Partners, not rivals?: Redrawing the lines between public and private, non-profit and profit, and secular and religious

Boston University Law Review

Volumn 80, Issue 4, 2000, Pages 1061-1094

  Minow, Martha ^a  

^a NONE

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EID: 0034363041     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (165)

1. See ROZ CHAST, On Display at the Children's House of Horrors, in CHILDPROOF: CARTOONS ABOUT PARENTS AND CHILDREN, at unnumbered page 6 of chapter entitled Kids' Point of View (1997).
2. See NATIONAL CTR. FOR EDUCATION STATISTICS, U.S. DEP'T OF EDUCATION, 97-459 PRIVATE SCHOOLS IN THE UNITED STATES: A STATISTICAL PROFILE, 1993-94 57 (1997).
3. See Anemona Hartocollis, Religious Leaders Map Plans to use New Law for Publicly Financed Charter Schools, N.Y. TIMES, Dec. 29, 1998, at A17 (reporting on plans by religious leaders to operate taxpayer-financed charter schools on church property).
4. See CHARLES L. GLENN, THE AMBIGUOUS EMBRACE: GOVERNMENT AND FAITH-BASED SCHOOLS AND SOCIAL AGENDAS 104 (2000).
5. See Stephen V. Monsma, The "Pervasively Sectarian" Standard in Theory and Practice, 13 NOTRE DAME J. L. ETHICS & PUB. POL'Y 321 (1999) (citing DIVISION OF CHURCH & SOC'Y OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA, 1996 ANNUAL REPORT (1996)). Lutheran Social Ministries received about 55 percent of their revenues from government sources. See also Sean Mehegan, The Federal Connection: Nonprofits are Looking More and More to Washington, NONPROFIT TIMES, Nov. 1994, at 43.
6. See Stephen V. Monsma, The "Pervasively Sectarian" Standard in Theory and Practice, 13 NOTRE DAME J. L. ETHICS & PUB. POL'Y 321 (1999) (citing DIVISION OF CHURCH & SOC'Y OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA, 1996 ANNUAL REPORT (1996)). Lutheran Social Ministries received about 55 percent of their revenues from government sources. See also Sean Mehegan, The Federal Connection: Nonprofits are Looking More and More to Washington, NONPROFIT TIMES, Nov. 1994, at 43.
7. See 42 U.S.C. §. 604a (2000) (regarding charitable choice).
8. See Child Care and Development Block Grant Program of 1990, 42 U.S.C. §§ 9858c(c)(2)(A)(i)(II), 9858n(2) (1995) (permitting parents to receive child care certificates to use as payment to child care providers, including faith-based child care centers).
9. See GLENN, supra note 4, at 8.
10. See 42 U.S.C. §. 604a(2)(d)(2)(A),(B).
11. See id. at 604a(c).
12. Elsewhere, I suggest that the provisions may in practice unconstitutionally support pervasively sectarian institutions, aid worship and proselytizing, jeopardize the religious free exercise of the destitute, and attract participation by only an identifiable subset of religious groups. See Martha Minow, Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It, 49 DUKE L.J. 493, 531 (1999).
13. See Joe Frolik, Using Faith to Find Solutions to Poverty: Faith-Based Solutions Used to Fight Poverty, CLEVELAND PLAIN DEALER, Nov. 28, 1999, at A1 (discussing Bush and Gore).
14. See id.; see also GLENN, supra note 4, at 73 (citing Aaron T. Bicknese, Teen Challenge Drug Treatment Program in Comparative Perspective 211 (1999) (unpublished Ph.D. dissertation, Northeastern University)); Minow, supra note 11, at 558-559 (discussing Goldsmith's front-porch initiative).
15. See Adelle M. Banks, Congregations Nurture Spiritual Public Life, Religious Scholars Say, MINNEAPOLIS STAR TRIBUNE, Nov. 6, 1999, at B6 (noting that the most successful programs are often faith-based and that the emotional support offered by religious organizations may be a reason); Frolik, supra note 12, at A1.
16. See Frolik, supra note 12, at A1; John Strauss, A Lasting Legacy: City's National Status Grew Under His Watch, INDIANAPOLIS STAR, Dec. 26, 1999, at A1 (describing Goldsmith's efforts to connect churches and neighborhood groups with government resources and expertise); John Strauss, Mayor Riding Political Turnaround, INDIANAPOLIS STAR, Dec. 28, 1999, at A1 (outlining Goldsmith's career and his relationship with Bush).
17. See Frolik, supra note 12, at A1; John Strauss, A Lasting Legacy: City's National Status Grew Under His Watch, INDIANAPOLIS STAR, Dec. 26, 1999, at A1 (describing Goldsmith's efforts to connect churches and neighborhood groups with government resources and expertise); John Strauss, Mayor Riding Political Turnaround, INDIANAPOLIS STAR, Dec. 28, 1999, at A1 (outlining Goldsmith's career and his relationship with Bush).
18. Business and non-profits have adopted highways; even the Ku Klux Klan has volunteered. See U.S. NEWS AND WORLD REPORT, Aug. 4, 1997, at 18 (quoting the Ku Klux Klan regarding why they should be allowed to adopt a highway in Florida).
