I want to suggest a broader issue if I could, arising out of
the Davey discussion.
It seems to me that there is an American legal instinct not
to let theological differences among religious traditions play too
large a role in leading to different legal results, even if those
different results could be justified on objective, secular,
grounds. Or, to put it another way, our law often bases a particular
legal rule on a paradigm case drawn from one religious traditions,
and then tends to extend the application of that rule to other
faiths, even if their beliefs or practices don't, strictly speaking,
fit the original paradigm.
Some examples, important and less so:
(1) The strict clergy-penitent privilege makes the most
sense for those religious traditions that have a strong notion of a
specific sacrament of confession, and an absolute seal of
confidentiality surrounding that confession. Yet it is applied to
all faiths. (If the paradigm case for the privilege were rabbis, for
example, rather than Catholic priests, it would probably be less stringent.)
(2) If we applied the broader principles of the modern law
of charities to the status of churches, it seems fairly clear that
many, but not all, would qualify as genuine "public benefit"
institutions. Yet the assumption is that, barring outright fraud and
the like, all churches qualify. (Notice the difficulty that the
opinions in Walz had in explaining why. Notice also that English law
is much less sentimental in this regard: it famously holds that
while orders of nuns that do educational or other work in the
community can qualify as beneficiaries of a valid charitable trust,
orders of purely contemplative nuns cannot.)
(3) Still on the topic of the law of charities: our
justification for allowing a charitable deduction for "contributions"
to churches is based on the paradigm of congregants putting money in
the basket, and seems, technically speaking, not to fit easily into
religions with compulsory tithes, pew rents, High Holiday tickets,
etc. Yet all these practices qualify for the deduction. (Hernandez
was an effort to draw some sort of line here, but its practical
consequence has been nil. Indeed, the IRS ended up settling with the
Scientologists.)
(4) One of my favorite small examples: the parsonage
provision in the tax code, whose effect is to treat all clergy as if,
like Catholic priests, they were required to live in church-provided rectories.
Now, it does seem to me that this "instinct" makes a good
deal of sense for the American dispensation governing the relation of
religion and the state. But it is still difficult. In a sense, the
choice often comes down to whether we should (a) draw lines among
religions, or (b) treat all religions alike, but in the process draw,
secularly-speaking weakly-justified lines between religious and
non-religious phenomena. Thus, for example, the effect of the
parsonage exemption is to give many Jewish and Protestant clergy an
arguably arbitrary tax preference compared to non-clergy. On the
other hand, the effect of repealing the parsonage exemption would be
to give Catholic clergy an objectively justifiable but still
discomforting tax preference compared to their Jewish and Catholic
colleagues based on the particular ecclesiology and institutional
set-up of their respective faiths. This is a real dilemma, and I've
never found a totally easy way out if it. (I happen to think that
there's a fair amount of intractability in this religion-and-law
business. But maybe that's just the post-modernist in me.)
I also think that this "instinct" I'm talking about exists
below the constitutional surface (though that does not make it any
less interesting). But it does raise the usual constitutional
questions: When is drawing lines among religions forbidden? (I.e.,
to what extent does Larson, etc., apply beyond the more blatant cases
of religious discrimination and gerrymandering.) When, if ever, is
refusing to draw lines among religions forbidden?
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law -- Camden
217 North Fifth Street
Camden, NJ 08102
[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/
Work: (856) 225-6004
Fax: (856) 969-7924
Home: (610) 896-5702
*******************************************************
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