RFRA and exclusion of antidiscrimination law

[Michael McConnell]

Eugene Volokh writes:

>      I agree that there is, even post-Smith, a *constitutional* right of
> churches to select the clergy free from the restraints of
> antidiscrimination laws.
>
>      But why does this lead to the conclusion that it would be bad for
> *RFRA* to exclude such laws?

Two points.

First, the survival of the absolute right to choose clergy is an
inexplicable anomaly after Smith. Nothing in the logic of Smith
suggests that generally applicable employment laws cannot be applied
to churches. We should not be content to rely on anomalies: this
anomaly could go away, and there may well be other anomalies that
should be recognized but aren't.

Second, and more generally, the clergy exception to Title VII is
evidence that a strong consensus agrees that there is no automatic
priority of anti-race discrimination norms over religious freedom
norms. (Remember, we are talking about *statutory* antidiscrimination
law, not constitutional requirements.) Sometimes anti-race
discrimination norms should prevail; sometimes religious freedom
should prevail. Clergy selection is not the only matter where this is
true.  What is the principled justification for giving anti-race
discrimination norms absolute priority?

And let me add a pragmatic consideration. There often are good
arguments to give  anti-race discrimination norms extraordinary
force, in light of the fact that slavery/segregation was the
greatest single defect in our original constitutional order. But as
soon as that principle is established, other groups with legitimate,
but lesser, claims of discrimination come crowding into the tent. So
if race discrimination norms are given absolute priority, it is
politically inevitable that norms involving sex discrimination,
ethnic discrimination, age discrimination, disability, and sexual
orientation -- and others-- will not be far behind. And each will be
given an expansive interptetation. Sex discrimination, for example,
will be stretched to mean a right to an abortion, or to same sex
marriage. Disability discrimination will be stretched to compel a
certain ideology regarding alcoholism and drug abuse (these will be
said to be diseases and not sins). Race discrimination law, in its
disparate effect mode, can compel race-conscious decisionmaking. And
so forth. When religious discrimination is added to the mix, the
effect is particularly devastating.  For all its worthy beginnings,
discrimination law is the most potent legal weapon of modernists in
the culture wars.
-- Michael McConnell (U of Utah)