19. Non-profits seldom can survive solely on donations and instead engage in a variety of fundraising activities. See Burton A. Weisbrod, The Complexities of Income Generation for Non-Profits, in THE FUTURE OF THE NON-PROFIT SECTOR: CHALLENGES, CHANGES, AND POLICY CONSIDERATIONS, 103 (Virginia A. Hodgkinson et al. ed., 1989) (revealing that more than half of non-profits received less than 25 percent of their revenue from donations and describing non-profits' for-profit activities);
20. Heather Gottry, Note: Profit or Perish: Non-Profit Social Service Organizations & Social Entrepreneurship, 6 GEO. J. ON POVERTY & POL'Y 249 (1999) (analyzing the debate surrounding non-profits entering for-profit markets). See generally NEW SOCIAL ENTREPRENEURS: THE SUCCESS, CHALLENGE AND LESSONS OF NON-PROFIT ENTERPRISE CREATION (Jed Emerson & Fay Twersky eds., 1996) (describing non-profit organizations' efforts to create programs for low income people that will lead to economic self-determination).
21. See generally Developments in the Law - Nonprofit corporations, 105 HARV. L. REV. 1578, 1613-25 (1992) (explaining the non-profit tax exemption scheme and rationales for tax exemption).
22. See NEW SOCIAL ENTREPRENEURS, supra note 17, at 1-19 (describing moves to cross boundaries between businesses and non-profit social service providers).
23. SHIRLEY SAGAWA AND ELI SEGAL, COMMON INTEREST, COMMON GOOD: CREATING VALUE THROUGH BUSINESS AND SOCIAL SECTOR PARTNERSHIPS (2000).
24. See Rosabeth Moss Kanter, Foreword to COMMON INTEREST, COMMON GOOD, supra note 21, at xi, xii (describing the powerful combination of business models and social values).
25. See SAGAWA AND SEGAL, supra note 20, at 37-46 (describing Home Depot's program and the mutual benefits to the company and the non-profit).
26. Id. at 3.
27. See id. at 218-19 (explaining how partners continue to find value in their relationship).
28. See id. at 13, 19, 23-25 (describing different types of exchanges between business and social sector organizations).
29. See id. at 84-85 (describing Dennys' desire to partner with a children's organization such as Save the Children).
30. See id. at 103-104 (explaining reasons for business sponsorship of non-profits).
31. See id. at 104 (explaining how the sponsor's image becomes that of benefactor).
32. See id. (exclusive of dollars spent to promote the sponsorship).
33. See id. at 113-26 (describing Calphalon's work with a national anti-hunger group).
34. See id. at 121 (noting the subsequent growth of both Calphalon's sales and donations to the anti-hunger group).
35. See id. at 122 (describing efforts to involve chefs in the promotion of Calphalon while simultaneously showcasing the chefs, leading, in turn, to increased retailer interest).
36. See id. at 165 (urging caution in these sorts of enterprises).
37. See id. at 236 (describing Res-Care, programs and services for special needs children and adults, and Big City Forest, a home furnishing business using wood from landfills).
38. See id. at 166-67 (explaining the non-profit's tax exemption concerns and noting that if business income becomes substantial, an alternative organizational structure may be needed); see also Donald L. Sharple, Unfair Business Competition and the Tax on Income Destined for Charity: Forty-Six Years Later, 3 FLA. TAX. REV. 367, 410 n.123 (1996).
39. See SAGAWA AND SEGAL, supra note 20, at 167-68 (explaining how non-profit status can help launch business ventures and noting the argument that such benefits may give non-profits an unfair advantage over for-profit businesses).
40. See id. at 124 (describing licensing agreements between non-profits and corporations and some of the attendant risks).
41. See Jude L. Fernando and Alan W. Heston, Introduction: NGOs between States, Markets, and Civil Society in THE ROLE OF NGOs: CHARITY AND EMPOWERMENT, 554 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 8, 12 (1997) (describing the increasing influence of NGOs).
42. See Lester M. Salamon, The Rise of the Nonprofit Sector, 73 FOREIGN AFFAIRS 109 (1994) (describing the increasing globalization of non-profit organizations).
43. See id. at 112-15, 119-20 (describing different types of involvement worldwide between governments, NGOs, charitable foundations, churches, and for-profit organizations).
44. Yet the one option most preferred by Americans, according to opinion polls, is not available; this would be universal health insurance with free choice of individual doctors. See ROBERT KUTTNER, EVERYTHING FOR SALE 42 (1998). Kuttner blames the free market, which remains the background framework for U.S. health care. See id.
45. See Ira C. Lupu, The Increasingly Anachronistic Case Against School Vouchers, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 375, 375 (1999) (describing the situation of a Jewish patient in a Catholic hospital, surrounded by crucifixes and Catholic clergy).
46. Medicare spending has significantly increased in areas served by for-profit hospitals compared with those served by non-profits. See Glen Singer, Medicare Spending Rises Near For-Profit Hospitals, SUN-SENTINEL, Aug. 6, 1999, at D3 (reporting on a study of this increase in the New England Journal of Medicine).
