StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscriminationlaws

[Andrew Wyatt]

I suspect that the difference is that church-clergyperson is an
employer-employee relationship, while spouse-spouse is not.

Andrew Wyatt

Information contained in this communication is CONFIDENTIAL and intended
for the use of the addressee only.  If you have received this
communication in error, please notify the sender.  If you are not the
intended recipient of this communication, be advised that disclosure,
copying, use or dissemination of the contents of this communication is
prohibited.

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Newsom Michael
> Sent: Wednesday, March 08, 2006 2:58 PM
> To: Law & Religion issues for Law Academics
> Subject: RE:
>
StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr
im
> inationlaws
> 
> I'm afraid that I don't understand your non-discrimination principle.
> You have not indicated whether you think that it is appropriate to
deny
> a government benefit to individuals who refuse to marry people with
> green hair.  If it is inappropriate to do so then I am lost.  Marriage
> is an intimate relation, to be sure, but so to is the relation between
> clergy and laity in the context of a religious institution, and we
have
> 16 words in the First Amendment that tell us that religion is
something
> special.
> 
> Generalized appeals to "discrimination" fail to get at the real issues
> involved.
> 
> 
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> Sent: Wednesday, March 08, 2006 12:47 PM
> To: Law & Religion issues for Law Academics
> Subject: RE:
>
StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr
> iminationlaws
> 
> 	I'm afraid I still don't quite get it.  The core of the
> argument, it seems to me, is that "There has been an on-going debate
> among Christian groups regarding the matter of women clergy.  For the
> state to choose one side in that debate is to make precisely what I
said
> -- an unavoidable theological judgment -- in a highly contentious
> matter.  The government winds up taking sides in a matter of which
that
> it is better advised to steer clear."  But the same is true of a vast
> range of religious decisions.  There are or were on-going debates
among
> groups about race discrimination in student policies (Bob Jones),
about
> the advisability of participating in electoral politics (Branch
> Ministries, the D.C. Cir. [?] case), about sex and religious
> discrimination in choice of students (generally in the K-12 religious
> school choice context) and more.
> 
> 	The state chooses sides in that debate, especially when it comes
> to participation in state-provided policies, all the time.  Can it
> really be that each such decision involves a forbidden "theological
> judgment"?  That argument, I think, was made in Bob Jones, and
rejected;
> the Court pointed out that the fact that the government's policies
match
> the views of some religions (e.g., no race discrimination) doesn't
make
> them impermissible establishments of religion.
> 
> 	I actually agree that clergy selection should be different, when
> government regulation is involved; I tentatively suspect otherwise as
to
> funding, though I'd be happy to be persuaded that I'm mistaken on
this.
> But I don't see how one can just say that it's different because the
> government policies involve "an unavoidable theological judgment"
(which
> presumably would mean that they're per se unconstitutional, without
even
> a strict scrutiny escape hatch) -- the policies seem to involve the
same
> sort of judgments about, say, protecting people's economic
opportunities
> (clergy is a paying job, after all) or preventing tax money raised
from
> taxpayers of all races and sexes being used to subsidize race or sex
> discrimination.
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > Newsom Michael
> > Sent: Monday, March 06, 2006 9:59 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE:
> > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst
> > oantidiscriminationlaws
> >
> >
> > The question is really not about discrimination at all.  It
> > is about discrimination in the selection of clergy, and not
> > about some "vast range" of government decisions.  Context
> > matters.  I have not taken a position on the balance to be
> > struck between discrimination and other kinds of
> > decision-making by religious groups.
> >
> > The ministerial exception recognizes the special, if not
> > unique, character of the selection of clergy.  That, it seems
> > to me, calls into serious question a decision by a government
> > to deny a benefit to a religious group that only accepts male
clergy.
> >
> > And, by the way, a closer examination of the context strongly
> > suggests that a "neutral" application of a "general" statute
> > on the question of the selection of Christian clergy, at
