looming issues/cases in religious liberty

[Saperstein, David (RAC)]

Kevin,

 

Eugene and Ed offer good answers.  I would suggest another that I think
is even more pervasive and politically explosive.  

 

Under the Civil Rights Act, the religious exemption for hiring is
significantly in play. To what degree and under what circumstances can
religious groups discriminate in whom they hire?   And how do
"conscience clauses" figure into this determination?  (You might include
"conscience clause" issues as a distinct category since they apply to
both employer and employee.)   Can employers discriminate not only on
the grounds of religious identity but on the grounds that the employee
violated the religious tenets of the religious entity?  What are the
limits of that? Does the exemption apply to pervasively religious
agencies only or to affiliated groups (e.g. catholic charities, Jewish
federation social service agencies)?   Does the exemption apply when
government funds pay for the position or only when private funds play
for it?  To what extent does the employer have the obligation to
accommodate an employee's religious objections to performing functions
of the job (e.g. the pharmacy cases?) and what rights do third parties
have if the accommodation impinges on their access to health services? 

 

The courts are all over the place on this cohort of issues.

 

It's political explosiveness is reflected by the fact that controversies
(that are increasing) over this issue:

 

*       played a major role in the mid- '90s (after the Boerne decision)
in preventing the Religious Freedom Protection Act from passing Congress
and led to the trimmer RLUIPA bill.  

*       has pitted long term allies against each other (civil rights
groups, who generally try to reduce the number of circumstances in which
discrimination is allowed v. religious groups, who try to protect
religious autonomy by a broad interpretation of the exemption).  

*       has played a key role in preventing passage for 15 years of the
Workplace Religious Freedom Act (WRFA - the religious liberty bill
currently before Congress with the greatest amount of support from
religious groups), which would undo the de minimus standard set in the
TWA v. Hardison decision.

*       will play a key role in shaping the religious groups"
opposition, support or neutrality for/on the Employment
Non-Discrimination Act (ENDA) preventing employment discrimination on
the grounds of sexual orientation.

*       divide some religious groups from women's rights and
reproductive rights groups on the provision of reproductive health
services and prescriptions.

 

David

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Pybas, Kevin M
Sent: Thursday, January 11, 2007 11:02 AM
To: religionlaw at lists.ucla.edu
Subject: looming issues/cases in religious liberty

 

List members:  If I may, I would like to enlist the expertise on this
list to help me identify new issues in religious liberty that you
believe are on the horizon, or perhaps are already the subject of
litigation.  I don't mean the re-fighting of issues like school prayer,
or whether a particular display on public property is sufficiently
secular in character.  Though if you are aware of an issue or case that
has the potential to lead to the overturning of what seems to be
established precedent, or to expand or narrow precedent, I'm interested
in that too.  (No need to mention the Hein case currently before the
Supreme Court.)

 

Thanks.

 

Kevin Pybas

Missouri State University       

 

 

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