Free Exercise Clause, freedom of association, and hard-core "no p reference for religion" judges

[A.E. Brownstein]

         I think a lot might turn on whether the ministerial exception or
other rights enjoyed by religious individuals and institutions are viewed
under a free speech and freedom of association rubric or a free exercise
analysis.

         If religious institutions are defined as expressive associations
for the purpose of securing them  constitutional rights to be free from
intrusive regulation (e.g. the right to select individuals for leadership
positions), can they shed that characterization if they receive legislative
exemptions from regulatory burdens that are not constitutionally required.
I think it might be difficult for an organization to claim the status of an
expressive association for the purpose of asserting constitutional rights
while insisting that it has a different status for the purpose of receiving
politically determined accommodations or exemptions.

         In the context of individual or associational expression, the
state can not discriminate on the basis of viewpoint and is often
prohibited from discriminating on the basis of content. If religious
congregations and the houses of worship where they assemble are recognized
as generic expressive associations rather than religious institutions with
unique constitutional status, does that mean that all accommodations of
religion have to be provided to secular institutions that have some
expressive dimension to them (or all non commercial, private associations).
Would it be unconstitutional, for example, for a community to treat a house
of worship more favorably than a fraternity house (allegedly committed to
promoting some expressive goal) in its land use regulations?

                                                         Alan Brownstein
                                                         UC Davis


At 12:30 PM 03/01/2000 -0800, you wrote:

>                 Marty raises an excellent question.  My sense is that
> this argument might well appeal to people who take a hardcore "you may
> not give any preference for religion" approach; Justice Stevens might be
> such a person, at least in many contexts, or so his Boerne concurrence
> suggests.  Thus, *if* Stevens takes this view (uncertain) and if he
> thinks that the Catholic Church should be free to select its clergy
> without regard to antidiscrimination law (likely), then he might come to
> accept that all nonprofit expressive associations (or maybe even all
> expressive associations, period) should be free to select their leaders
> and sub-leaders without regard to antidiscrimination law.
>Marty Lederman writes:
>
>I am posting, however, not to rehash these questions, but instead to
>bring  attention to a point made in the Scouts' brief that actually is
>directly  related to Religionlaw!  The Scouts cite a bunch of "ministerial
>exception"  cases, and state that "[a]fter Employment Div. v. Smith, these
>decisions can  best be explained as arising from freedom of expressive
>association."  (p.32  n.8)  In other words, not from the Free Exercise
>Clause, and not from Title  VII itself.  I understand why the Scouts would
>make this argument, since  their claim is one of Free Association.  But
>what do others think of the  claim?  Would anything important turn on the
>question whether the exception  derives from associational, rather than
>FE, rights?