Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1981

Abstract

The Supreme Court has been extremely puzzled about how to treat the distribution of public benefits when the pattern of distribution may cause individuals to alter their preferences in making constitutionally protected choices. When dealing with the freedom to choose an abortion, for example, the Court held that the Hyde Amendment was constitutional because the government did not interfere with freedom when all it did was offer money to make the option it preferred (childbirth) more attractive. In free speech cases, the Court has said that when the government opens up public property or offers financial incentives to speakers it must treat all options equally-it may not favor a particular subject or position. Last term, in Thomas v. Review Board, the Court held that when freedom of religion is at stake, the government has an independent obligation to fund the option which the individual finds more attractive. The case directed the state of Indiana to pay unemployment compensation to one who quit his job for religious reasons, even though the state paid nothing to those who quit for other personal reasons. The allocation of public funds has created similar problems with regard to other constitutional freedoms, such as travel, voting, and parental choices about their children's education. I think that all these cases present questions of equality rather than freedom, and that the free exercise and abortion decisions err on different sides of the correct principle. The proper approach is to say, as the Court has regarding freedom of speech, that the government need not fund protected choices, but if it does, it must do so in a neutral fashion. If that is correct, then the question Thomas poses is not whether Indiana had prohibited the freedom to exercise religious belief but whether the Court, by awarding benefits, violated the equality principle inherent in the Establishment Clause.

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