Beliefs and Principles

[Marty Lederman]

Boy, I can't imagine what I might have written that might have left such
impressions.  But it must've been something, to have misled Doug like that.

I do not "think that religious employers can insist on religious identity but
not on religious belief."  I did not assert that "the Salvation Army can
insist that employees say they are Christian, but cannot ask what they
believe, or if their Christianity matches the Salvation Army's."  I don't
believe that the Baptist Church can ask applicants for employment only "if
they are Christian," and not "if they are Baptist."  I do not think the EC
prohibits an exemption that would allow the Catholic Church to refuse to hire
the op-ed writer.  In fact, I made no statements at all concerning any
constitutional questions (other than, at the end of my post, to repeat Prof.
Brownstein's question about whether the EC permits antidiscrimination
exemptions for religious organizations with respect to those employees who are
performing the functions for which state funding is provided).  And the only
employees I was discussing are those who would be performing the secular
functions for which governmental funding is provided.

The issue Alan Brownstein raised was whether, a state, if it generally
requires funding recipients not to discriminate on the basis of religion among
its employees who administer the federally funded program, can allow an
exemption to that antidiscrimination requirement for religious organizations
who are funding recipients.  Part of Tom Berg's response (as I understood it)
was that, if a state did *not* provide such an exemption, then religious
organizations would be treated *worse* than other funding recipients, since
those other recipients, but not religious organizations, allegedly may
discriminate on the basis of employees' "commitments to [the organizations']
beliefs and principles."  My post was simply intended to suggest that, even
without an exemption for religious organizations, such organizations would not
be disadvantaged (at least not formally) relative to secular recipients.  As a
matter of *statutory* law, all of them -- the Sierra Club and the Salvation
Army alike -- *may* discriminate on the basis of employees' principles, but,
*absent* a religious-organization exemption, none of them may discriminate on
the basis of employees' religious status, religious conduct, or religious
beliefs.  Thus, when the state does grant such an exemption, it is giving
religious organizations something that other funding recipients do not get --
the right to discriminate against employees who do not share a particular
religious status or belief, even as to jobs that involve no religious
activities.  I think it's a difficult question -- about which Profs.
Brownstein and Berg have offered some tentative thoughts -- whether and under
what circumstances that preferred treatment for religious organizations is
constitutional.

That's all.  Does that make more sense?

Marty Lederman
(in my personal capacity)


Doug Laycock writes:

   Marty, I have no idea what distinction you are trying to draw between
beliefs and principles.  And I have no idea why you think that religious
employers can insist on religious identity but not on religious belief.

        If I understand you correctly, the Salvation Army can insist that
employees say they are Christian, but it cannot ask what they believe, or
if their Christianity matches the Salvation Army's.  Right?  Can a Baptist
Church ask if they are Baptist, or only if they are Christian?

        There was an op ed in the Times a couple of weeks ago by a guy who
insisted he was a Christian, but that the teaching that Jesus died for our
sins and those who believed would be saved that way was as dead as dodos or
buggy whips or some such metaphor.  He was very put out that the Pope's
recent encyclical thought there was some tension between post-modernism and
Christianity.  He thought the Pope was defining Christianity in a narrow
and self-defeating way.

        Marty, if this guy applies for a job with the Catholic Church, in a
jurisdiction with religious discrimination laws, do you really think the
Establishment Clause forbids an exemption that would allow the Church to
look past his self-identification?  And do you really think that is clearly
settled in current law?