Religious equality

[Volokh, Eugene]

        I appreciate Alan's detailed and deep response, and very much
look forward to hearing his paper at the AALS panel.  Let me just make a
few fairly unconnected remarks:

        1.  I agree that there's value to nuanced examinations and costs
to formal rules, but when one is talking about constitutional law --
especially in an area where people may suspect the courts themselves of
religious bias -- it seems to me quite important to have some rules
somewhat clearer than those discussed below.  I don't demand
mathematical precision, but it seems to me that what is mentioned below
is even less precise than the norm in con law cases.

        2.  As I understand it (and, Alan, please correct me if I'm
wrong), Alan's argument is that these lurking risks of substantive
inequality mean that formally evenhanded school choice programs are
generally unconstitutional.  But if the rule is substantive equality,
how can we ignore the deep substantive inequality created by the current
system, which seems to me to create even more substantive inequality
among sects than the inequalities that Alan complains about?  (I say
"seems to me" in part because substantive inequality is very hard to
measure, especially given the vague standards suggested below -- itself
an argument against this sort of substantive equality approach.)

        3.  The quid pro quo argument -- "a very rigorous stand in favor
of free exercise exemptions and couple that with strong concerns about
the funding of religious institutions and activities" -- strikes me as a
bit odd.  Even if "religion as a whole" benefits from both prongs of
Alan's stand, what reason do we have to think that each religious group
-- or for that matter that each American -- will get both the quid and
the quo?  And if they don't, it'd be a very odd sort of quid pro quo,
one that I don't think could justify Alan's ultimate bottom line (though
perhaps some other argument might).

                4.  Finally, as to Alan's
no-funding-for-activities-that-discriminate-based-on-religion, I take
the latest version of the argument -- that it's improper for "private
conduits of public funds to discriminate on the basis of religion in
hiring staff to perform publicly funded secular functions" -- to mean
that Catholic hospitals can't get Medicare funds if they discriminate
based on religion (e.g., in favor of nuns) in hiring doctors or nurses;
that Pell grant funds can't be used at religious universities that
discriminate based on religion in hiring professors; and that synagogues
or churches that operate soup kitchens can't get evenhanded government
assistance if some of the people hired to help in this effort were hired
in part based on their religion.  Alan, is that right?  Can that be
right?



