State RFRA and nonreligious groups that have conscientious objections to antidiscrimination laws

[Volokh, Eugene]

	The desire to prevent discrimination based on irrelevant
attributes is surely one theory behind employment discrimination laws.
But the legislature (and the courts interpreting the legislature's work)
may also -- and often does -- prohibit discrimination when it is
relevant.  Manhart is an example; I suspect that any actuary will tell
you that gender is quite relevant to determining mortality risk, yet the
Court held that this is prohibited by Title VII.  A person's disability
may be relevant to a job, and yet the employer may still be required to
ignore it, or even to spend money to accommodate it.  The list could go
on.

	The question is whether the legislature may decide not to
subsidize entities that discriminate based on sex, even when such
discrimination is quite relevant to the entity's operation.  We don't
care whether your discrimination is relevant or not to the job
qualifications, the legislature may say; we just don't want money raised
from taxpayers of both sexes to be spent on a program that discriminates
against one sex (to paraphrase President Kennedy as to Title VI).  Why
isn't the legislature entitled to take this view?

	Eugene


Rick Duncan writes:

The basic idea behind employment discrimination laws is that the
protected characteristic (e.g. gender) is not a relevant qualification
for employment. Thus, there is no lawyer gender, or contruction worker
gender, or policeman gender. Gender is not related to one's ability to
do a job.

That works fine for secular employment. But in the matter of the
religious priesthood or clergy, the state is constitutionally without
competence to judge what qualifies one to be a priest or clergyman.
Under the EC, it is an excessive entanglement for the state to say, in
effect, that women and men are equally qualified to be God's priests or
shepherds on earth. Under the Free Exercise Clause, a law, even a
so-called generally applicable one, announcing that women and men are
equally well-qualified for any job, including the job of priest or
clergyman, s! trikes at the core of religious liberty and is
unconstitutional (if we must employ Smith's dogma, call this the core
example of a hybrid claim in which free ex, free speech and freedom of
expressive and intimate association are linked to form a strong hybrid
right of 3 strands).

How does the state know what are God's requirements to serve in the
inherently religious position of clergyman? It doesn't. When it extends
unemployment discrimination laws into the priesthood (either by
regulation or punitive tax policy), it acts ultra vires and
unconstitutionally. And even if such laws are not technically
denominational preferences under Larson (because they don't facially
classify on the basis of religion), their primary effect is to advance
the religions which receive favorable tax treatment (i.e. those that
permit women clergy), and to inhibit the religions denied equal tax
treatment (those that don't ordain women). 

Rick Duncan