Of Government Funding, Religious Institutions, and Neutrality: Seeing the Charitable-Choice Debate through the Lens of Arrow's Impossibility Theorem

Should religious groups receive government funds to provide social services on the same terms as secular organizations? If so, should religious groups give up their unique statutory rights to discriminate in hiring and to avoid other forms of regulation with respect to the use of those funds? These two questions now dominate academic discussions of charitable choice and, more generally, discussions about the funding of religious institutions. Law-and-religion commentators are sorely divided on how to answer them. Some believe religious groups should not be funded at all (the "no funding" position). Some believe that religious groups should be funded and should keep their usual rights to discriminate in employment as well as other aspects of their deregulated status (the "deregulated funding" position). And still others believe that religious groups should be funded and should not keep the right to discriminate (the "regulated funding" position). As the piece explains, the availability and adoption of these three positions has created a Voter's Paradox (or, alternatively, an application of Arrow's Impossibility Theorem). Just consider the following scenario, which is not at all hypothetical: Douglas Laycock prefers that religious groups be funded equally to secular groups, but only if religious groups retain the right to discriminate and other deregulatory benefits. If such deregulation is impossible, Laycock would prefer that funding not occur at all. Steven Green believes that religious groups should not be funded, but believes that if they are funded, they must be regulated. Lastly, Martha Minow would fund religious groups, but would ideally prefer that they be regulated. When presented with these three funding choices, our panel of distinguished academics not only fails to reach a consensus backed by a majority of votes - it fails to reach any consensus at all. Laycock and Minow would prefer the deregulated-funding position over the no-funding position. Minow and Green, however, would then combine forces to move to the regulated-funding position. But, at that point, Laycock's support for charitable choice would collapse - and he and Green would return the group from the regulated-funding position to the no-funding position where they started. At that point, the process begins again; in theory at least, these three voters would cycle endlessly between the options. And no matter what resolution is ultimately reached, a majority exists that would have chosen differently. In such a case, democratic decision-making will have broken down. Using this example as a starting point, the piece goes on to explain the charitable-choice debate as an ideal exemplification of Condorcet's Voter's Paradox and of Arrow's Impossibility Theorem. It explains how the problem has developed (through our many conflicting notions of neutrality that cannot be aligned on a one-dimensional spectrum), and explains how the conflict may yet be resolved (through the rise of strategic voting and agenda setting that could minimize the risk of cycling). Ultimately, the piece attempts both to shed light on the charitable-choice debates through the conceptual apparatus of Arrow's Impossibility Theorem as well as to refine our understanding of Arrow's work through the salient example of charitable choice.