FW from Rick Garnett: Re: Religious organizations' religious discrimination andgovernment funding

[Volokh, Eugene]

> -----Original Message-----
> From: rgarnett at nd.edu [mailto:rgarnett at nd.edu] 
> Sent: Thursday, September 23, 2004 6:35 PM
> To: Volokh, Eugene
> Subject: Fwd: Re: Religious organizations' religious 
> discrimination andgovernment funding
> 
> Dear all,
> 
> I'm coming late to this discussion, but it is not clear to me 
> (and was not clear to me when, for example, Yale Law School 
> refused to let the Christian Legal Society interview on 
> campus, citing its "discriminatory" policies) that the 
> decision of a religious community to exclude those who do not 
> profess that community's shared statements of faith can 
> usefully be called "discrimination."
>  
> 
> Certainly, it could well be, as Marty says, that the 
> non-discrimination provision at issue in the case being 
> discussed is , on its face, generally applicable and 
> "neutral" with respect to religion.  But isn't it (something
> like) a "category mistake" to treat "the Christian Legal 
> Society's exclusion of non-Christians" like, say, BigCorp's 
> refusal to hire African-Americans, NiceState University's 
> refusal to admit women, etc.?  Yes, it *would* be 
> "discrimination on the basis of religion" for a 
> (non-religious) law school to deny admission to 
> non-believers; but it strikes me that the "discrimination" 
> label fits awkwardly with the kind of "exclusion" at issue in 
> the CLS (and
> similar) cases.
> 
> Best,
> 
> Rick Garnett   
>