State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws

[Alan Brownstein]

Sorry to be so late responding to your post, Eugene. But I wonder if you
could clarify the focus of your issue. Are you asking whether
religiously motivated conduct can ever be taken into account when a
state decides whether or not it will subsidize an organization or an
activity? (That is, the state can only take religiously motivated
activity into account in awarding subsidies if doing so satisfies strict
scrutiny review.) Or are you asking a narrower question that only
applies to the more limited set of benefits that arise in free speech
cases (access to
government property, access to fundraising drives, access to schools,
etc.) 

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 27, 2006 4:27 PM
To: Law & Religion issues for Law Academics
Subject: State RFRA and nonreligious groups that have
conscientiousobjections to antidiscrimination laws

	Say that a state has a RFRA that's written much like the federal
RFRA.  And say that a state or local government body decides to exclude
all groups that discriminate based on race, sex, etc. in selecting
officers, speakers, or members from various benefit programs (access to
government property, access to fundraising drives, access to schools,
etc.).

	1.  The Catholic Church is excluded from the benefit because it
discriminates based on sex in selecting priests.  It raises a RFRA
objection to the exclusion, arguing that it has a sincere religious
belief that only men may be priests.  What should the result be?

	2.  The Boy Scouts are excluded from the benefit because it
discriminates based on sexual orientation in selecting scoutmasters and
members.  It raises a RFRA objection to the exclusion, arguing that it
has a deeply felt conscientious belief that it would be wrong for them
to put homosexuals in role modeling positions, or that it would be wrong
for them to put young boys in positions where there is especially likely
to be erotic attraction between them (as there is if some of the members
are known to be homosexual).  This is a belief based on our religious
traditions, the Scout leadership says; and in any event, even if that's
not religious enough (since we belong to so many different religious
traditions), it's based on deeply held conscientious beliefs, see Seeger
and Welsh.  What should the result be?

	Eugene
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.