Charities and the Constitution: Evaluating the Role of Constitutional Principles in Determining the Scope of Tax Law’s Public Policy Limitation for Charities

Abstract

©2002 David A. BrennenThe judicial assault on constitutionally permissible social justice efforts including affirmative action for minorities and ending discrimination against homosexuals continues. Through the rubric of “neutrality,” “equality” and “free expression,” courts today are using constitutional law principles to arrest efforts by state and federal governments either to (1) remedy present effects of historical discrimination or (2) end current discrimination. Accordingly, various federal circuit courts have interpreted Equal Protection Clause strict scrutiny as prohibiting government from considering race as a factor when making university admissions decisions or granting scholarships. Thus, it is not inconceivable that the Supreme Court might soon rule that a state school’s consideration of race, in order to obtain a more diverse student body, violates Equal Protection Clause strict scrutiny – either because racial diversity is not “compelling” or because considering race is not “necessary.” Additionally, the Supreme Court invalidated, under the guise of free expression, state law attempts to lessen discrimination against homosexuals.