John H. Garvey

Freedom and Equality in the Religion Clauses

The Supreme Court has been extremely puzzled about how to treat the distribution of public benefits when the pattern of distribution may cause individuals to alter their preferences in making constitutionally protected choices. When dealing with the freedom to choose an abortion, for example, the Court held that the Hyde Amendment was constitutional because the government did not interfere with freedom when all it did was offer money to make the option it preferred (childbirth) more attractive.I In free speech cases, the Court has said that when the government opens up public property or offers financial incentives to speakers it must treat all options equally-it may not favor a particular subject or position.2 Last term, in Thomas v. Review Board,3 the Court held that when freedom of religion is at stake, the government has an independent obligation to fund the option which the individual finds more attractive. The case directed the state of Indiana to pay unemployment compensation to one who quit his job for religious reasons, even though the state paid nothing to those who quit for other personal reasons. The allocation of public funds has created similar

Freedom and choice in constitutional law.

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind - freedom, which protect the right to make choices - pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire notion that all persons (including incompetents) are to be treated identically, the instrumental idea that granting freedoms to incompetents achieves extrinsic goals such as training, and the surrogate notion that persons who cannot make choices for themselves should be able to have those closest to them choose on their behalf. Professor Garvey concludes that, when these options fail and the state takes an incompetent person under its control, the state owes to the incompetent the full package of duties owed by other guardians to those under their control, including treatment in the case of the mentally ill or education in the case of children.