Religion Clauses question

Tue Jun 1 17:21:32 PDT 2004

Nathan:

Since so many intellectuals--including Supreme Court justices--affirm that
religion deals with issues of spirituality and moral virtue especially
sexual ethics, it seems to me that any law meant to target an area that has
been traditionally the domain of theology could be construed as not facially
neutral at all.  A law, for example, that forbade meetings on Sundays in
buildings owned by 501c3 organizations could be construed as targeting
religion even if facially neutral.   Since it is only religious beliefs, or
rich philosophical views of the human person that are religious is quality,
that morally forbid homosexual acts between consenting adults, it is not
unreasonable to argue that such an anti-discrimination law is partially
motivated by an intent to expunge those religious understandings from the
public square.  

To employ the rhetoric of liberalism, one could say that religion is so
personal, and one's views of sexual morality so deeply connected to one's
view of the universe and human life, that it is beyond the competence of
government, especially courts, to instruct employers, landlords, etc. on how
to conduct their business concerning prospective employees on such delicate
matters.  Capitalism, like copulation, is an act between consenting adults.

Frank

On 6/1/04 3:41 PM, "Nathan Oman" <noman at mail.netoriginals.com> wrote:

> Steve,
> 
> I don't understand how your claim that extending anti-discrimination laws to
> cover priests and pastors can be squared with the holding in Employment
> Division v. Smith.  It seems to me that such a law would be facially neutral
> and would not be singling out religion for any special disability.  Of course,
> it is always possible for the Supreme Court to carve out a minister/pastor
> exception to Smith, but unless I am mistaken about the current shape of the
> doctrine no such limitation on the Smith neutrality position exists.
> 
> Nate Oman
> 
> ---------- Original Message ----------------------------------
> From: Steven Jamar <sjamar at law.howard.edu>
> Reply-To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
> Date: Tue, 1 Jun 2004 15:51:52 -0400
> 
>> Priests can be just men, right?  Mormons can and do exclude blacks from
>> the upper ranks of the church hierarchy.
>> 
>> Every anti-discrimination law that I have heard of exempts either
>> religious organizations or certain religious offices (priests,
>> ministers, certain other religious officials) from the reach of the law.
>> 
>> Nonetheless, assuming that a law as unlikely as that posited were to be
>> passed, I think a free exercise claim might well work to limit its
>> effect to janitors and others not directly involved in the direct
>> pastoral work.  (along the same lines as the distinctions are made now
>> in statutes).  That is, I think the constitution may limit the reach of
>> such a law.
>> 
>> As to the latter, I think you would be into free exercise problems
>> there as well -- ministers can refuse to marry people on any or no
>> grounds now.  I can't imagine that changing.  Of course I would hope to
>> never see the issue arise as a constitutional issue.  I would hope that
>> legislators would respect the bounds well enough that it  would not.
>> But dumber things are done by our elected officials regularly.    Like
>> yanking the tax exempt status of a Unitarian Universalist church in
>> Texas because of a lack of mandated belief in god meant that it was not
>> a proper religion.
>> 
>> Steve
>> 
>> 
>> On Tuesday, June 1, 2004, at 02:07  PM, Volokh, Eugene wrote:
>> 
>>> An interesting question from a Weblog,
>>> http://southernappeal.blogspot.com/
>>> 2004_05_30_southernappeal_archive.htm
>>> l#108591655546056564; any thoughts about it?
>>> 
>>> 
>>> [Begin quote]
>>> 
>>>  . . . .  Suppose that same-sex marriage (SSM) gets codified into law
>>> (in MA or somewhere else) and the legislature, for whatever reason,
>>> decides that sexual orientation ought to have protected status under
>>> its
>>> civil rights laws (like race, sex, religion, etc.) Suppose further that
>>> the legislature decides that prejudice against homosexuals is
>>> widespread
>>> and that something needs to be done beyond the enforcement of
>>> anti-discrimination statutes (that come along with the civil rights
>>> laws). In particular, they decide to pass two laws:
>>> 
>>> (1) Any group, organization, etc. that has tax-exempt status shall not
>>> discriminate against homosexuals in hiring, promotion, etc. So a church
>>> that refused to hire a gay pastor could lose! its property tax
>>> exemption, for example.
>>> 
>>> (2) Any religious organization that conducts marriages must be willing
>>> to conduct SSMs or its ministers will lose the ability to marry civilly
>>> as well as religiously. A church that refuses to conduct SSMs could
>>> still conduct weddings, but the couples wouldn't be married in the eyes
>>> of the state unless they had a civil ceremony as well.
>>> 
>>> So my question: is there any constitutional bar to either (1) or (2)? I
>>> don't mean to say that either law is likely politically or even that
>>> those who favor SSMs are in favor of either (though there are enough
>>> feminist legal scholars running around who would like to yank the
>>> Catholic Church's tax-exempt status because of their male-only
>>> priesthood to make me think that some scholars would certainly advocate
>>> them). I'm just interested in what the law might say about the matter.
>>> 
>>> [End quote]
>>> _______________________________________________
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>>> 
>> -- 
>> Prof. Steven D. Jamar                                     vox:
>> 202-806-8017
>> Howard University School of Law                           fax:
>> 202-806-8428
>> 2900 Van Ness Street NW
>> mailto:sjamar at law.howard.edu
>> Washington, DC  20008
>> http://www.law.howard.edu/faculty/pages/jamar
>> 
>> "Years ago my mother used to say to me... 'In this world Elwood' ...
>> She always used to call me Elwood... 'In this world Elwood, you must be
>> Oh So Smart, or Oh So Pleasant.' Well for years I was smart -- I
>> recommend pleasant.  You may quote me." --Elwood P. Dowd
>> 
>> - Mary Chase, "Harvey", 1950
>> 
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
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>> 
> 
> --
> Nathan Oman
> 
> http://www.tutissima.com
> http://www.timesandseasons.org
> --
> _______________________________________________
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