> > least, is anything but neutral. There has been an on-going
> > debate among Christian groups regarding the matter of women
> > clergy.  For the state to choose one side in that debate is
> > to make precisely what I said -- an unavoidable theological judgment
> > -- in a highly contentious matter.  The government winds up
> > taking sides in a matter of which that it is better advised
> > to steer clear.
> >
> > There can be no broad, bright-line rule here.  Nobody would
> > argue for an anti-discrimination principle prohibits ALL
> > forms and types of discrimination.  People can discriminate
> > in the selection of a spouse, for example.  Or, would it be
> > proper for the state to deny, say, social security or other
> > benefits to those who discriminate against people with green
> > hair in the selection of a spouse?  I don't think so.  The
> > particular facts associated with the selection of clergy, it
> > seems to me, control the particular and specific question.
> >
> > One final point: to deny a benefit is, UNDER THESE
> > CIRCUMSTANCES, a rank interference with religion and thus a
> > violation the nonestablishment principle.
> >
> > -----Original Message-----
> > From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> > Sent: Friday, March 03, 2006 3:40 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE:
> > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst
> > oantidiscr
> > iminationlaws
> >
> > 	Now this I'm not sure I quite grasp.  Why is the
> > state's judgment that the Catholic Church discriminates based
> > on sex in hiring clergy -- followed by the application of a
> > (hypothetical) generally applicable rule that
> > sex-discriminatory groups aren't entitled to tax exemption (a
> > rule, incidentally, that I wouldn't endorse as a policy
> > matter) -- an "unavoidably theological judgment"?  The Church
> > is neither secretive nor ambiguous in its men-only rule for
> > the priesthood.
> >
> > 	It's true that the state's decision would contradict
> > the Church's theological views, but that's true of a vast
> > range of state decisions.  And it's true that the Church has
> > a constitutional right to discriminate in choice of clergy;
> > yet the government is not obligated to subsidize the exercise
> > of constitutional rights.
> >
> > 	Eugene
> >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > > Newsom Michael
> > > Sent: Friday, March 03, 2006 12:09 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: State
> > > RFRAandnonreligiousgroupsthathaveconscientiousobjectionstoanti
> > > discriminationlaws
> > >
> > >
> > > In this particular, specific instance, I believe that the
> > > answer is "yes."  Otherwise, the state winds up making what
> > > are essentially and unavoidably theological judgments.  That
> > > is not true in the other examples that you give.
> > >
> > > -----Original Message-----
> > > From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> > > Sent: Friday, March 03, 2006 2:25 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: State RFRA
> > > andnonreligiousgroupsthathaveconscientiousobjectionstoantidisc
> > > rimination
> > > laws
> > >
> > > 	I actually agree that religious groups should have a
> > > right to discriminate in choice of clergy, much as
> > > nonreligious groups should generally have a right to
> > > discriminate in choice of leaders, speakers, and members (see
> > > Boy Scouts v. Dale).  (The precise contours of the two rights
> > > may be somewhat different, but the underlying reasons for
> > > them, and their existence, are in my view quite related.)
> > > Yet the question still remains whether the government has an
> > > obligation to help subsidize this discriminatory practice, by
> > > waiving nondiscrimination conditions attached to various
> > > benefits (e.g., tax exemptions) that the groups seek.
> > >
> > > > -----Original Message-----
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > > > Newsom Michael
> > > > Sent: Friday, March 03, 2006 11:21 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: State RFRA
> > > > andnonreligiousgroupsthathaveconscientiousobjections
> > > > toantidiscrimination laws
> > > >
> > > >
> > > > My point is that the ministerial exception should be
> > > broadly construed
> > > > and applied.   In the specific context of clergy, the state
> > > should not
> > > > quickly or easily claim that a religious organization is
> > ineligible
> > > > for a subsidy if it is guilty of what the state claims is
> > > > discrimination.
> > > >
> > > > The question is not really about discrimination, it is about
> > > > discrimination in the context of selecting clergy.
> > Because of this,
> > > > then there are some serious First Amendment issues that
> > have to be
> > > > considered.  Hence a liberal and broad application of the
> > exception
> > > > seems to make sense.
