I'm afraid I still don't quite get it. The core of the argument, it seems to me, is that "There has been an on-going debate among Christian groups regarding the matter of women clergy. For the state to choose one side in that debate is to make precisely what I said -- an unavoidable theological judgment -- in a highly contentious matter. The government winds up taking sides in a matter of which that it is better advised to steer clear." But the same is true of a vast range of religious decisions. There are or were on-going debates among groups about race discrimination in student policies (Bob Jones), about the advisability of participating in electoral politics (Branch Ministries, the D.C. Cir. [?] case), about sex and religious discrimination in choice of students (generally in the K-12 religious school choice context) and more.
The state chooses sides in that debate, especially when it comes to participation in state-provided policies, all the time. Can it really be that each such decision involves a forbidden "theological judgment"? That argument, I think, was made in Bob Jones, and rejected; the Court pointed out that the fact that the government's policies match the views of some religions (e.g., no race discrimination) doesn't make them impermissible establishments of religion. I actually agree that clergy selection should be different, when government regulation is involved; I tentatively suspect otherwise as to funding, though I'd be happy to be persuaded that I'm mistaken on this. But I don't see how one can just say that it's different because the government policies involve "an unavoidable theological judgment" (which presumably would mean that they're per se unconstitutional, without even a strict scrutiny escape hatch) -- the policies seem to involve the same sort of judgments about, say, protecting people's economic opportunities (clergy is a paying job, after all) or preventing tax money raised from taxpayers of all races and sexes being used to subsidize race or sex discrimination. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Monday, March 06, 2006 9:59 AM > To: Law & Religion issues for Law Academics > Subject: RE: > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst > oantidiscriminationlaws > > > The question is really not about discrimination at all. It > is about discrimination in the selection of clergy, and not > about some "vast range" of government decisions. Context > matters. I have not taken a position on the balance to be > struck between discrimination and other kinds of > decision-making by religious groups. > > The ministerial exception recognizes the special, if not > unique, character of the selection of clergy. That, it seems > to me, calls into serious question a decision by a government > to deny a benefit to a religious group that only accepts male clergy. > > And, by the way, a closer examination of the context strongly > suggests that a "neutral" application of a "general" statute > on the question of the selection of Christian clergy, at > least, is anything but neutral. There has been an on-going > debate among Christian groups regarding the matter of women > clergy. For the state to choose one side in that debate is > to make precisely what I said -- an unavoidable theological judgment > -- in a highly contentious matter. The government winds up > taking sides in a matter of which that it is better advised > to steer clear. > > There can be no broad, bright-line rule here. Nobody would > argue for an anti-discrimination principle prohibits ALL > forms and types of discrimination. People can discriminate > in the selection of a spouse, for example. Or, would it be > proper for the state to deny, say, social security or other > benefits to those who discriminate against people with green > hair in the selection of a spouse? I don't think so. The > particular facts associated with the selection of clergy, it > seems to me, control the particular and specific question. > > One final point: to deny a benefit is, UNDER THESE > CIRCUMSTANCES, a rank interference with religion and thus a > violation the nonestablishment principle. > > -----Original Message----- > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > Sent: Friday, March 03, 2006 3:40 PM > To: Law & Religion issues for Law Academics > Subject: RE: > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst > oantidiscr > iminationlaws > > Now this I'm not sure I quite grasp. Why is the > state's judgment that the Catholic Church discriminates based > on sex in hiring clergy -- followed by the application of a > (hypothetical) generally applicable rule that > sex-discriminatory groups aren't entitled to tax exemption (a > rule, incidentally, that I wouldn't endorse as a policy > matter) -- an "unavoidably theological judgment"? The Church > is neither secretive nor ambiguous in its men-only rule for > the priesthood. > > It's true that the state's decision would contradict > the Church's theological views, but that's true of a vast > range of state decisions. And it's true that the Church has > a constitutional right to discriminate in choice of clergy; > yet the government is not obligated to subsidize the exercise > of constitutional rights. > > Eugene > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > Newsom Michael > > Sent: Friday, March 03, 2006 12:09 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: State > > RFRAandnonreligiousgroupsthathaveconscientiousobjectionstoanti > > discriminationlaws > > > > > > In this particular, specific instance, I believe that the > > answer is "yes." Otherwise, the state winds up making what > > are essentially and unavoidably theological judgments. That > > is not true in the other examples that you give. > > > > -----Original Message----- > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > > Sent: Friday, March 03, 2006 2:25 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: State RFRA > > andnonreligiousgroupsthathaveconscientiousobjectionstoantidisc > > rimination > > laws > > > > I actually agree that religious groups should have a > > right to discriminate in choice of clergy, much as > > nonreligious groups should generally have a right to > > discriminate in choice of leaders, speakers, and members (see > > Boy Scouts v. Dale). (The precise contours of the two rights > > may be somewhat different, but the underlying reasons for > > them, and their existence, are in my view quite related.) > > Yet the question still remains whether the government has an > > obligation to help subsidize this discriminatory practice, by > > waiving nondiscrimination conditions attached to various > > benefits (e.g., tax exemptions) that the groups seek. > > > > > -----Original Message----- > > > From: [EMAIL PROTECTED] > > > [mailto:[EMAIL PROTECTED] On Behalf Of > > > Newsom Michael > > > Sent: Friday, March 03, 2006 11:21 AM > > > To: Law & Religion issues for Law Academics > > > Subject: RE: State RFRA > > > andnonreligiousgroupsthathaveconscientiousobjections > > > toantidiscrimination laws > > > > > > > > > My point is that the ministerial exception should be > > broadly construed > > > and applied. In the specific context of clergy, the state > > should not > > > quickly or easily claim that a religious organization is > ineligible > > > for a subsidy if it is guilty of what the state claims is > > > discrimination. > > > > > > The question is not really about discrimination, it is about > > > discrimination in the context of selecting clergy. > Because of this, > > > then there are some serious First Amendment issues that > have to be > > > considered. Hence a liberal and broad application of the > exception > > > seems to make sense. > > > > > > If the question were about child marriage, or renting > apartments the > > > result might be different. Surely there is something > rather unique > > > and special about the relation between a religious > community and its > > > clergy, something not found in your examples. > > > > > > -----Original Message----- > > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > > > Sent: Friday, March 03, 2006 12:23 PM > > > To: Law & Religion issues for Law Academics > > > Subject: RE: State RFRA and > > > nonreligiousgroupsthathaveconscientiousobjections to > > > antidiscrimination laws > > > > > > Well, I was using the secular law definition of discrimination, > > > which (at least insofar as it's relevant > > > here) is pretty much Stevens's test in Manhart: Does the > > > institution "treat[] a person in a manner which but for that > > > person's sex would be different"? If Jesus Christ > > > deliberately chose only men as apostles, then that was > > > discrimination -- obviously not illegal either then or now > > > (now because they weren't paid, and thus weren't his > > > employees), but that's a separate question than whether it's > > > discrimination. By way of analogy, consider a landlord who > > > refuses to rent to unmarried couples or same-sex couples, > > > because he believes that renting to them would constitute > > > aiding and abetting fornication or homosexual conduct. He > > > may not see his conduct as discrimination, just as compliance > > > with God's will. Yet discrimination it is. > > > > > > Nor am I quite sure why it would be unconstitutional > > > for the state to "indulge in" or "act upon" such statements > > > (i.e., that selecting priests based on sex is > > > discrimination). If the claim is that it expresses > > > disapproval of a faith to condemn as illegal conduct that > > > mirrors what the faith's holy figures do, that can't be quite > > > right. That Jesus was said to have driven the moneylenders > > > from the Temple doesn't mean that such conduct would be > > > constitutionally protected if conducted by a religious person > > > (or a church official or even a self-described Messiah) > > > today. Mohammed's marriage to a child bride may have been > > > perfectly proper by the standards of the time and place in > > > which he lived, but it doesn't mean that secular law can't > > > ban it today; it can ban it, even if such conduct is being > > > performed as a religious sacrament. > > > > > > If the claim is that denying subsidies to a religious > group because > > > it fails to satisfy a general condition attached to subsidy is > > > unconstitutional or a RFRA violation, that's less > implausible. Yet > > > I wonder why we should take this view. The government subsidizes > > > all sorts of things because of its own reasons. It subsidizes > > > public schools, but not private religious schools, even though > > > educating one's child in a pervasively religious > atmosphere may be a > > > sacrament to some people. It subsidizes child care, but not > > > people who stay home to raise their children, even though > > > that's a sacrament to some people, too. It subsidizes > > > (through tax exemption) nonlobbying, nonelectioneering > > > nonprofit speech but not lobbying or electioneering nonprofit > > > speech. Why can't it equally choose to subsidize those > > > nonprofits that don't discriminate, but not those that do > > > discriminate (even though the latter may have a > > > constitutional right to discriminate, just as parents have > > > the right to send their kids to private schools, and just as > > > groups have the right to lobby or electioneer)? > > > > > > Eugene > > > > > > Michael Newsom writes: > > > > > > > 1) To say that a religious organization chooses its clergy > > > > "discriminatorily" requires some serious and sober > > consideration of > > > > the theology of that organization. The exemption ought to apply > > > > broadly if only to keep secular entities out of an area in > > > which they > > > > have precious little expertise (quite apart from any > > > consideration of > > > > any constitutional norms). To say that the refusal to > > ordain women > > > > is "discrimination" without consideration of the > context begs the > > > > question. One could just as easily say that Jesus Christ > > > > discriminated against women by only choosing men as > > apostles. For > > > > the state to indulge in such statements -- and to act > > upon them -- > > > > is precisely what the Religion Clauses prohibit. To subsidize > > > > religious organizations that ordain women and to refuse > > to subsidize > > > > religious organizations that do not is to establish a > > preference for > > > > some religions over others. Doesn't that offend the > > > > non-establishment principle? If, of course, one chooses not > > > > to recognize that religion and religious institutions occupy > > > > a special place in the constitutional order, then perhaps the > > > > violation is not so clear. But it is a mistake not to > > > > recognize the special constitutional importance of religion, > > > > and hence, a mistake not to recognize that such differential > > > > treatment offends the principle. > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu > > > To subscribe, unsubscribe, change options, or get password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this large list cannot > be viewed > > > as private. Anyone can subscribe to the list and read > messages that > > > are posted; people can read the Web archives; and list > members can > > > (rightly or wrongly) forward the messages to others. > > > > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu > > > To subscribe, unsubscribe, change options, or get password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this large list cannot > be viewed > > > as private. Anyone can subscribe to the list and read > messages that > > > are posted; people can read the Web archives; and list > members can > > > (rightly or wrongly) forward the messages to others. > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, > > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be > > viewed as private. Anyone can subscribe to the list and read > > messages that are posted; people can read the Web archives; > > and list members can (rightly or wrongly) forward the > > messages to others. > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, > > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be > > viewed as private. Anyone can subscribe to the list and read > > messages that are posted; people can read the Web archives; > > and list members can (rightly or wrongly) forward the > > messages to others. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.