Mark.Scarberry at PEPPERDINE.EDU
Fri Jun 28 12:18:54 PDT 2002
Dale may provide additional evidence for Alan's thesis. As I think someone
previously pointed out on this list, Dale is consistent with the diminishing
of the special status of religious organizations. To the extent that all
expressive associations have a nearly absolute right to choose their
leaders, the clergy exception to antidiscrimination laws becomes less of a
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Friday, June 28, 2002 9:26 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Equal treatment
My apologies for the earlier message, which simply quoted Steve's
with no response -- I hit enter too quickly.
It seems to me that the equal treatment model makes perfect sense,
and is quite consistent with the accommodation; the principle is simply that
nonreligious people should be accommodated, too. Tax exemptions for all
nonprofits are OK -- why should religious nonprofits get a special break
that others (including their philosophical rivals) don't get? That was
Harlan's view in his Walz concurrence, and I don't see why he was mistaken.
And I think the plurality was right on this in Texas Monthly v. Bullock.
Likewise for Title VII religious accommodation -- most courts that
have considered the issue think that secular people with deeply held views
(a la Seeger and Welsh) should get equal treatment. What's wrong with that?
So this equal treatment model seems to me normatively appealing, at
least here -- and courts are in fact seeming to insist on it.
Steve Jamar writes:
> I think Alan has hit on a significant problem. Must one
> apply this sort of neutrality analysis across the board now?
> So no religious zoning? No tax exemptions for religious
> organizations - except to the extent they are fall under
> educational, charitable, etc., secular exemptions? No more
> accommodating employee religious needs in the workplace
> because that is not neutral treatment?
> Nah. Religion will now get the best of both - accommodation
> for and exemption from,
> and neutrality for getting $$. So religion becomes even
> more established and
> favored by the government than it is now.
> I don't think this is necessarily a bad thing or something
> that really matters much - except that we could see too much
> spill over into free exercise, I fear.
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