47. See generally THE CHANGING HOSPITAL INDUSTRY: COMPARING NOT-FOR-PROFIT AND FOR-PROFIT INSTITUTIONS (David M. Cutler, ed., 2000) (discussing the tax benefits of non-profit hospitals and the effect on patient care).
48. See Jamie Court and Frank Smith, Wall Street Move Should Give Patients a Break, NEWSDAY, Nov. 15, 1999, at A30 (noting that the HMO accountability movement and the need to attract investors could result in improved patient care); Richard Saltus, Study Says For-Profit HMOs Skimp on Preventive Care Services, BOSTON GLOBE, July 14, 1999, at A8 (comparing for-profit and non-profit HMOs in terms of quality of service).
49. See Jamie Court and Frank Smith, Wall Street Move Should Give Patients a Break, NEWSDAY, Nov. 15, 1999, at A30 (noting that the HMO accountability movement and the need to attract investors could result in improved patient care); Richard Saltus, Study Says For-Profit HMOs Skimp on Preventive Care Services, BOSTON GLOBE, July 14, 1999, at A8 (comparing for-profit and non-profit HMOs in terms of quality of service).
50. See Louise G. Trubek, Making Managed Competition a Social Arena: Strategies for Action, 60 BROOK. L. REV. 275 (1994) (explaining Wisconsin's managed competition structure); Liz Kowalczyk, HMO's Suitors Testing the Waters, For-Profit Companies Contacting Hospitals, BOSTON GLOBE, Feb. 27, 2000, at B1(reporting that for-profit HMOs are trying to enter traditionally non-profit markets). See generally CUTLER, supra note 44 (describing the recent state of flux in the hospital market).
51. See Louise G. Trubek, Making Managed Competition a Social Arena: Strategies for Action, 60 BROOK. L. REV. 275 (1994) (explaining Wisconsin's managed competition structure); Liz Kowalczyk, HMO's Suitors Testing the Waters, For-Profit Companies Contacting Hospitals, BOSTON GLOBE, Feb. 27, 2000, at B1(reporting that for-profit HMOs are trying to enter traditionally non-profit markets). See generally CUTLER, supra note 44 (describing the recent state of flux in the hospital market).
52. See KUTTNER, supra note 41, at 126 (describing the explosive growth of hospital chains).
53. See Lisa C. Ikemoto, When a Hospital Becomes Catholic, 47 MERCER L. REV. 1087, 1113 (1996) (noting that this study also showed that Catholic hospitals provided less charity care than other non-profits).
54. See GREGORY G. BEBEL AND WILLIAM L. PERRON, CATHOLICS FOR A FREE CHOICE, REPRODUCTIVE HEALTH AT RISK: A REPORT ON MERGERS AND AFFILIATIONS IN THE CATHOLIC HEALTH CARE SYSTEM 9 (1995); Kathleen M. Boozang, Deciding the Fate of Religious Hospitals in the Emerging Health Care Market, 31 HOUS. L. REV. 1429, 1446-75 (1995) (discussing the conflict between religious integrity and patient care).
55. See GREGORY G. BEBEL AND WILLIAM L. PERRON, CATHOLICS FOR A FREE CHOICE, REPRODUCTIVE HEALTH AT RISK: A REPORT ON MERGERS AND AFFILIATIONS IN THE CATHOLIC HEALTH CARE SYSTEM 9 (1995); Kathleen M. Boozang, Deciding the Fate of Religious Hospitals in the Emerging Health Care Market, 31 HOUS. L. REV. 1429, 1446-75 (1995) (discussing the conflict between religious integrity and patient care).
56. Jennifer Templeton Schirmer, Note, Physician Assistant as Abortion Provider: Lessons from Vermont, New York, and Montana, 49 HASTINGS L.J. 253, 273 (1997) (discussing situations in which physicians who are willing to perform abortions are forbidden from doing so); see also Ikemoto, supra note 48, at 1110 (explaining the trade-off made for funding).
57. See Kathryn D. Katz, The Pregnant Child's Right to Self-Determination, 62 ALB. L. REV. 1119, 1125-26 (describing political and financial considerations that may drive many hospitals out of the abortion field); Lawrence E. Singer and Elizabeth Johnson Lantz, The Coming Millennium: Enduring Issues Confronting Catholic Health Care, 8 ANNALS HEALTH L. 299, 305 (1999) (discussing the interaction between lay health care providers and church leaders over such issues as canon law); Alissa J. Rubin, Abortion Providers at Lowest Mark, Since '73, L.A. TIMES, Dec. 11, 1998, at A45 (attributing drop in abortion providers to mergers and takeovers by Catholic hospitals).
58. See Kathryn D. Katz, The Pregnant Child's Right to Self-Determination, 62 ALB. L. REV. 1119, 1125-26 (describing political and financial considerations that may drive many hospitals out of the abortion field); Lawrence E. Singer and Elizabeth Johnson Lantz, The Coming Millennium: Enduring Issues Confronting Catholic Health Care, 8 ANNALS HEALTH L. 299, 305 (1999) (discussing the interaction between lay health care providers and church leaders over such issues as canon law); Alissa J. Rubin, Abortion Providers at Lowest Mark, Since '73, L.A. TIMES, Dec. 11, 1998, at A45 (attributing drop in abortion providers to mergers and takeovers by Catholic hospitals).
