State RFRA and nonreligious groups that haveconscientiousobjections to antidiscrimination laws

[Volokh, Eugene]

	Religions may have special and unique features for legal
purposes.  But it doesn't follow that one of those features is an
entitlement to get a government benefit while at the same time escaping
the generally applicable conditions attached to that benefit.  Maybe
there is a good reason for such an entitlement; it just needs somewhat
more proof than simply a denial that discrimination in clergy employment
constitutes discrimination, or an assertion that religions, religious
organizations, and religious believers have special and unique features.

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Newsom Michael
> Sent: Thursday, March 09, 2006 4:32 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: State RFRA and nonreligious groups that 
> haveconscientiousobjections to antidiscrimination laws
> 
> 
> I am still unpersuaded.  I don't see the relevance of your 
> examples. You see no difference between the relation between 
> clergy and religious organizations and other "employment" 
> relations?  We are talking about religions here.  The 
> Religion Clauses have to mean at least that we recognize -- 
> for better or for worse -- the special and unique features of 
> religions, religious organizations, and religious believers.
> 
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
> Sent: Thursday, March 09, 2006 7:07 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: State RFRA and nonreligious groups that have 
> conscientiousobjections to antidiscrimination laws
> 
> 	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
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