> > > >
> > > > If the question were about child marriage, or renting
> > apartments the
> > > > result might be different.  Surely there is something
> > rather unique
> > > > and special about the relation between a religious
> > community and its
> > > > clergy, something not found in your examples.
> > > >
> > > > -----Original Message-----
> > > > From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> > > > Sent: Friday, March 03, 2006 12:23 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: State RFRA and
> > > > nonreligiousgroupsthathaveconscientiousobjections to
> > > > antidiscrimination laws
> > > >
> > > > 	Well, I was using the secular law definition of
> discrimination,
> > > > which (at least insofar as it's relevant
> > > > here) is pretty much Stevens's test in Manhart:  Does the
> > > > institution "treat[] a person in a manner which but for that
> > > > person's sex would be different"?  If Jesus Christ
> > > > deliberately chose only men as apostles, then that was
> > > > discrimination -- obviously not illegal either then or now
> > > > (now because they weren't paid, and thus weren't his
> > > > employees), but that's a separate question than whether it's
> > > > discrimination.  By way of analogy, consider a landlord who
> > > > refuses to rent to unmarried couples or same-sex couples,
> > > > because he believes that renting to them would constitute
> > > > aiding and abetting fornication or homosexual conduct.  He
> > > > may not see his conduct as discrimination, just as compliance
> > > > with God's will.  Yet discrimination it is.
> > > >
> > > > 	Nor am I quite sure why it would be unconstitutional
> > > > for the state to "indulge in" or "act upon" such statements
> > > > (i.e., that selecting priests based on sex is
> > > > discrimination).  If the claim is that it expresses
> > > > disapproval of a faith to condemn as illegal conduct that
> > > > mirrors what the faith's holy figures do, that can't be quite
> > > > right. That Jesus was said to have driven the moneylenders
> > > > from the Temple doesn't mean that such conduct would be
> > > > constitutionally protected if conducted by a religious person
> > > > (or a church official or even a self-described Messiah)
> > > > today.  Mohammed's marriage to a child bride may have been
> > > > perfectly proper by the standards of the time and place in
> > > > which he lived, but it doesn't mean that secular law can't
> > > > ban it today; it can ban it, even if such conduct is being
> > > > performed as a religious sacrament.
> > > >
> > > > 	If the claim is that denying subsidies to a religious
> > group because
> > > > it fails to satisfy a general condition attached to subsidy is
> > > > unconstitutional or a RFRA violation, that's less
> > implausible.  Yet
> > > > I wonder why we should take this view.  The government
subsidizes
> > > > all sorts of things because of its own reasons.  It subsidizes
> > > > public schools, but not private religious schools, even though
> > > > educating one's child in a pervasively religious
> > atmosphere may be a
> > > > sacrament to some people.  It subsidizes child care, but not
> > > > people who stay home to raise their children, even though
> > > > that's a sacrament to some people, too.  It subsidizes
> > > > (through tax exemption) nonlobbying, nonelectioneering
> > > > nonprofit speech but not lobbying or electioneering nonprofit
> > > > speech. Why can't it equally choose to subsidize those
> > > > nonprofits that don't discriminate, but not those that do
> > > > discriminate (even though the latter may have a
> > > > constitutional right to discriminate, just as parents have
> > > > the right to send their kids to private schools, and just as
> > > > groups have the right to lobby or electioneer)?
> > > >
> > > > 	Eugene
> > > >
> > > > Michael Newsom writes:
> > > >
> > > > > 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.
> > > > _______________________________________________
> > > > 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.
> > > >
> > > > _______________________________________________
> > > > 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.
> > > >
> > > _______________________________________________
> > > 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.
> > >
> > > _______________________________________________
> > > 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.
> > >
> > _______________________________________________
> > 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.
> >
> > _______________________________________________
> > 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.
> >
> _______________________________________________
> 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.
> 
> _______________________________________________
> 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.