ENDA and religious exemptions

[Andrew Koppelman]

I'd like to draw out the basis of Mark Graber's "instinctive view," which
many people probably share.  Just why would it be so bad to allow
religiously based discrimination on the basis of race or sex?  If there
were few religiously motivated discriminators, then one would expect that
the discrimination would have no effect on the wages of blacks and women,
which would be bid up to the same level they would have reached absent the
discrimination.  If the discrimination doesn't hurt those discriminated
against, then why is the state's interest in prohibiting that
discrimination "compelling"?  Mark, do you believe that the number of
employers invoking this exception would be more than trivial?  One could
argue that the case against exemptions is *stronger* in the case of sexual
orientation than in the case of race or sex, because a larger proportion of
the market would be inclined to invoke the exemption if given the opportunity.



At 09:29 PM 10/10/97 EDT, you wrote:
>Would we also want persons with religious sensibilities to be able to
>discrimination on grounds of race or gender?  My instinctive view
>(i.e., not very well thought out) is
>that federal anti-discrimination law of any sort ought not to apply
>to religious organizations (barring demonstration of strict
>scrutiny), bu that no exceptions ought to be made for religious
>employers who own secular businesses.
>
>MAG
>
Andrew Koppelman
Assistant Professor
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu