans with government subsidies.16 Such an expansive understanding of “government subsidy” is a recurrent threat to freedom of speech, as is an unlimited ability of government to condition funds on a private speaker’s willingness to adopt the government’s various policies. The United States Commission on Civil Rights Holds a Briefing on Reconciling Nondiscrimination Policies with the Freedoms of Speech and Religion Relatedly, the flawed premise underlying Justice Ginsburg’s majority opinion in Christian Legal Society v. Martinez17 is the mistaken, oft-rejected notion that the government subsidizes religious speech when it allows a religious group to meet on public property like other private speakers. Martinez’s mischaracterization of meeting space as a government subsidy flies in the face of forty years of precedent to the contrary. In Healy v. James,18 the Court rejected precisely the idea that a college subsidized the radical political speech of the Students for a Democratic Society by recognizing them as an official student group. In Widmar v. Vincent,19 in rebuffing a public university’s Establishment Clause defense, the Court again rejected the idea that a university subsidized a student group’s religious speech when it recognized the group and granted it meeting space. The same has been held to be true for religious groups that meet at high schools as recognized student groups,20 use a high school auditorium in the evenings,21 publish an evangelical Christian campus magazine,22 and lead after-school meetings for elementary students on school grounds.23 The Martinez decision was the subject of a briefing held by the U.S. Commission on Civil Rights on March 22, 2013, on the broader topic of the compatibility of 12