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Hastings Constitutional Law Quarterly

Authors

Andrea Pallios

Abstract

This Note addresses the question of the constitutionality of President Bush's charitable choice initiative. Under this plan, the federal government would provide funding to faith-based organizations that provide community services. The constitutional question is difficult to assess for two reasons. First, most Supreme Court Establishment Clause cases address federal funding of religious schools, not charities. The Supreme Court has only considered the funding of religious charities twice, and only once during the 20th century. Neither of these cases is dispositive in the case of charitable choice. Second, over the past thirty years, the Supreme Court has used a variety of tests in Establishment Clause cases, without overruling any of them. Because there is no telling which test the Supreme Court will use in any given case, this Note analyzes charitable choice under each of the Supreme Court's tests. It concludes that regardless of which test is used, the charitable choice plan is unconstitutional.

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