> -----Original Message-----
> From: A.E. Brownstein [SMTP:aebrownstein at UCDAVIS.EDU]
> Sent: Thursday, November 05, 1998 6:35 PM
> To:   RELIGIONLAW at LISTSERV.UCLA.EDU
> Subject:      Religious equality
>
>         Let me give a brief and partial response to Eugene's very
> thoughtful post (and at the same time reply to Michael McConnell's
> shorter inquiry.)
>
>         The very brief answer is that I don't have all the answers on
> this issue. I have been thinking about the problem of religious
> equality for a long time and I'm still not sure what I think
> constitutional doctrine should look like here.
>
>         Having said that, it does seem clear to me that there is a
> very broad continuum of possible doctrinal rules dealing with unequal
> effects that stretch from a very rigid version of formal neutrality at
> one pole to a complete rejection of any state action that
> disproportionately burdens members of any religious group at the
> other. I think the right constitutional answer is somewhere in the
> middle. But its not easy to develop workable doctrinal rules to
> describe that position. (Let me add here that I don't think it is at
> all surprising that constitutional doctrine dealing with interests as
> important and complex as religious liberty and religious equality
> can't be defined in terms of a single rule or standard or two. Free
> speech doctrine may be unreaonably complicated today, but I sometimes
> think that cases and commentary err too much in the opposite direction
> when the religion clauses are interpreted. There is a sense that one
> or two simple rules should be able to resolve every problem. I don't
> think that is true.)
>
>         What I can do here is to identify some specific locations on
> the continuum that I believe are worth thinking about. Unequal effects
> may occur in the following situations:
>
>         1. Certain neutral rules allocating benefits may substantially
> limit the benefit's availability to members of particular religious
> faiths because the criteria employed to determine who is eligible to
> receive the benefit directly conflicts with the tenets of a group's
> religious faith. For example, suppose the state decides that we need a
> six day school week and it will provide direct grants to, or only
> allow school vouchers to be used at, schools that are open on
> Saturdays. The unequal effects of this policy are obvious. This policy
> would not be constitutionally problematic to an advocate of formal
> neutrality any more than its regulatory equivalent, a law requiring
> students to attend school six days a week including Saturday, would
> be. (I'm ignoring the hybrid rights exception to Smith here.) There
> are obviously plenty of other examples that could be used here.
>
>         2. The criteria used to allocate benefits may not directly
> conflict with the tenets of a particular group's faith, but the
> criteria may substantially skew the allocation of benefits among
> faiths as an indirect result of the beliefs, practices and size of
> different religions. Two possible variables here are efficiency
> (including cost) and size. For example, the state may decide that it
> will only award educational grants to schools that achieve a certain
> level of cost efficiency. But the religious beliefs and practices of
> some faiths may increase the costs of their educational programs
> relative to the programs provided by other faiths. Also, economies of
> scale may enable larger faiths to offer educational services at a
> lower cost per student. This kind of criteria may end up precluding
> the religious schools of some faiths from obtaining grants.
>
>         Alternatively, assume the state decides that it does not want
> badly operated fly-by-night schools to spring up and take advantage of
> people with vouchers to spend. Rather than spend the time and money
> necessary to independently evaluate the quality of the schools
> receiving vouchers, the state decides to only allow vouchers to be
> used at schools with at least 300 students. Under a policy of this
> kind, minority faiths in many communities would not be able to spend
> their vouchers at religious schools of their faith. There simply will
> not be enough children of a minority faith in many community to allow
> for the creation of a religious school with 300 students. (These are
> only examples that serve as clear illustrations of the point. I'm not
> suggesting any state would adopt such a law.)
>
>         A formal neutrality analysis would not find anything
> problematic about these policies dispite the fact that they might
> prevent certain religious groups from receiving state support for
> their religious schools. Under a formal neutrality model, state
> standards of dubious value or importance that substantially interfere
> with the ability of different religious groups to obtain state support
> for their religious schools would be routinely upheld.
>
>         3. A variation of the size problem relates to different
> educational interests of different religious groups. I am not thinking
> here of the broadly recognized disproportionate impact that may result
> from the fact that some faiths are more interested in having religious
> schools than other faiths. Obviously more educational subsidies will
> end up in the religious schools of faiths that are interested in
> creating religious schools. I'm thinking more about the effect on the
> members of certain faiths who want to send their children to religious
