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26 San Diego L. Rev. 255 (1989)
Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause

handle is hein.journals/sanlr26 and id is 267 raw text is: Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause MICHAEL W. McCONNELL* One great advantage of a general theory of unconstitutional condi- tions is that it makes it more difficult for courts to disguise their antipathy or indifference toward the exercise of particular constitu- tional rights by manipulating undefined notions of coercion and subsidy. The Supreme Court has held that the government may not deny benefits to a person who is out of work for religious rea- sons;1 but it may deny benefits to those who lose work because of pregnancy2 or participation in a labor dispute.3 It has held that gov- ernment subsidies may (and in some instances must) be denied to corporations or organizations because they engage in lobbying4 or religious activity,5 or did not receive enough votes in a recent elec- tion,6 but may not be denied on the ground that a potential recipient engages in political editorializing,7 or publishes a magazine of gen- eral interest rather than a religious, professional, trade, or sports * Professor of Law, University of Chicago Law School. This essay is a revised version of a presentation before the Constitutional Law Section of the Association of American Law Schools on January 6, 1989. Thanks are due Al Alschuler, Doug Baird, Lloyd Cohen, Frank Easterbrook, Doug Laycock, Bill Marshall, and Geof Stone for helpful comments on a previous draft. 1. Sherbert v. Verner, 374 U.S. 398 (1963); see also Thomas v. Review Bd., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987). 2. Wimberly v. Labor and Indus. Relations Comm'n, 479 U.S. 511 (1987). 3. Lyng v. International Union, UAW, 485 U.S. 360 (1988). 4. Cammarano v. United States, 358 U.S. 498 (1959) (tax deductions). 5. Bowen v. Kendrick, 108 S. Ct. 2562 (1988). 6. Buckley v. Valeo, 424 U.S. 1, 93-95 (1976). 7. FCC v. League of Women Voters, 468 U.S. 364 (1984).