StateRFRAandnonreligiousgroupsthathaveconscientiousobjections toantidiscriminationlaws

[Scarberry, Mark]

Pardon the length and density (and resulting lack of clarity) in the
following paragraphs. I'm sorry that I don't have time now to flesh out
these points.

Autonomy in choice of clergy, and in manner of choosing clergy, is
understood and has been understood since the Founding to be constitutive of
religious bodies. Application of neutral, generally applicable
nondiscrimination laws to choice of clergy interferes with the core of
religious groups' identities--identities that are protected particularly, in
my view, by both the Free Ex. Clause and the Establishment Clause. There is
probably no more important religious "exercise" than the choice of who will
be the religious community's leader, confessor, preacher, evangelist,
celebrator of the sacraments. This is not a mere hiring of an employee.
Whether nonreligious expressive associations are protected or not by Dale
from losing tax benefits due to choice of leaders, religious groups have the
specific protection of the religion clauses.

Employment Div. of Oregon v. Smith did not, in my view, overrule the
ministerial exception cases. I don't recall the Court even mentioning them.
Thus I do not think it is sufficient to argue that Smith allows the state to
withhold benefits if the withholding is done by way of a (supposedly)
neutral, generally applicable law.

Use of taxation policy to favor one religion over another has also been
understood since the Founding as a kind of Establishment. Given our
long-standing tradition of free choice of clergy, a decision now to
eliminate exemptions from nondiscrimination laws covering choice of clergy
could reasonably be seen as targeting those religious groups whose clergy
choices are not approved by the legislature. In any event, application now
of nondiscrimination laws to generate favorable tax treatment for some
religious groups over others based on choice of clergy would be a change in
the baseline equality of religious groups that our traditions embrace, in
violation of both the Free Ex. and Establishment Clauses.

Such unequal treatment might be justified by a sufficiently compelling
interest--perhaps denial of tax benefits to religious groups that practice
racial discrimination in clergy choice could be justified. I can't think of
any other interest that would be even arguably sufficient.

Of course enforcement of antidiscrimination rules in clergy choice would be
highly problematic, requiring in many cases inquiry into the internal
processes of a religious body and likely second-guessing of the religious
determinations made by the body (e.g., which of two candidates lives the
more holy life or understands religious doctrines more fully and
correctly?). The resulting entanglement would create Establishment Clause
issues even if we trusted secular fact-finders to determine whether the
religious body discriminated on the prohibited basis or instead just picked
the more religiously qualified candidate. 

Limiting application of antidiscrimination laws only to groups that admit
that they discriminate (e.g., Roman Catholics and a lot of theologically
conservative Protestant groups who admit that they will not choose women as
members of the clergy) would avoid some of those problems, but then arguably
it would make application of the law neither neutral nor generally
applicable, to the extent that matters.

Note that Locke v. Davey suggests a special sensitivity to the state getting
involved with training of clergy. I think the case was wrongly decided, but
the best ground for defending it is the special nature of clergy and the
constitutional value that is advanced when the state stays out of matters
involving clergy, and in particular stays away from helping, with tax
dollars, to train clergy. It's not too much of a leap to say that there also
should be a special sensitivity to the state getting involved in the choice
of clergy, and influencing that choice by tax policy. In either case, it's a
high voltage religious freedom matter. If the state is justified in
withholding benefits from Mr. Davey -- even though normally the withholding
of benefits would violate one of the clearest constitutional prohibitions,
the prohibition on viewpoint discrimination -- then there is also a strong,
constitutionally significant value involved in keeping the state away from
having a hand in clergy choice.

Finally, Doug Laycock's substantive neutrality test leads us to say that the
state should not effectively destroy a church -- which is what the denial of
tax benefits could do over the not-too-long run by preventing it from
competing in the religious arena on an equal footing with other religious
groups -- by denying tax exempt status based on choice of clergy. Doing so
might be formally neutral, but it isn't substantively neutral. Given our
traditions, equal tax treatment of religious groups without regard to how
they choose their clergy will not, for example, create an incentive for a
person to attend a church that does not allow women to be clergy, if that
person thinks that women should be allowed to be clergy. The state will not
cause such a person to change his or her mind by giving tax benefits to both
kinds of churches. But if the "discriminatory" church is denied tax exempt
status, a lot of people who agree with it (who think women should not be
allowed to be clergy) may nevertheless end up attending and supporting
churches that do allow women to be clergy, because their donations to that
church will carry a tax benefit. 

Of course, if you think the state should have a role in influencing churches
in the selection of clergy, then you will not mind the lack of substantive
neutrality. But that approach is contrary to our traditional understanding
of religious liberty.

At least that's how I see it.

Mark Scarberry
Pepperdine

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
To: Law & Religion issues for Law Academics
Sent: 3/8/2006 10:51 PM
Subject: RE:
StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscrimin
ationlaws

	Well, I'd think that you too would think this -- presumably even
if we didn't have a First Amendment, we would agree that revoking tax
exemptions based on such factors would be a bad policy.  My view is that
the benefits of maintaining and encouraging religious and ideological
diversity, and of avoiding social tension and alienation of large groups
of believers, more than justify the current policy.  But if Congress
believes the opposite, I don't see why they would have to subsidize the
constitutional right to discriminatorily hiring of clergy any more than
they have to subsidize the constitutional rights to get abortions, to
send children to private school, or to lobby or electioneer.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Roger T. Severino
> Sent: Friday, March 03, 2006 3:51 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: 
> StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst
> oantidiscriminationlaws
> 
> 
> Eugene,
> 
> I believe that the idea of revoking the Catholic Church's 
> tax-exemption because of their all-male priesthood is fraught 
> with constitutional problems (for some of the reasons already 
> stated by others).  But I am more interested in your 
> statement, which I agree with, concerning such revocation 
> being undesirable as a policy matter.  This implies that the 
> public benefits of enforcing certain anti-discrimination laws 
> against the church are outweighed by something else.  I am 
> curious to know the policy reasons you had in mind.
> 
> -Roger Severino
> 
> 
> 
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> 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. 
> > > _______________________________________________
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