I am coming to this discussion a little late in the day, but I wonder whether Larson v. Valente (a decision I have been thinking about a lot lately) is relevant? Suppose the government funds a college scholarship program and provides that the funds can be used to attend any college "except a college operated by a religious denomination that does not permit women to be clergy." Does this law create a denominational preference that triggers strict scrutiny under Larson and the EC?
I think it does. It draws a line between religious colleges, and grants a preference to religious colleges operated by denominations that ordain women. Is there a compelling justification for this denominational discrimination? Does the state even have a legitimate interest in choosing sides about the qualifications for the clergy?
Cheers, Rick Duncan
"Volokh! , Eugene" <[EMAIL PROTECTED]> wrote:
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 st! rict 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 positio! n 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
> ta! king 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 th! e 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
> > &! gt; 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 co! uld 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.
> > > _______________________________________________
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
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