In addition to the special rights that McConnell would give to religious organizations, McConnell’s non-neutral interpretation of the Religion Clauses would create a constitutional double standard under which a facially neutral law that burdens religion should be struck down, but a facially neutral law that benefits religion should be upheld, even one that provides direct financial aid or other government support. Indeed, McConnell views the exclusion of religious organizations from neutral government aid programs as discriminatory,27 yet finds nothing problematic about discriminating in favor of religion to exempt it from the requirements of a neutral law that has the effect of burdening religion.
McConnell would provide strong protection for the free exercise of religion, but would undermine the Establishment Clause, particularly when it comes to direct government aid to religious organizations. His inconsistent position on neutrality is illustrated by his views of two Supreme Court cases, Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and Mitchell v. Helms, 530 U.S. 793 (2000). Smith concerned two Native American employees of a drug rehabilitation organization who had been fired from their jobs for having ingested peyote for sacramental purposes as part of a religious ceremony at their church. They were denied unemployment compensation because they were deemed to have engaged in work-related “misconduct,” since the use of peyote violated the state’s criminal law. In Smith, which McConnell believes was wrongly decided,28 the Court departed from prior precedent to hold that a facially neutral law that has the effect of burdening the exercise of religious beliefs need not be justified by a compelling governmental interest. Thus, the Court held, the workers who had been fired for having exercised their religious beliefs could be denied unemployment compensation benefits.
People For the American Way and many other organizations agree with McConnell that Smith was wrongly decided and has the potential for needless governmental interference with an individual’s free exercise of religious beliefs. However, McConnell inconsistently maintains that while it is impermissible for religion to be burdened by neutral laws absent a compelling governmental interest, religion can and should reap the benefits, including the financial benefits, of such laws. Thus, as he has shown in published articles and congressional testimony and made clear in his brief in Mitchell v. Helms, discussed below, he is a fervent advocate of including religious organizations in governmental aid programs, so long as such programs are purportedly “neutral.” According to McConnell, “[w]hen the government is giving money to private organizations, it must do so without regard to whether the particular institution has a religious commitment and without regard to whether that organization engages in specifically religious activities as part of its program.”29
Not only does McConnell support direct government aid to religious organizations, it appears that he would oppose the imposition on such organizations of neutral rules governing receipt of such aid, such as rules requiring recipients not to discriminate. According to McConnell:
[I]f religious organizations have a constitutional right to equal access to public programs, the government may not condition their access on rules which burden their practice of religion, unless the rules are closely related to the purposes of the program.McConnell, “Religious Freedom at a Crossroads,” 59 U. Chi. L. Rev. 115, 186 (Winter 1992) (emphasis added). This interpretation of the Constitution has significant ramifications, particularly for so-called “charitable choice” programs in which government funds are provided to religious organizations, many of which may seek to incorporate religious practices into their programs or claim the right to engage in discrimination in the provision of their services or in their employment practices. According to McConnell, such organizations should have their cake and eat it too –- receive government funds yet be able to violate anti-discrimination statutes and other important laws.
McConnell recently advanced his support for direct aid to religious institutions through his advocacy in Mitchell v. Helms, which concerned a challenge to the constitutionality of a federal school aid program as applied to parochial schools in a local Louisiana school district. Under that program, the government lent educational materials, such as computers and computer software, to public and private schools, including religious schools. McConnell argued before the Supreme Court that the program should be found constitutional.
In his brief, McConnell urged the Court to adopt a rule of neutrality, asserting that “the evenhanded provision of secular, neutral, and nonideological instructional resources to all public and private schoolchildren does not violate the Establishment Clause.”30 According to McConnell, religious schools may not be denied government aid when “the government extends aid to a broad category of beneficiaries on the basis of neutral and secular criteria.”31
The facial “neutrality” of a law, however, while important, “is not alone sufficient” to determine its constitutionality under the Establishment Clause.32 And while the Court in Mitchell ruled in favor of McConnell’s clients and upheld the program, a 5-4 majority rejected McConnell’s version of neutrality. Through a concurring opinion written by Justice O’Connor (joined by Justice Breyer) and a dissenting opinion by Justice Souter (joined by Justices Stevens and Ginsburg), a majority of the Court pointed out that making a law’s facial neutrality determinative of its constitutionality would be a radical departure from First Amendment jurisprudence. As Justice Souter explained, such a rule “would permit practically any government aid to religion so long as it could be supplied on terms ostensibly comparable to the terms under which it was provided to nonreligious recipients.” 530 U.S. at 901, n.19 (emphasis added).
McConnell’s view that religious organizations cannot be denied government aid provided on a “neutral” basis would appear to have no limits. Indeed, members of the Court seemed to recognize this in questioning him during oral argument in Mitchell. See Transcript of Oral Argument, Mitchell v. Helms, 1999 WL 1134744 (Dec. 1, 1999). As suggested by some of the Justices’ questions (id.), McConnell’s interpretation of the First Amendment, taken to its logical conclusion, would permit the government to build religious schools under a “neutral” school construction program in which it also built public and non-religious private schools. While McConnell carefully side-stepped the Justices’ efforts to elicit any limiting principle on his view of “neutral” aid programs (id.), McConnell should not be permitted to avoid such critical questions at his confirmation hearing.33
McConnell’s support for direct government aid to religious organizations gives short shrift to the rights of individuals compelled to support religious organizations in violation of their own beliefs –- an interest that Justice O’Connor and the Court majority have written is an important aspect of the Establishment Clause. Yet McConnell has stated “[w]e must . . . reject the central animating idea of modern Establishment Clause analysis: that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes.”34
McConnell’s support for government funding of religion and the threat that his confirmation would pose to church-state separation and religious liberty is also reflected in his apparent hostility to state constitutional provisions expressly prohibiting the use of public funds to support sectarian institutions or religious instruction. In states that have chosen to adopt them, these important provisions give specific effect to the fundamental doctrine that taxpayers should not be compelled by the government to support religious institutions, and that the government should not fund religion. McConnell has a very different view. Referring to such state constitutional provisions in testimony before Congress, McConnell stated that “the erroneous separationist understanding of the First Amendment has extended to many state constitutions as well as the federal.”35 McConnell urged Congress, if it decided to “take action to defend against anti-religious discrimination,” to “affirmatively extend the protection of federal law to those whose rights are violated under color of state interpretations of church-state separation. . . .”36
With the U.S. Supreme Court’s recent holding that school voucher programs in which public funds are used to pay for students to attend religious schools do not violate the federal Constitution,37 state constitutional provisions prohibiting public funding of religious organizations have assumed added importance in preserving church-state separation. Many if not all of the states within the jurisdiction of the Tenth Circuit have such provisions in their own constitutions. Confirming McConnell to a lifetime seat on the Tenth Circuit would clearly place those constitutional provisions in jeopardy.