harms caused by discrimination

[marty.lederman at comcast.net]

It's a little off-topic from the Alan/Eugene debate, but I thought it might be worth noting that a couple of the minor premises here are very much contested:

1.  Eugene suggests that if the state gives direct funding to an entity that discriminates on a basis the state could not itself use, such as religious affiliation, the state has not thereby violated the Constitution.  But that's very much an open question.  The "leading" case in the race area, for what it's worth -- Norwood -- holds that such funding *is* unconstitutional.  Should and will there be a Norwood-like doctrine for religious discrimination?  It's too soon to tell.  In the cases we're worried about here, the state has many options of which entity to fund, and intentionally chooses an entity that discriminates against those of certain religions, thus assuring that state dollars will be used to facilitate religious discrimination, whereas it would have been very simple for the state to choose another qualified recipient who does not exclude people on the basis of religion.  Eugene assumes that such discrimination was not the *reason* the state chose the particular r!
 ecipien
t -- but, at best, the state was deliberately indifferent to the foreseeable discrimination that its money would subsidize, and failed to take very easy steps to avoid such harms.  

I'm not saying the constitutional question is easy -- in fact, I think it's very hard, and very fact-dependent, as suggested in this OLC Opinion:  http://balkin.blogspot.com/olc.charitablechoice.pdf

But it's not settled.  (In fairness, Eugene doesn't say it is settled.)

2.  On the question of whether the state should grant religious exemptions to civil rights laws, some folks appear to assume that the harm caused by discrimination is rarely "material," in the sense that the persons discriminated against could always find another job, or another apartment.  But is that correct?  If the state starts handing out religious exemptions to, say, prohibitions on sexual-orientation discrimination, is it really inconceivable that a *great number* of employers/landlords would invoke such an exemption?  After all, anti-gay animus is often inspired by religious beliefs.  Thus, the job market or the housing market might begin to look quite different for a gay person than for a straight person where exemptions are available. 

In any event, what if it's *that particular* job, or *that* apartment, that is ideal for me?  The fact that I might be able to find another, less ideal, job or apartment, is a real harm -- sometimes a very significant one, not "merely" a dignitary harm.  Think of how important your choices of homes and jobs have been for you and your family.

What's more, even where losing a particular job or apartment wouid not be such a big deal for a particular applicant, it hardly means that the resulting harm is "merely" dignitary.  That's looking at the problem much too narrowly.  The fact that the state absolutely prohibits a form of discrimination -- and says that religious prejudices are not a sufficient excuse -- stands as a very important marker in the social history of the community.  It is critically important to breaking down such stereotypes, or rendering them socially disfavored, and might well be an important impetus for a much broader social transformation toward equal treatment.  (Certainly, that will turn out to be the most important legacy of Goodridge, for example.) 

Sorry if these observations are a distraction -- carry on!


-------------- Original message ----------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>     Hmm; it seems to me that the typical argument in the Establishment
> Clause cases is simply that the government is not establishing religion
> by declining to control government grantees' discrimination (at least
> when the grantee is chosen for reasons unrelated to its religiosity, or
> its willingness to discriminate).
>  
>     Thus, say that the government gives a nonreligious entity a grant,
> and doesn't attach a condition barring the entity from discriminating
> based on political affiliation.  Unconstitutional?  No, under
> Rendell-Baker v. Kohn:  The entity's action isn't state action, and the
> grant award is state action but doesn't violate the Free Speech Clause.
>  
>     Say the government gives a nonreligious entity a grant, and doesn't
> attach a condition barring the entity from discriminating based on
> religion.  Unconstitutional?  I take it not, unless the Rendell-Baker
> principle somehow applies differently for the Establishment Clause (or
> Free Exercise Clause) than for the Free Speech Clause, which doesn't
> seem likely.
>  
>     Say the government gives a religious entity a grant -- again, for
> reasons unrelated to its religiosity -- and doesn't attach a condition
> barring the entity from discriminating based on political affiliation or
> on religion.  The grant could be the matching grant that's provided by
> the deductibility of charitable contributions to nonprofits.  Or the
> grant could be money brought to a religious university using the GI Bill
> or various state- or federal-level college scholarship programs.  Or the
> grant could be direct aid.  In any of these situations, my view is that
> the government's failure to bar discrimination by its grantees neither
> abridges the expressive association or free speech rights of the
> grantees' employees (if the discrimination is based on political
> affiliation or speech), nor abridges the free exercise rights or
> Establishment Clause rights of the grantees' employees (if the
> discrimination is based on religion).  None of this turns on whether the
> harm of discrimination is conceptualized as material or dignitary; it's
> just not, in my view, a constitutional violation.
>  
>     On the other hand, when the government *does* act to restrict
> discrimination by employers, landlords, owners of public accommodations,
> etc., it's doing it on a theory that the discrimination causes some harm
> that the government chooses to statutorily prohibit.  Then the RFRA
> question is whether the harm is material (in which case discriminating
> employers, landlords, photographers, etc. might be entitled to an
> exemption in the cases where the material harm doesn't seem likely to
> happen), or dignitary (in which case they wouldn't be an entitled to an
> exemption, assuming the interest in avoiding the harm is seen as
> compelling).
>  
>     What am I missing here?
> 
>     Eugene
>  
>