Impermissible religious discrimination / viewpoint discrimination?

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Mar 10 11:48:11 PDT 2008


I just ran across Ky. Rev. Stat. § 344.130, which defines "place of public accommodation" for purposes of state antidiscrimination law, and has the following exception:

(3) "Place of public accommodation, resort, or amusement" does not include a religious organization and its activities and facilities if the application of KRS 344.120 ["it is an unlawful practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation ... on the ground of disability, race, color, religion, or national origin"]  would not be consistent with the religious tenets of the organization, subject to paragraphs (a), (b), and (c) of this subsection.
(a) Any organization that teaches or advocates hatred based on race, color, or national origin shall not be considered a religious organization for the purposes of this subsection.
(b) A religious organization that sponsors nonreligious activities that are operated and governed by the organization, and that are offered to the general public, shall not deny participation by an individual in those activities on the ground of disability, race, color, religion, or national origin.
(c) A religious organization shall not, under any circumstances, discriminate in its activities or use of its facilities on the ground of disability, race, color, or national origin.

Are subsections (a) and (b), given Larson v. Valente?  Is subsection (3)(a) also vulnerable to a Free Speech Clause challenge?  Also, what exactly does (c) mean -- does it simply mean that all of (3) provides an exemption only from the ban on religious discrimination, or does it leave some forms of permissible disability, race, and national origin discrimination intact?  If the former, wouldn't (c) sometimes be unconstitutional as applied to religious activities?

Incidentally, consider a practical application:  Judaism, as I understand it, treats people differently based on their ethnic background; though it accepts converts, becoming accepted as a religious Jew is much harder for someone who isn't ethnically Jewish than for someone who is ethnically Jewish but who used to be nonreligious.  If such ethnic discrimination counts as "national origin" discrimination, then the constitutionally permissible scope of (c) becomes quite important, for instance if a synagogue decides to allow its facilities to be used for Jewish weddings but not mixed weddings.

Eugene


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