59. See Kathryn D. Katz, The Pregnant Child's Right to Self-Determination, 62 ALB. L. REV. 1119, 1125-26 (describing political and financial considerations that may drive many hospitals out of the abortion field); Lawrence E. Singer and Elizabeth Johnson Lantz, The Coming Millennium: Enduring Issues Confronting Catholic Health Care, 8 ANNALS HEALTH L. 299, 305 (1999) (discussing the interaction between lay health care providers and church leaders over such issues as canon law); Alissa J. Rubin, Abortion Providers at Lowest Mark, Since '73, L.A. TIMES, Dec. 11, 1998, at A45 (attributing drop in abortion providers to mergers and takeovers by Catholic hospitals).
60. See Nadine Strossen and Ronald K.L. Collins, The Future of an Illusion: Reconstituting Planned Parenthood v. Casey, 16 CONST. COMMENTARY 587, 590 (1999) (noting the increasing constraints placed on a woman's ability to obtain an abortion).
61. See Ikemoto, supra note 48, at 1106-08 and text accompanying nn. 104-120 (describing the medical procedures prohibited and allowed by Catholic doctrine).
62. See id. at 1095 and text accompanying nn.46-49 (discussing the effect of mergers on rural hospitals).
63. See id. at 1101, 1125 and n.189 (noting that bishops are increasingly allowing such collaborative arrangements).
64. See id. at 1100-01 (discussing the effect of Catholic doctrine on both the health services provided and the success of hospital mergers).
65. See Schirmer, supra note 50, text accompanying nn.29-35. It should be noted that many, if not most, Catholic women disagree with the Church's views on reproductive choice. See also id. at text accompanying n.178 (citing poll of Catholics for a Free Choice that shows that 72 percent of women polled believe it is wrong for religious leaders to tell physicians how to practice, regardless of the physician's religious beliefs).
66. See id. at text accompanying n.78.
67. See generally Michael Lewis, THE NEW NEW THING 52, 53 (2000).
68. See generally LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).
69. See Daryl Lang and Jennifer Nejman, Iowa Newspaper Battles College Publication in Court, DIGITAL COLLEGIAN, Jan. 30, 1998 (reporting on competition between a university-run and a privately-run newspaper).
70. See Ronald Rosenberg, A Boost From Biotech: Yale Backs Start-ups to Help Make Ailing New Haven a Major Biomedical Center, BOSTON GLOBE, March 12, 2000, at G1 (reporting on University recruitment to foster economic development).
71. See NEWTON N. MINOW AND CRAIG S. LAMAY, ABANDONED IN THE WASTELAND 10, 11, 60 (1997) (focusing mainly on the service provided to children by public broadcasting).
72. See generally ROBERT W. MCCHESNEY, GLOBAL MEDIA FOR THE GLOBAL ECONOMY (Don Hazen and Julie Winokur eds., 1997).
73. See Don Aucoin, On a Wing and a Prayer: Are Big Bird's Colleagues at PBS in Danger of Becoming Roadkill on the Information Superhighway?, BOSTON SUNDAY GLOBE, Feb. 27, 2000, at E1 (discussing the merchandizing of toys necessary for developing public television children's shows).
74. See id. (discussing shows on Nickelodeon, Animal Planet Channel, the Disney Channel, and ABC).
75. See National Center for Policy Analysis, Private Prisons (visited March 8, 2000) .
76. See Sharon Dolovich, The Ethics of Private Prisons 33 (Nov. 1999 draft).
77. See Public Facilities Investment Corporation: Project Types, (visited March 8, 2000) .
78. See Stephen L. Carter, The Religiously Devout Judge, 64 NOTRE DAME L. REV. 932 (1989) (discussing the separation question). This explosion of interest in the bearing of religious identities on the roles of legal professionals differs from longstanding use of religious references in government courtrooms. On the latter, see Elizabeth A. Brooks, Note, Thou Shall Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 GA. L. REV. 1113 (1999) (discussing the propriety of arguments based on religious text).
79. See Stephen L. Carter, The Religiously Devout Judge, 64 NOTRE DAME L. REV. 932 (1989) (discussing the separation question). This explosion of interest in the bearing of religious identities on the roles of legal professionals differs from longstanding use of religious references in government courtrooms. On the latter, see Elizabeth A. Brooks, Note, Thou Shall Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 GA. L. REV. 1113 (1999) (discussing the propriety of arguments based on religious text).
80. See generally Carl H. Esbeck, A Constitutional Case for Government Cooperation with Faith-Based Social Service Providers, 46 EMORY L.J. 1 (1997) (discussing generally the constitutionality of government welfare programs that act in concert with sectarian social service organizations).
