Head-faking and Pussyfooting at One First Street

June 20th, 2013

Some colorable prose from Justice Scalia in AID:

The Court makes a head-fake at the unconstitutional conditions doctrine, ante, at 12, but that doctrine is of no help. There is no case of ours in which a condition that is relevant to a statute’s valid purpose and that is not in itself unconstitutional (e.g., a religious-affiliation condition that violates the Establishment Clause) has been held to violate the doctrine.* Moreover, as I suggested earlier, the contention that the condition here “coerces” respondents’ speech is on its face implausible. Those organizations that wish to take a different tack with respect to prostitution “are as unconstrained now as they were before the enactment of [the Leadership Act].” National Endowment for Arts v. Finley, 524 U. S. 569, 595 (1998) (SCALIA, J., concurring in judgment). As the Court acknowledges, “[a]s a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds,” ante, at 7, and to draw on its own coffers.

The majority cannot credibly say that this speech condition is coercive, so it does not. It pussyfoots around the lack of coercion by invalidating the Leadership Act for “requiring recipients to profess a specific belief ” and “demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern.” Ante, at 12 (emphasis mine).