Friday, May 13, 2005

FindLaw's Writ - Brownstein: The "Charitable Choice" Bill That Was Recently Passed by the House Why Supreme Court Precedent Renders It Unconstitutional

FindLaw's Writ - Brownstein: The "Charitable Choice" Bill That Was Recently Passed by the House Why Supreme Court Precedent Renders It Unconstitutional: "The 'Charitable Choice' Bill That Was Recently Passed by the House: Why Supreme Court Precedent Renders It Unconstitutional
By VIKRAM AMAR AND ALAN BROWNSTEIN
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Friday, May. 13, 2005

This is Part Two of a series on 'charitable choice.' - Ed.
Two weeks ago, in Part One of a series of columns, we questioned the constitutionality of a 'charitable choice' bill recently passed by the House, H.R. 27. If that bill becomes law, the federal government will explicitly allow religious organizations that directly receive government subsidies in order to provide public services to discriminate on the basis of religion in hiring employees paid with government funds to staff such social service programs. In this column, Part Two, we continue the discussion of the constitutional issues presented by this proposed legislation. We focus our analysis here on one important Supreme Court decision, Corporation of Presiding Bishop of the Church of Christ of Latter Day Saints v. Amos - a ruling on which the Bill's supporters often, but misguidedly, rely. We begin with a quick summary of the affirmative case against H.R. 27 we staked out in Part One.


The Key Precedent That Calls H.R. 27 Into Question
As we explained in our last column, we think the controlling judicial precedent in this area is Justice O'Connor's concurring opinion in Mitchell v. Helms, a case where a divided Court upheld federal funding used by states to lend educational materials and equipment to public and private schools, including some private parochial schools "

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