RFRAs and (hypothetical) denials of tax exemption for institutions that discriminate in hiring

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Mar 13 22:55:16 PST 2006

	I very much appreciate Rick's and Mark's contributions here; but
let me probe the matter a little further.

	The question that I'm facing is this:  Say that the government
decides to generally give tax exemptions only to institutions that don't
discriminate on various criteria.  The government's rationale is the one
President Kennedy gave as to Title VI, but extended to other
characteristics besides race:  Money raised from taxpayers of all
identity groups should not be used to subsidize discrimination against
members of some identity groups.

	It seems to me that this doesn't require the state to claim any
knowledge about what God's requirements are, just as applying
immigration law or child labor law to churches (to ban the hiring of
ministers who lack work authorization or who are too young) doesn't
require the state to claim any knowledge about what God's requirements
are.  The state is simply saying that it doesn't want to subsidize a
certain practice; that practice may be perfectly wise and proper in the
eyes of some, but the state doesn't want to subsidize it.

	Why exactly does this differ from any other right (including a
right of churches, such as churches' right to electioneer or lobby) that
the state may refuse to subsidize?


Rick Duncan writes:

I can only add one small point to Mark's excellent post. 

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


Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
numbered." --The Prisoner

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