81. See GLENN, supra note 4, at 15 (discussing Britain and the U.S.).
82. See Peter L. Berger and Richard John Neuhaus, Peter L. Berger and Richard John Neuhaus Respond, in TO EMPOWER PEOPLE: FROM STATE TO CIVIL SOCIETY 145-46, 148-49 (Michael Novak ed., 2d ed. 1996) (discussing the importance of mediating structures in balancing relations between market forces and the modern welfare state); see also Lester M. Salamon and Helmut K. Anheier, THE EMERGING SECTOR: AN OVERVIEW xiii-xv (1996) (describing the state of the non-profit sector in 12 countries).
83. See Peter L. Berger and Richard John Neuhaus, Peter L. Berger and Richard John Neuhaus Respond, in TO EMPOWER PEOPLE: FROM STATE TO CIVIL SOCIETY 145-46, 148-49 (Michael Novak ed., 2d ed. 1996) (discussing the importance of mediating structures in balancing relations between market forces and the modern welfare state); see also Lester M. Salamon and Helmut K. Anheier, THE EMERGING SECTOR: AN OVERVIEW xiii-xv (1996) (describing the state of the non-profit sector in 12 countries).
84. According to one commentator: The policy of downsizing the federal government has placed the non-profit sector in a double-bind: it faces increased demands for the services it provides in order to take up the slack created by discontinued federal programs; simultaneously, it must compete for a shrinking federal grant dollar. Additionally, some industries in the nonprofit sector [notably, health care] face special challenges. Barbara Bucholtz, Reflections on the Role of Nonprofit Associations in a Representative Democracy, 7 CORNELL J. L. & PUB. POL'Y 555, 556 n.4.
85. See Burton A. Weisbrod, The Future of the Nonprofit Sector: Its Entwining with Private Enterprise and Government, 16 J. POL'Y ANALYSIS & MGT. 541, 543-44, 547-48, 549 (1997). However, greater visibility means more demands for accountability by the non-profit sector. See id. at 541.
86. See Gottry, supra note 17, at 255; Henry Hansmann, The Two Non-profits: Fee for Service Versus Donative Organizations, in HODGKINSON, supra note 17, at 91(foreseeing the emergence of both charitable and commercial non-profits).
87. See Gottry, supra note 17, at 255; Henry Hansmann, The Two Non-profits: Fee for Service Versus Donative Organizations, in HODGKINSON, supra note 17, at 91(foreseeing the emergence of both charitable and commercial non-profits).
88. See Richard C. Leone, Foreword to KUTTNER, supra note 41, at xi-xii (contrasting Kuttner's point of view with the growing belief in the failings of mixed capitalism and a desire to return to a "pure" laissez-faire market economy).
89. "New forms of competition are likely to result from such a devolution of responsibility from government to mediating structures, and this could produce some efficiencies. What we are calling the civil society strategy is not primarily concerned with vindicating the market, however, nor does it assume that market forces should be allowed free rein in education and social services." GLENN, supra note 4, at 25. "The civil society strategy is concerned not only with organizational forms and dynamic . . . but also with the spirit and the values that . . . animate schools or social agencies." Id. at 27.
90. See id. at 7.
91. Glenn, for example, warns that "[g]overnment support of choice among educational and social programs could come with so many strings attached that they would no longer offer real alternatives, function as mediating structures, or promote a coherent sense of moral obligation. . . . The civil society, as a result, could end up weaker than before." Id. at 9. See also MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION 149 (1992); Robert Wuthnow, Tocqueville's Question Reconsidered:Volunteerism and Public Discourse in Advanced Industrial Societies, in BETWEEN STATES AND MARKETS: THE VOLUNTARY SECTOR IN COMPARATIVE PERSPECTIVE 300 (Robert Wuthnow ed., 1991).
92. Glenn, for example, warns that "[g]overnment support of choice among educational and social programs could come with so many strings attached that they would no longer offer real alternatives, function as mediating structures, or promote a coherent sense of moral obligation. . . . The civil society, as a result, could end up weaker than before." Id. at 9. See also MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION 149 (1992); Robert Wuthnow, Tocqueville's Question Reconsidered:Volunteerism and Public Discourse in Advanced Industrial Societies, in BETWEEN STATES AND MARKETS: THE VOLUNTARY SECTOR IN COMPARATIVE PERSPECTIVE 300 (Robert Wuthnow ed., 1991).
93. See VIRGINIA A. HODGKINSON, MURRAY S. WEITZMAN, STEPHEN M. NOGA, AND HEATHER A. GORSKI, A PORTRAIT OF THE INDEPENDENT SECTOR: THE ACTIVITIES AND FINANCES OF CHARITABLE ORGANIZATIONS 9-14, 31 (1993) (providing figures, tables, and charts illustrating these ties).
94. See J. RICHARD PIPER, IDEOLOGIES AND INSTITUTIONS: AMERICAN CONSERVATIVE AND LIBERAL GOVERNANCE PRESCRIPTIONS SINCE 1933 354 (1997) (discussing conservative dissension regarding presidential and congressional duties and responsibilities).
95. See The National Center for Policy Analysis (visited March 8, 2000) . The National Center for Policy analysis is a "nonprofit, nonpartisan public policy research institute that seeks innovative, private sector solutions to public policy problems" and supports school vouchers. See id. The site explains their research and support for a capital gains tax cut, a flat tax, medical savings accounts allowing senior citizens to leave Medicare and purchase private health insurance instead, bounties for detection of criminal activity, private attorneys as deputy DAs, private bail, and involvement of prisoners in market-based work. Pete du Pont is the chairperson. See id.
