The License of Religious Groups to Discriminate In Choosing Leaders

[Lawrence Sager]

Brooks R. Fudenberg suggests that Chris Eisgruber and I cannot fully
account for the license of religious groups to discriminate in choosing
leaders by invoking general notions of what must remain private:

>I like the idea that this is merely an extension of general individual
>privacy rights.  But I suspect that organized religion IS, nevertheless,
>being valued in some special way.  After all, a major league baseball team
>would not be allowed to refuse to hire black players--even though, as
>fans, we can pick and choose which players we follow, and, as fans, can
>choose to root for the Jewish player, or the white player.  So why is
>religion different?  Perhaps the answer is that pro baseball is a
>money-making institution.  But I do not think non-profit organizations,
>other than religion, are allowed to hire based on race and religion.
>Indeed, to do so is grounds to lose one's tax-exempt status (Bob Jones
>University v. US).  So why are these personal privacy rights extended only
>to churches?  I suspect the answer has something to do with religion,
>specifically, and not privacy, generally.  Am I mistaken?

This is an interesting challenge.  I think our response is this:  the point
about organized religion is that it recreates in an institutional setting
just the sort of mentor/mentee guide/guided relationship that we so
strongly commend to personal choice in the institutional setting;
furthermore, for the persons who find their inspiration and guidance in the
setting of an organized religion, the destruction of their ability to do so
would be formidible -- quite possibly fatal -- barrier to their ability to
shape their lives in this respect.  Baseball fans have no serious trouble
in routing for the white or Jewish players of their choice, notwithstanding
the application of strong anti-discrimination principles to the baseball
leagues.  So, on the hypothesis that player/fan relationship is private in
the strong sense we try to invoke, that relationship does not demand that
freedom of private choice be projected into the institutionalized, public
setting of team and league composition.

On this account, religion is not necessarily unique in its inheiritance of
rights of individuals to independence in some settings.  Imagine an
entirely secular version of the Promise-Keepers -- call them the Men's
Moral Renewal Movement; or imagine a non-religious group of women
ideologically committed to the view that only the things women think about
women matter.  Both groups, I assume, have the right to insist that their
"President" or "Chief Guide" or whatever be gender appropriate.  Eugene
gestured towards this idea with his reference to freedom of association.
But on this account, the privateness of choice is in some cases projected
into the association so that it can survive in an inportant environment for
its realization; the association does not generate the right.

--Larry Sager