More on funding religious groups on campus

Fri Sep 24 03:21:23 PDT 2004

I agree with Doug (and with Rick Garnett) that, at least in some circumstances, religious "communities" ought to be able to exclude those who do not profess that
community's shared statements of faith.  I also agree with Doug that it is perfectly permissible, and desirable, to carve out "coreligionist" exemptions for religious organizations from certain antidiscrimination laws.  It can be easier said than done, however.  As we've learned from experience with title VII, it's quite difficult to define which "religious organizations" should be entitled to such exemptions, and which should not, and sometimes difficult to explain why those groups, or employers (or individuals) who fall outside the exemption should not also be entitled to discriminate when their discrimination, too, is religiously motivated.  It's also difficult to define the scope of the exempted discrimination.  What if the tenets of the religious organization also call for race, or sex, or pregnancy discrimination?  (Title VII's exemption does not extend to such forms of discrimination, even for groups that are entitled to prefer coreligionists.)  Or for discrimination against gays and lesbians in a community that ordinarily proscribes such discrimination?

That is to say:  Even if Rick is correct that it's a "category mistake" to treat the Christian Legal Society's exclusion of non-Christians like "BigCorp's refusal to hire African-Americans, [or] NiceState University's refusal to admit women," nevertheless it's often very difficult to identify the pertinent categories.  Actually, Rick's examples identify the easily distinguished categories -- profit-making enterprises (only "big" ones, Rick?  how big?), and state actors.  But when it comes to private nonprofit groups, desired forms of discrimination -- including racial, sex, pregnancy, sexual orientation, and "invidious" religious discrimination (e.g., anti-semitism, anti-Catholicism) -- are often, perhaps usually, motivated either by religion or by a desire to maintain ideological orthodoxy or consistency.  Cf., as always, Runyon v. McCrary.  And no school or government is ever willing to grant an exemption broad enough to cover all such forms of ideological and religiously motivated discrimination.

The distinctions become even more difficult to draw when the question becomes the use of government money or facilities, rather than (as in title VII) simply internal governance and membership.  What if the state school truly does wish to fund only those groups that are open to the entire student community, and the question is not simply a group's exclusion of students from the church, synagogue or mosque, but excluding them from the school-funded activity?  This is why the exemptions, religious and otherwise, from antidiscrimination funding and access conditions (e.g., titles VI and IX) are often (but not always) narrower and harder to come by than the exemptions in classic prohibitory antidiscrimination statutes (e.g., title VII).  See, for example, the voucher program upheld in Zelman, in which participating private schools must agree not to discriminate on the basis of religion (a rule that might apply to faculty as well as to students) or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion."

None of which is to say that religious exemptions should not be crafted -- only that the job of doing so is treacherous.

Where I depart from Doug, I think, is in his suggestion that such exemptions are constitutionally required.  Beyond the ministerial exemption, the law has not typically reflected such a notion.  Before the 1972 amendment to title VII, for example, the religious exemption in that statute did not cover all employees of exempted religious organizations -- but it was not unconstitutional because of its narrow scope.  More to the point, many, if not most, funding and access statutes do not include such exemptions (or the exemptions are very narrow), and they are not, for that reason, unconstitutional.  For example, perhaps it would be constitutional to permit coreligionist discrimination by recipients of "charitable choice" funds -- although I think that the question is very difficult, and turns largely on a case-by-case assessment of the way in which the government decides which organizations to fund.  But surely a government is constitutionally entitled to insist -- as many state and local governments do -- that funding recipients not discriminate with government funds, period (including in favor of coreligionists).

  ----- Original Message ----- 
  From: Douglas Laycock 
  To: conlawprof at lists.ucla.edu 
  Sent: Thursday, September 23, 2004 6:28 PM
  Subject: Re: More on funding religious groups on campus

          The issue is quite common; it has arisen at campuses all around the country.  It is easy to see how the rules got drafted to inadvertently cover this; people were copying the main provisions of the civil rights laws, not reading the whole statute (where Congress carved out the needed exceptions), and not thinking about churches.  It is much harder to understand why so many bureaucrats are so mindless, or so hostile to religion, as to not be able to understand the difference between excluding people of other faiths or of none from the country club and excluding them from the church, synagogue, or mosque.

          When I chaired a committee to redraft free speech rules at the University of Texas, we quietly fixed the problem here.  The new Texas provision allows religious groups to require a statement of faith for officers and voting members.  

          A rule banning discrimination on the basis of religion may be generally applicable in the sense of applying to everyone, but it is not religiously neutral; religion is an element of the rule and an element of the behavior regulated by the rule.  As applied to secular organizations, this is not troublesome; although drafted in religious terms, it does not burden religious exercise.  As applied to religious organizations, it is drafted in religious terms and it does burden religion.  It is not saved by the fact that we also ban discrimination on the basis of race, sex, and national origin; it is at least as relevant, and more analogous, that we do not ban discrimination on the basis of political viewpoint.  So all the political organizations on campus, and the much smaller number of anti-religious organizations, can enforce ideological purity, but the religious organizations on many campuses cannot.  

  At 03:50 PM 9/23/2004, Kevin T. McGuire wrote:

    We face a very similar situation here at the University of North Carolina.  Recently, a Christian fraternity was denied recognition as a campus organization --- and thus denied access to campus funds --- because of its refusal to sign the university s non-discrimination policy, which prohibits  campus groups from excluding potential members on several bases, including religion.

    The University maintains that it is bound by various federal and state laws not to discriminate, while the group claims that, by being forced to accept those who don't share their faith, its First Amendment right of association is being abridged.

    In some ways, it is similar to the situation presented in the Roberts and Rotary cases, but those dealt with large, amorphous organizations with no distinct viewpoint.  This is a small (only 3 members at present) fundamentalist group, and admitting non-adherents would probably undermine its message.  In light of Boy Scouts v. Dale, which I read to suggest that the state cannot apply anti-discrimination law against a group if doing so would undermine that group s basic message, it seems to me that the fraternity probably has the more solid argument.

    Does that strike others as sensible, or are there other issues that one ought to consider here?
    -- 
    Kevin T. McGuire 
    Associate Professor 
    Department of Political Science 
    University of North Carolina at Chapel Hill 
    Chapel Hill, NC   27599-3265 

    Telephone 919-962-0431      FAX 919-962-0432 
    Email: mcguire at unc.edu      Web: http://www.unc.edu/~kmcguire 
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  Douglas Laycock
  University of Texas Law School
  727 E. Dean Keeton St.
  Austin, TX  78705
          512-232-1341 (voice)
          512-471-6988 (fax)
          dlaycock at mail.law.utexas.edu 

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