96. See PEOPLE FOR THE AMERICAN WAY, BUYING A MOVEMENT: RIGHT-WING FOUNDATIONS AND AMERICAN POLITICS 8 (1996).
97. See id. 85 See Smart Bombs . . ., SAN FRANCISCO EXAMINER, May 24, 1992; see also id. at text accompanying n.41.
98. See Jack Kemp, Foreword to JOSEPH J. JACOBS, THE COMPASSIONATE CONSERVATIVE: SEEKING RESPONSIBILITY AND HUMAN DIGNITY vii-ix (1996) (extolling the values of economic and moral conservatism).
99. JOSEPH J. JACOBS, THE COMPASSIONATE CONSERVATIVE: SEEKING RESPONSIBILITY AND HUMAN DIGNITY 292 (1996).
100. Id.
101. See KUTTNER, supra note 41 at 352 (noting left-wing observers see the market as a greater threat to civil society than government, while right-wing observers blame government).
102. See Symposium, Law, Economics, & Norms, 144 U. PA. L. REV. 1745 (1996).
103. See Boy Scouts of Amer. v. Dale, 120 S.Ct. 2446 (2000).
104. See Sharon Rose-Ackerman, Social Services and the Market, 83 COLUM. L. REV. 1405, 1412-20 (1983) (discussing using the behavior of paying customers as a method of monitoring quality).
105. See SAGAWA AND SEGAL, supra note 20, at 165.
106. See id. (explaining the various reasons why non-profits may be difficult to sustain).
107. See KUTTNER, supra note 41, at 127 (describing the uncoincidental hires that take place).
108. See id. at 127-29 (describing the conflict of missions).
109. See SAGAWA AND SEGAL, supra note 20, at 236 (noting that for-profit managers claim that the bottom line provides incentives for excellent customer service).
110. Sagawa and Segal argue that non-profits can and should learn from the competitive, customer-driven, results-oriented, enterprising, market-oriented features of for-profit enterprises. See id. at 242. Similarly, foundations and governments supporting non-profits can learn from venture capitalists to make investments based on the strength of the organizations and thus support development of financial systems, human resources, and quality control, with a long-term focus rather than with the single-project, short-term focus they currently deploy. See id.
111. See id. at 236, 242.
112. See John D. Colombo, Why is Harvard Tax-Exempt? (and Other Mysteries of Tax Exemption for Private Educational Institutions), 35 ARIZ. L. REV. 841, 857-62 (1993) (describing methods of income measurement); Gottry, supra note 17, at 249 (explaining the "substantially related" test).
113. See John D. Colombo, Why is Harvard Tax-Exempt? (and Other Mysteries of Tax Exemption for Private Educational Institutions), 35 ARIZ. L. REV. 841, 857-62 (1993) (describing methods of income measurement); Gottry, supra note 17, at 249 (explaining the "substantially related" test).
114. See Gottry, supra note 17, at 256-58 and text accompanying nn.39-52 (discussing the criticisms of non-profits' increased commercialism).
115. See id. at 272 (discussing possible reforms).
116. See NEW SOCIAL ENTREPRENEURS, supra note 17, at 243. To achieve its mission, a non-profit may actually have to employ many that are not in its target group. See SAGAWA AND SEGAL, supra note 20, at 166 (describing Juma Venture's initial goal of hiring only atrisk youth, but "to operate profitably, the business required some stable youth in the mix").
117. See Gottry, supra note 17, at 261 and text accompanying n.71 (describing the funding sources available to non-profits).
118. Bucholtz, supra note 73, at 556.
119. See id. (arguing that non-profits contribute to the functioning of representative democracy).
120. See generally Robert D. Putnam, The Strange Disappearance of Civic America, 24 THE AMERICAN PROSPECT 34-49 (1996) (tracing declines to displacement by consumption activities).
121. See KUTTNER, supra note 41, at 354-55.
122. See Nina J. Crimm, An Explanation of the Federal Income Tax Exemption for Charitable Organizations: A Theory of Risk Compensation, 50 FLA. L. REV. 419, 445 (1998) (explaining why a non-profit start-up deserves its tax exemption); BURTON A. WEISBROD, THE NONPROFIT ECONOMY 59-60 (1998) (defining four classes of non-profits); Bruce Chapman, Between Markets and Politics: A Social Choice Theoretic Appreciation of the Charitable Sector, 6 GEO. MASON L. REV. 821 (1998) (using classical economic theory to examine contributors' motives).
123. See Nina J. Crimm, An Explanation of the Federal Income Tax Exemption for Charitable Organizations: A Theory of Risk Compensation, 50 FLA. L. REV. 419, 445 (1998) (explaining why a non-profit start-up deserves its tax exemption); BURTON A. WEISBROD, THE NONPROFIT ECONOMY 59-60 (1998) (defining four classes of non-profits); Bruce Chapman, Between Markets and Politics: A Social Choice Theoretic Appreciation of the Charitable Sector, 6 GEO. MASON L. REV. 821 (1998) (using classical economic theory to examine contributors' motives).
