Boy Scouts, Expressive Association, Government Benefits, Religious Discrimination, Etc.

Marty Lederman marty.lederman at comcast.net
Thu Mar 9 09:34:27 PST 2006


Thanks, Christopher, for that thoughtful response.  

1.  The difficult Establishment Clause issue, as I see it, is not whether the BSA (or any other recipient of special benefits) is a "religious organization," or "is religious," but instead whether the organization excludes persons of some religions (or the nonreligious) from membership.  Thus, if the Government gives a special benefit to the BSA, it does so knowing that the benefit cannot be enjoyed by non-believers.  To be sure, the Government does not award the BSA the benefit because it wishes to exclude nonbelievers -- but that is the foreseeable result.  The Establishment Clause question that interests me is whether it's permissible for the state to award a benefit knowing that persons of a certain religion will be ineligible to enjoy it.  I don't think the answer is obvious; it might be very context-dependent.

2.  There's actually a second question, too:  You seem to assume that, in most cases, religious organizations get special benefits not because they're religious, but because "they happen to qualify under some secular criteria."  How do you know this?  Sure, that might be the case if the statutory criterion is simply:  Largest employer gets the goods.  But it rarely if ever works that way.  (And even then, what if the legislature knows that, e.g., the Catholic Church is the largest employer?)  More importantly, what protections must be built into the decisionmaking procedure to guarantee that religious considerations do not infect the discretionary decisionmaking process?  (I agree that it's very unlikely that many legislators prefer the BSA because it has a religious test.  But perhaps some do.  And surely such problems are more prominent when other, more faith-intensive organizations are at issue.)

3.  OK, so there's also a third issue, at least for now:  Under governing doctrine (namely, O'Connor's concurrence in Mitchell, together with Kendrick, Tilton, and even the majority opinion in Rosenberger), there are some sorts of "religious organizations" -- churches, in particular -- that are simply ineligible to receive any direct government aid, especially funding.  I expect that this rule will not survive the Roberts/Alito Court for very long, but there it is.  Is the BSA such an organization because of its religious test?  Probably not -- but it's not clear.
    
 
----- Original Message ----- 
From: "Christopher C. Lund" <chlund1 at hotmail.com>
To: <religionlaw at lists.ucla.edu>
Sent: Thursday, March 09, 2006 12:08 PM
Subject: RE: Boy Scouts, Expressive Association, Government Benefits, Religious Discrimination, Etc.


> Professor Lederman has brought up these cases where a religious organization 
> (usually the Boy Scouts) is given preferential access to a government forum 
> or other government benefit -- Evans, Winkler, Barnes-Wallace, etc.  And I 
> think most will agree that the government cannot generally prefer religious 
> organizations over secular ones in giving out benefits.
> 
> But there seem to me to be two separate classes of these cases: (1) when 
> religious organizations get preferential treatment because they are 
> religious, and (2) when religious organizations get preferential treatment 
> because they happen to qualify under some secular criteria.  I think only 
> cases in (1) are constitutional problems, but there seem to be more and more 
> claims that cases in (2) are unconstitutional as well.  (A number of 
> public-interest organizations take that position, and I take it from his 
> comments that Professor Lederman may as well.)
> 
> I don't think cases in (2) are necessarily constitutional problems.  I think 
> it's natural to think of the Establishment Clause as flatly preventing 
> religious groups from getting more from the government than secular groups.  
> But I think it's often more complicated than that -- because there is often 
> more than one secular baseline.  Say a County has generally applicable tax 
> provisions, but also has an ordinance giving special tax status to the the 
> largest employer in the County.  I don't think there's a problem with a 
> religious group claiming that benefit, even if secular groups don't get it.  
> The real issue, for me, is incentives: if the County only allows secular 
> groups to get that special tax package, large religious organizations that 
> could potentially qualify will be pressured to secularize.  (An 
> unconstitutional pressure, I think, similar to that which would result if 
> only religious groups could qualify for the tax package.)
> 
> So I think these cases about the Boy Scouts are more difficult than they 
> seem.  For it's not merely a question of whether the Boy Scouts are a 
> religious group, it's also a question of whether they are being preferred 
> because they are a religious group.  The former question is perhaps easy to 
> answer; the latter question much much harder.
> 
> 
> From: "Marty Lederman" <marty.lederman at comcast.net>
> Reply-To: Law & Religion issues for Law Academics 
> <religionlaw at lists.ucla.edu>
> To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
> Subject: Boy Scouts, Expressive Association, Government Benefits,Religious 
> Discrimination, Etc.
> Date: Thu, 9 Mar 2006 10:12:47 -0500
> 
> Life Imitates Listservs:
> 
> http://www.courtinfo.ca.gov/courts/supreme/SF030906.PDF
> 
> In three hours (1:00 Eastern; 10:00 Pacific), the California Supreme Court 
> will announce its ruling in Evans v. City of Berkeley, which presents the 
> question "Did the City of Berkeley violate the free speech or expressive 
> association rights of the members of the Sea Scouts by terminating the 
> group's rent-free use of space at the Berkeley Marina because of the group's 
> refusal, due to its charter from the Boy Scouts of America, to accept the 
> city's requirement that it agree not to discriminate on the basis of 
> religion or sexual orientation?"
> 
> Notice that this is not a generally available benefit, but is instead 
> presumably a special perq for the Boy Scouts -- rent-free access.  I would 
> think the answer to the question would have to be "no" -- indeed, the 
> pertinent question should be whether the City of Berkeley is compelled by 
> the Establishment Clause to terminate the special access (as in the pending 
> Winkler case in CTA7).  Thus, I think it will be a significant win for the 
> Boy Scouts if the Court holds (or intimates) that Berekely has a choice.  
> (And, of course, a huge win if the Court holds that Berekely must give the 
> BSA rent-free access.)
> 
> 
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