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

[Christopher C. Lund]

     Let me take the second point first, I agree that determining whether a 
religious group was given benefits because of their religiosity or because 
of some "secular criteria" will often be impossible.  You have to look at 
what the legislature would have given to the religious groups had they been 
secular.  And that's often going to be the same sort of impossible 
counterfactual that Professors Sager and Eisgruber propose for themselves in 
the FEC context, when they ask whether the legislature would have given a 
minority religious group an exemption had they been secular.  You can't ever 
really know the answer to your question.

The question has become whether we adopt a broad prophylatic rule -- i.e., 
no special benefits to religious organizations at all -- because of the risk 
that the benefits might be given along religious lines.  I don't like that 
for incentive reasons: if a religious group is faced with losing a special 
benefit because of its religious status, it may choose to forego its 
religious status rather than the benefit.  And that's a religious-liberty 
disaster.

As for your first question, if the criteria for the special benefit are 
truly neutral, then it won't really be the case that the state is 
"award[ing] a benefit knowing that persons of a certain religion will be 
ineligible to enjoy it."  For the people of whatever religion can enjoy it, 
not by changing their religion, but by forming a group that meets the 
secular criteria they need to meet to get the benefit.  But then again, one 
does wonder whether the criteria are ever really secular?  Does anyone 
believe that the atheistic equivalent of the Boy Scouts could ever get the 
governmental perks the Boy Scouts receive?

Government discretion is the problem.  There must be some way to cabin it.  
So I'm really interested in your brief comment about procedural safeguards 
-- do you think they are possible in these sorts of discretionary 
decisionmaking procedures?  (I've always thought the best way to handle 
issues of favoritism in charitable choice, for example, was to somehow 
create a religion-blind scheme of giving grants.  But how do you _do_ that?)


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: Re: Boy Scouts, Expressive Association, Government 
Benefits,Religious Discrimination, Etc.
Date: Thu, 9 Mar 2006 12:34:27 -0500

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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