124. See Nina J. Crimm, An Explanation of the Federal Income Tax Exemption for Charitable Organizations: A Theory of Risk Compensation, 50 FLA. L. REV. 419, 445 (1998) (explaining why a non-profit start-up deserves its tax exemption); BURTON A. WEISBROD, THE NONPROFIT ECONOMY 59-60 (1998) (defining four classes of non-profits); Bruce Chapman, Between Markets and Politics: A Social Choice Theoretic Appreciation of the Charitable Sector, 6 GEO. MASON L. REV. 821 (1998) (using classical economic theory to examine contributors' motives).
125. See generally Mitchell v. Helms, 120 S.Ct 2530 (2000) (permitting use of federal funds in programs assisting all schools' - including religious schools in purchasing educational equipment).
126. Thomas Jefferson is usually cited for the notion that the First Amendment was intended to create a wall of separation between church and state. See Everson v. Board of Education, 330 U.S. 855, 870 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)). The Court, though, has noted that total separation is not required and not possible. See Lynch v. Donnelly, 465 U.S. 668, 672 (1984) (noting the need to reconcile the necessity of preventing government and religion from intruding upon each other with the realization that in practice, this is impossible); Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (stating that total separation is not possible and that some relationship between government and religious organizations is inevitable).
127. See MARK A. NOLL, ONE NATION UNDER GOD? CHRISTIAN FAITH AND POLITICAL ACTION IN AMERICA 67 (1988) (discussing the framers' debates when writing the Constitution). For a contrary view that the Constitution created a new secular order, see Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 197-214 (1992).
128. See MARK A. NOLL, ONE NATION UNDER GOD? CHRISTIAN FAITH AND POLITICAL ACTION IN AMERICA 67 (1988) (discussing the framers' debates when writing the Constitution). For a contrary view that the Constitution created a new secular order, see Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 197-214 (1992).
129. Especially under critique is the doctrinal framework set out in Lemon v. Kurtzman for analyzing establishment of religion challenges. At least five members of the court think Lemon should be replaced. See Lamb's Chapel v. Center Moriches Union Free Sch. Dist. 508 U.S. 398, 399-400 (1993) (Scalia, J., concurring).
130. See Mueller v. Allen, 463 U.S. 388, 399 (1983) ("It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the state to the schools themselves"). The one exception was Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), which the Court distinguished on the ground that the benefits were available only to parents of children in non-public schools. See Mueller, 463 U.S. at 398.
131. Charles Glenn advocates what he calls "positive" neutrality through which the government provides subsidies and thus can support religious entities as long as it remains neutral. He offers an analogy to the provision for conscientious objector status, which recognizes and gives special regard to individuals with sincere religious beliefs. See Glenn, supra note 4, at 77 (relying on STEPHEN V. MONSMA, WHEN SACRED AND SECULAR MIX 257-58 (1996)).
132. Charles Glenn advocates what he calls "positive" neutrality through which the government provides subsidies and thus can support religious entities as long as it remains neutral. He offers an analogy to the provision for conscientious objector status, which recognizes and gives special regard to individuals with sincere religious beliefs. See Glenn, supra note 4, at 77 (relying on STEPHEN V. MONSMA, WHEN SACRED AND SECULAR MIX 257-58 (1996)).
133. See Agostini v. Felton, 521 U.S. 203, 215-36 (1997) (neutral government program providing remedial services can include religious school sites without violating Establishment Clause); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (neutral governmental program, allowing provision of sign language interpreter for student enrolled in religious school, does not violate Establishment Clause); see also Carl H. Esbeck, No-Aid Separationism and the Establishment Clause, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 285, 298-300 (1999). See generally Monsma, supra note 5, at 8-14 (criticizing the "pervasively sectarian" standard).
134. See Agostini v. Felton, 521 U.S. 203, 215-36 (1997) (neutral government program providing remedial services can include religious school sites without violating Establishment Clause); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (neutral governmental program, allowing provision of sign language interpreter for student enrolled in religious school, does not violate Establishment Clause); see also Carl H. Esbeck, No-Aid Separationism and the Establishment Clause, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 285, 298-300 (1999). See generally Monsma, supra note 5, at 8-14 (criticizing the "pervasively sectarian" standard).
135. See Agostini v. Felton, 521 U.S. 203, 215-36 (1997) (neutral government program providing remedial services can include religious school sites without violating Establishment Clause); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (neutral governmental program, allowing provision of sign language interpreter for student enrolled in religious school, does not violate Establishment Clause); see also Carl H. Esbeck, No-Aid Separationism and the Establishment Clause, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 285, 298-300 (1999). See generally Monsma, supra note 5, at 8-14 (criticizing the "pervasively sectarian" standard).
