State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

Newsom Michael mnewsom at law.howard.edu
Thu Mar 2 14:44:14 PST 2006


1) To say that a religious organization chooses its clergy
"discriminatorily" requires some serious and sober consideration of the
theology of that organization.  The exemption ought to apply broadly if
only to keep secular entities out of an area in which they have precious
little expertise (quite apart from any consideration of any
constitutional norms).  To say that the refusal to ordain women is
"discrimination" without consideration of the context begs the question.
One could just as easily say that Jesus Christ discriminated against
women by only choosing men as apostles.  For the state to indulge in
such statements -- and to act upon them -- is precisely what the
Religion Clauses prohibit.  To subsidize religious organizations that
ordain women and to refuse to subsidize religious organizations that do
not is to establish a preference for some religions over others.
Doesn't that offend the non-establishment principle?  If, of course, one
chooses not to recognize that religion and religious institutions occupy
a special place in the constitutional order, then perhaps the violation
is not so clear.  But it is a mistake not to recognize the special
constitutional importance of religion, and hence, a mistake not to
recognize that such differential treatment offends the principle. 

2) There are ecumenical organizations.  I suspect that some of them are
entitled to the same protections -- and duties -- of any religious
organization.  But the Boy Scouts cannot even qualify as an ecumenical
organization, much less one that is entitled to make religiously-based
autonomy claims.  Belief in God is not enough, it seems to me.  I
seriously doubt that many could claim, with a straight face, that they
practice their religion by and through the Boy Scouts.  

	There is another scenario that might lead to a different
conclusion.  There are -- or were -- close structural links between the
Mormon Church and organizations like the Boy Scouts.  Indeed the Mormon
Church had to reconsider its beliefs regarding the eligibility of
African Americans to serve as clergy or one sort or another in the
Mormon Church.  The Mormon-affiliated Boy Scouts groups had imposed a
requirement that only those eligible for that church position could
serve as Scout leaders.  Where close and dense structural links exist
between the Boy Scouts and a particular religious institution, one might
plausibly say that the Boy Scouts are, for some purposes at least,
"religious."  But the key is those links to religious institutions.  The
Boy Scouts, standing alone, as it were, are not religious institutions.

	I am not sure that the "Traditionalist Christian Scouts" qualify
as a religious institution for purposes of a religion-based autonomy
claim.  First of all, as I suggested above, would anybody seriously
maintain that they practice their religion through such a group.  I do
not understand either evangelical Protestant or Catholic
"traditionalists" ever arguing that the "Traditionalist Christian
Scouts" are "church enough" for them.  Certainly Catholics could never
say that.  I think that we are back to the question of institutional
linkages.  Notice that in your argument, you try to separate out many
central and critical elements of doctrine in order to construct an
ecumenical traditionalist group.  I think that that process, in and of
itself, undermines any claim that the "TCS" is a "religious"
institution.  If that were true, then by the alchemy of slicing and
dicing any organization could be "religious."  

3) Even secular humanists and the other non-theistic belief systems
noted in Torcaso have their discrete organizational structures.  So we
are back to the beginning: institutional linkages with organizations
that are admittedly religious in that they have comprehensive belief
systems.  That is the common thread, by the way, in the organizations
discussed in Torcaso. 

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Tuesday, February 28, 2006 7:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: State RFRA and nonreligious groups
thathaveconscientiousobjections to antidiscrimination laws

	1)  The question is whether the ministerial exception applies to
exclusions from benefits programs, or only to outright legal
commands/prohibitions.  All the ministerial exception cases I've seen
are in the later category.  The question is whether the government may
say to the Church (and to other groups that discriminate), "Sure, you
have a statutory right [or, as to expressive association, a
constitutional right] to choose your leaders discriminatorily; but we
need not subsidize you if you do so."

	2)  The Boy Scouts, I take it, could argue that they do have a
religious belief -- belief in God, coupled with a belief that God views
homosexuality as improper.  Would that qualify for RFRA purposes?  Or
would they also have to show that they share the same denomination?

	What if it weren't the Boy Scouts but the Traditionalist
Christian Scouts, a group that sees itself as focused on shared
Christian (Protestant and Catholic) traditionalist moral values?  Assume
the group's leaders don't much insist that Scout leaders or members have
the same views on salvation through works, predestination,
transsubstantiation, or other theological points; but they do bar
homosexual behavior and other behavior that they see as sinful (but that
doesn't implicate antidiscrimination laws).  Would that be enough to
raise a RFRA claim, or does the mixture of denominations block that.  He

	3)  Finally, say that the Boy Scouts believe that they have a
secular conscientious obligation -- not a religious one -- to limit
membership and leadership positions to heterosexuals.  The Scouts
sincerely and deeply believe this, precisely because they think it's
wrong to bring the prospect of erotic attraction into relations between
adolescents in this context.  And not only are they unfazed by the
question "What about a group that claimed that boys and girls should not
participate together in the group's activities for fear of 'erotic'
attractions between boys and girls?" -- they are indeed such a group;
they are, after all, the *Boy* Scouts, and (let's assume) part of their
reasons for being the Boy Scouts rather than the Child Scouts is
precisely to eliminate intragroup heterosexual erotic attractions.  Like
our view or not, they say, but it's our deeply felt conscientious view,
and subject to protection under RFRA by way of Seeger/Welsh.  (I don't
see what VMI has to say about this, since that simply says that the
government may not discriminate based on sex in government operations.)

	All this is directly related to an article I'm writing, so I'd
love to hear more people's views on this subject!

	Eugene


> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Newsom Michael
> Sent: Tuesday, February 28, 2006 1:03 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: State RFRA and nonreligious groups that 
> haveconscientiousobjections to antidiscrimination laws
> 
> 
> I am troubled by your Boy Scouts hypo.  First, how does this 
> group have standing to raise a religious freedom claim?  What 
> is the Boy Scout's "religion?"  Dale was about associational 
> rights, not religion-based rights.  Second, when you 
> introduce possible "erotic" attractions, you load the dice.  
> What about a group that claimed that boys and girls should 
> not participate together in the group's activities for fear 
> of "erotic" attractions between boys and girls?  VMI ought to 
> settle this, shouldn't it?
> 
> Isn't the first hypo easy?  Has the ministerial exception 
> vanished into thin air?  What about EEOC v. Catholic University?
> 
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
> Sent: Monday, February 27, 2006 7:27 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
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