Better a Catholic Than a Communist

In 1948, the Supreme Court in McCollum v. Board of Education declared a “released time” program for religious instruction in the Champaign, Illinois, public schools unconstitutional. Four years later in Zorach v. Clauson, the Court upheld an almost identical program in the New York City public schools. The Court distinguished the two programs on the grounds that the instruction in Champaign occurred in the school building, while the instruction in New York occurred off school grounds.

It is clear this factual distinction was persuasive to at least one justice, yet Justice Douglas inexplicably included in his opinion for the Court another justification for finding the New York plan constitutional. He wrote that Americans “are a religious people whose institutions presuppose a Supreme Being.”

This Note offers an explanation for Justice Douglas’s appeal to Americans as a religious people and contends that the argument was persuasive to the majority, save for Justice Burton. It argues that increasing post-war anti-Catholicism and the Court’s decision in Everson created a climate in 1948 where the country was concerned with a growing Catholic influence in the public schools. Following Everson, McCollum provided the Court with an opportunity to draw a line and establish Mr. Jefferson’s high wall, so much discussed in Everson, between the church and state sponsored education. 

Following McCollum, however, the country’s concern shifted to Communism. With this shift, the country’s perception of “released time” public education changed. Instead of viewing these programs as opportunities for Catholic influence in the public schools, the country viewed public religious education as an opportunity to oppose the spread of “Godless Communism,” and opposition to “released time” education was characterized as support for totalitarianism.
This Note posits that Justice Douglas’s appeal to the religious character of America reflected the changed historical context from McCollum to Zorach, namely, that by 1952 it was better to be a Catholic than a Communist.

The Case for For-Profit Charities

Nonprofit firms may earn profits, but they may not distribute them to any affiliated persons. If a nonprofit firm has a “charitable” purpose under § 501(c)(3) of the tax code, the firm receives numerous tax advantages. For example, donors may deduct their donations to the firm from their taxable personal income. For-profit firms may distribute profits to affiliated persons, but receives no tax advantages for engaging in “charitable” activities. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charitable firms, but there is no good argument for making those tax subsidies available only to charities that adopt the nonprofit form. Indeed, there are reasons to think the ability to distribute profits to affiliates may both increase and improve charitable activities. Moreover, the extensive charitable activities of many for-profit commercial firms suggest that in the absence of discriminatory tax treatment for-profit charities would flourish. Therefore, the current tax benefits offered to charitable nonprofits should be extended to for-profit charities, and to the charitable activities of for-profit commercial firms.

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge’s ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.