State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

[Newsom Michael]

Actually, it might follow that religions are entitled to benefits
without certain strings attached.  To suggest that religions are not is
to beg the question. 

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Tuesday, March 14, 2006 1:42 AM
To: Law & Religion issues for Law Academics
Subject: RE: State RFRA and nonreligious groups
thathaveconscientiousobjections to antidiscrimination laws

	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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> _______________________________________________
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