> schools even though many members of their faith do not.
>
>
>         I think there may be an analogy here to the problem of single
> sex schools. What do we do if many more girls, for example, want to
> attend single sex schools than boys. One formal vision of equality
> suggests that we allocate a certain amount of money per pupil and see
> if enough members of either gender want to attend a single sex school.
> If enough girls want to attend a single sex school so that our per
> pupil subsidy is sufficient to allow the state to operate a quality
> single sex school, we create such a program for girls. If not enough
> boys want to attend a single sex school so that our per pupil subsidy
> is not sufficient to allow the state to operate a quality single sex
> school, we do not create such a program for boys. The lack of demand
> for the boy's school justifies the inequality in offerings,
> notwithstanding the fact that those boys who want to attend a single
> sex school in a real sense are being treated less favorably than girls
> with similar educational interests.
>
>         An alternative model of equality requires the creation of a
> boy's single sex school too -- even if that requires a higher per
> pupil expenditure for each boy at the school because of its limited
> enrollment. There is going to be some substantive inequality under
> either model. Either boys who want to attend a single sex school will
> be denied an educational alternative that is available to girls -- or
> boys attending a single sex school will receive higher per pupil
> subsidies than girls attending a single sex school.
>
>         I think I would probably opt for the latter choice (I'm not
> sure but I think so.) If we are going to have single sex educational
> institutions, perhaps we have to work hard to make them available to
> everyone who wants to attend one even if that ends up costing us more
> as a community and provides some students a higher subsidy. Similarly,
> if we are going to allow public funding of religious schools (and I
> obviously have serious misgivings about doing so) I think we may have
> to take extra steps to insure that all parents who want to send their
> children to a state subsidized religious school have something like an
> equal opportunity to do so.
>
>         4. Other kinds of unequal effects are more attenuated or
> abstract but may be very important in the long term. I think there is
> an integrative principle in the American vision of equality. The
> fragmentation of public life and public services along religious lines
> can contribute to the de facto religious segregation of American
> communities. Ultimately, I think that such a result undermines
> religious equality and jeopardizes the religious liberty of
> minorities.
>
>         The consequences of any substantial allocation of employment
> opportunities along religious lines also creates unequal effects. It
> may be that religious discrimination in employment can not be fully
> and effectively analogized to either belief discrimination or message
> discrimination (under a Free Speech rubric) or status discrimination
> (under an equal protection rubric), and that it is somewhere between
> the two. But certainly there is a significant status dimension here
> that can not be ignored. Moreover, I think our normative sense of
> equality arises out of our history and culture. Certain kinds of
> decisionmaking and discrimination are identified as unacceptably
> unequal because of power inequalities and because of historical
> abuses. To my mind, authorizing private conduits of public funds to
> discriminate on the basis of religion in hiring staff to perform
> publicly funded secular functions has a particular meaning in this
> country because of our history, (and our demographics, geography and
> socio-economic framework) in the same way that discrimination in
> hiring on the basis of race does. (I'm not arguing that racial
> discrimination and religious discrimination are equivalent here, but
> rather that the constitutional treatment of both racial and religious
> discrimination are derived from a complex historical context that
> gives both froms of discrimination special meaning.) A policy that
> allows large employers spending public funds to say "We do not hire
> Jews" or "We only hire Protestants" can have substantially unequal
> real world consequences for the job opportunities of members of
> minority faiths and it has a cultural impact that affects the status
> of religious groups in our society.
>
>         4a There are, of course, a lot of important subsidiary
> doctrinal issues here that will influence whether or not we ever get
> to the actual issue of unequal effects on the merits. Some unequal
> effects may not be the result of state action (although if there was
> state action when Congress exempted religious organizations from Title
> VII's ban on religious discrimination in hiring, I would think there
> is also state action if that exemption is extended to cover the use of
> state funds by religious organizations to offer secular services.) The
> issue of indirect and attenuated subsidies through individual
> decisionmaking, vouchers, Pell grants, Medicare payments, and the like
> may also limit the analysis. I think the problem with a subsidy system
> that only provides funding to schools that are open for six days each
> week including Saturdays isn't avoided if the restriction is applied
> to the use of vouchers. But the legitimacy of using vouchers to