136. See Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 EMORY L.J. 1, 20-39 (1997) (discussing the Constitutional need for more government neutrality); Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 MINN. L. REV. 1047, 1096-1102 (1996) (discussing the framers' intent in separating religion and state);
137. See Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 EMORY L.J. 1, 20-39 (1997) (discussing the Constitutional need for more government neutrality); Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 MINN. L. REV. 1047, 1096-1102 (1996) (discussing the framers' intent in separating religion and state);
138. Ira Lupu, To Control Faction and Protect Liberty: A General Theory of the Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 357, 377 (1996) (discussing the dangers of accidental religious suppression);
139. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 117 (1992) (discussing the inconsistent jurisprudence in this area). The free exercise clause is implicated here only if groups receive its protection or stand in for individuals for this purpose; the establishment clause is implicated here only if excluding religion, and creating a secular sphere, is itself viewed as an establishment of secularism as a religion.
140. See GLENN, supra note 4, at 268 (suggesting government treatment of marriage as a model for appropriate governmental neutrality).
141. See Martha Minow, Reforming School Reform, 68 FORD. L. REV. 257, 262 (1999) (discussing tuition and admission processes for parochial schools).
142. See Martha Minow, Choice or Commonality: Welfare and Schooling after the End of Welfare As We Knew It, 49 DUKE L.J. 493, 539-542 (1999) (discussing various points of possible Constitutional conflict).
143. See id. at 505-506 (calling for more civil society coupled with less public aid, as in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the Welfare Reform Act).
144. See Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334-40 (1987) (upholding exemption for religious entities from ban against religious-based discrimination).
145. See GLENN, supra note 4, at 194-95.
146. See id. at 195.
147. See id.
148. See id. at 201-208.
149. See id. at 276 (relying on MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION 128-9 (1992).
150. See id. at 276 (relying on MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION 128-9 (1992).
151. See id. at 277.
152. See id. at 150, 163-65, 178, 185, 289.
153. See ELIZABETH SCHNEIDER, VOICE AND EQUALITY: BATTERED WOMEN, FEMINIST LAWMAKING, AND LEGAL DISCOURSE (forthcoming).
154. See generally STEPHEN TOULMIN, COSMOPOLIS: THE HIDDEN AGENDA OF MODERNITY 16-17, 62, 70-71 (1990) (discussing the historical context of secular lines).
155. See Gottry, supra note 17, at 275 (discussing Trinidad v. Sagrada Orden de Predicadores, 263 U.S. 578, 581 (1924), in which the Supreme Court established the "destination of income" test for unrelated income).
156. On assisting with information, see GLENN, supra note 4, at 112; Minow, supra note 119, at 267 (discussing the need for reliable information about schools eligible for election); Rose-Ackerman, supra note 92, at 1406 (discussing proxy decisionmakers).
157. See GLENN, supra note 4, at 124,134; CHARLES L. GLENN, CHOICE OF SCHOOL IN SIX NATIONS (1989).
158. See ANTHONY BRYK, ET AL., CATHOLIC SCHOOLS AND THE COMMON GOOD 10, 51-54 (993) (discussing Vatican II and the new emphasis on pluralism in religious schools).
159. See GLENN, supra note 4, at 280-81, 293.
160. See Ikemoto, supra note 48, at 1106; see also Oklahoma Coalition for Quality of Women's Healthcare (site maintained by a coalition responding to threats to women's health posed by new business arrangements in health care, especially joint ventures with Catholic hospitals governed by the Ethical and Religious Directives of the Catholic Health Service). Lawsuits claiming antitrust violations and errors in state determinations of need are possible but messy and costly with little guarantee of success and real risks of simply reducing the sum total of health care services.
161. See Ikemoto, supra note 48, at 1106; see also Oklahoma Coalition for Quality of Women's Healthcare (site maintained by a coalition responding to threats to women's health posed by new business arrangements in health care, especially joint ventures with Catholic hospitals governed by the Ethical and Religious Directives of the Catholic Health Service). Lawsuits claiming antitrust violations and errors in state determinations of need are possible but messy and costly with little guarantee of success and real risks of simply reducing the sum total of health care services.
162. See Horace M. Kallen, Democracy Versus the Melting-Pot, in CULTURE AND DEMOCRACY IN THE UNITED STATES 67, 125 (1924) (asking whether the dominant classes in America want a pluralist or a "melting pot" society); MICHAEL NOVAK, THE RISE OF THE UNMELTABLE ETHNICS 72-78 (1971) (arguing that America is not a melting pot but a jungle).
163. See Horace M. Kallen, Democracy Versus the Melting-Pot, in CULTURE AND DEMOCRACY IN THE UNITED STATES 67, 125 (1924) (asking whether the dominant classes in America want a pluralist or a "melting pot" society); MICHAEL NOVAK, THE RISE OF THE UNMELTABLE ETHNICS 72-78 (1971) (arguing that America is not a melting pot but a jungle).
164. See NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 127-30 (Martha Minow et al. eds., 1992) (describing how various groups develop their own methods of private lawmaking, apart from the state); HAROLD J. LASKI, STUDIES IN THE PROBLEM OF SOVEREIGNTY 19 (1917) (noting that the state is only one of many normative associations to which the individual belongs).
165. See NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 127-30 (Martha Minow et al. eds., 1992) (describing how various groups develop their own methods of private lawmaking, apart from the state); HAROLD J. LASKI, STUDIES IN THE PROBLEM OF SOVEREIGNTY 19 (1917) (noting that the state is only one of many normative associations to which the individual belongs).