Cite as: 520 U. S. 564 (1997)
Scalia, J., dissenting
residency requirements for free primary and secondary
schooling, see Martinez v. Bynum, 461 U. S. 321 (1983).
If the negative Commerce Clause requires the invalidation of a law such as § 652(1)(A), as a logical matter it also requires invalidation of the laws involved in those cases. After all, the Court today relies not on any discrimination against out-of-state nonprofits, but on the supposed discrimination against nonresident would-be recipients of charity (the nonprofits' "customers"); surely those individuals are similarly discriminated against in the direct distribution of state benefits. The problem, of course, is not limited to municipal employment and free public schooling, but extends also to libraries, orphanages, homeless shelters, and refuges for battered women. One could hardly explain the constitutionality of a State's limiting its provision of these to its own residents on the theory that the State is a "market participant." These are traditional governmental functions, far removed from commercial activity and utterly unconnected to any genuine private market.
If, however, a State that provides social services directly may limit its largesse to its own residents, I see no reason why a State that chooses to provide some of its social services indirectly—by compensating or subsidizing private charitable providers—cannot be similarly restrictive.4 In fact, we have already approved it. In Board of Ed. of Ky. Annual Conference of Methodist Episcopal Church v. Illinois, 203 U. S. 553 (1906), we upheld a state law providing an in-4 It is true, of course, that the legitimacy of a State's subsidizing domestic commercial enterprises out of general funds does not establish the legitimacy of a State's giving domestic commercial enterprises preferential tax treatment. See West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 210-212 (1994) (Scalia, J., concurring in judgment). But there is no valid comparison between, on the one hand, the State's giving tax relief to an enterprise devoted to the making of profit and, on the other hand, the State's giving tax relief to an enterprise which, for the purpose at hand, has the same objective as the State itself (the expenditure of funds for social welfare).
605
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007