> purchase an education at a school that discriminates on the basis of
> religion in hiring may raise a very different problem. I also don't
> have an easy answer to the question of how we should review
> constitutionally congnizable unequal effects (that is, what kind of a
> state showing would justify such an impact.) My point is that it is
> not acceptable to simply ignore unequal effects in our constitutional
> analysis as a formal neutrality standard does. That doesn't mean that
> all state action resulting in unequal effects among religious
> individuals and groups is unconstitutional.
>
>
>         5. Finally, with regard to Eugene's question in Part 2 below
> as to whether I think discrimination against religious institutions in
> the award of funding creates unequal effects and distorts the
> marketplace of ideas -- I probably subscribe to what Sager and
> Eisgruber describe in a recent article as a quid pro quo
> interpretation of the religion clauses. I take a very rigorous stand
> in favor of free exercise exemptions and couple that with strong
> concerns about the funding of religious institutions and activities.
> Taken as a whole, I think this model comes close to evening out what
> would be unequal effects viewed independently and it also, arguably,
> minimizes the distortion of the marketplace of ideas.
>
>         (Shameless plug -- The paper I'm going to deliver at the AALS
> Law and Religion Section meeting in January deals with some of these
> issues in more detail.)
>
>
> Alan Brownstein
>
> UC Davis
>
>
> I appreciate Alan's eloquent defense of a Sherbert/Yoder
> >religious freedom principle, and though I disagree with it I won't do
> so
> >again here.
> >
> >                But even if one rejects formal equality in religious
> >freedom cases in favor of some other standard, it seems to me that
> >formal equality in Establishment Clause claims is considerably more
> >appealing:
> >
> >                (1)  While "free exercise" can quite plausibly be
> read
> >as securing a liberty right, and not just as an equality right, it
> seems
> >to me that "establishment of religion" is most sensibly read as
> >requiring some sort of favored treatment.  Equal treatment, whether
> or
> >not it's enough to satisfy the command of respecting free exercise,
> just
> >isn't "establishment" -- by treating religious institutions exactly
> the
> >same way as nonreligious institutions, it seems to me that we aren't
> >establishing anything.
>
>
> >
> >                (2)  In the Free Exercise Clause context, the
> "unequal
> >effects" theory ends up being relatively manageable, because it isn't
>
> >just unequal effects.  Few people, for instance, argue that the Free
> >Exercise Clause should, for instance, cast into doubt government
> >subsidies for beef on the theory that they have a disparate impact on
>
> >vegetarians and Hindus.  I think when Alan is complaining about
> unequal
> >effects, he's referring to unequal effects that substantially burden
> >religious exercise, something that (especially if further limited to
> >prohibitions on religiously motivated conduct or compulsions of
> conduct
> >which there's a religious motivitation to avoid) is relatively
> cabined.
> >
> >                But how do we determine whether, say, an evenhanded
> >school choice program that includes religious schools has "unfair and
>
> >unequal effects"?  (This, I take it, is what Michael McConnell was
> >asking about in his earlier message asking Alan to clarify the first
> >paragraph quoted below.)  Do we look at whether the majority of the
> >private school beneficiaries are religious schools (and if so, why a
> >majority)?  Or do we look at whether the majority of the
> beneficiaries
> >of government-supplied education are religious schools (the answer
> there
> >being absolutely not)?  How do we decide what baseline to use here?
> >
> >                Conversely, how do we determine whether a school
> choice
> >program that includes public and secular private schools but not
> >religious schools has "unfair and unequal effects"?  Under a formal
> >equality model, such a program is unconstitutional.  I'd further say
> >that even under an "effects" test, the program is "unfair and
> unequal"
> >because it has a disproportionately negative effect on religious
> schools
> >(which get zero benefits) as opposed to secular schools (which get
> lots
> >of benefits).  Likewise, under a "distorting effect of . . .
> subsidies
> >and lack of subsidies on the marketplace of ideas" test, such a
> program
> >would certainly fail.  Alan, do you take a different view?  If so,
> how
> >would you justify it under your "unfair and unequal effects" inquiry?
>
> >
> >                I suppose there might be some cases where an "unfair
> and
> >unequal effects" test is more clear and more appealing to those who'd
>
> >set aside facially evenhanded aid programs under the Estab Cl, though
>
> >I'm hard put to come up with any off the top of my head.  But in most
> of
> >the hot cases, the test seems to me to be either hopelessly vague, or
>
> >actually *more* sympathetic to inclusion of religious institutions.
> In
> >fact, under an unfair and unequal effects test (or a distorting
> effect
> >on the marketplace of ideas test) -- but not under a formal
> neutrality
> >test -- one can make a credible argument that funding only public
> >schools is unconstitutional, and that the government therefore must
> >offer school choice that includes religious schools.
> >
> >
> >