Magazine article First Things: A Monthly Journal of Religion and Public Life
Douglas Kmiec replies:
It is good to have Professor Carl Esbeck on the side of faith-based organizations [FBOs]. I have long admired his judgment and clarity of expression in matters of law and religion. Unfortunately, in this instance, I believe he misunderstands the good news of the Good News decision. It certainly is not, as he and I both agree, a constitutional invitation to offer government-sponsored religious activity. Government neither can nor should directly fund proselytization or sectarian worship. Rather, the happy tidings in Good News--which adds to the plurality's welcome principle of nondiscrimination against religious entities in Mitchell--is the implicit recognition by Justice Sandra Day O'Connor that a government-provided benefit--be it computers, a public school classroom, or money--need not be immunized by the recipient's expression of religious belief.
In Mitchell, Justice O'Connor did not join the plurality opinion by Justice Clarence Thomas because nondiscrimination of allocation of government resources was not sufficient to satisfy her carefully stated factual concerns about government funding being misperceived by hypothetical observers as impermissible endorsement of particular faith choices. But--and here is the point that seems to be eluding those misdirecting President Bush to pursue the direct funding of FBOs rather than their indirect funding through tax credits reflective of the private faith choices of individual citizens--Justice O'Connor stated in Mitchell that her concern about the diversion of public resources to a religious purpose is largely ameliorated if a private decision intervenes.
As Justices O'Connor and Stephen Breyer wrote in their Mitchell concurrence, "When government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, `no reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief.'" This point was implicitly reaffirmed by Justice O'Connor joining Justice Thomas to form a majority in Good News when the public school classroom was used explicitly for wholly religious purposes, but only after parents approved--in advance--of their children participating in the Christian Bible Club. …