My point is that there are some relationships that have a kind of intimacy that the government ought to leave alone. I think that the Religion Clauses compel the government to leave the intimate relation between clergy and religious institutions alone.
The broader, and obvious, point is that not all discrimination is bad. There are policy-based and legal reasons why some discrimination has to be permitted, isn't that true? Why is this odd? -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 09, 2006 12:38 AM To: Law & Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws 1) My definition of "discrimination" here is simply the one the Court applied in Manhart and various other cases: The principle that "discrimination" means that an entity "treats a person in a manner which but for that person's sex would be different." City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978); International Union v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983); see also EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984); Allison-LeBlanc v. Department of Pub. Safety & Corrections, 671 So. 2d 448, 452 (La. Ct. App. 1995); DiBiase v. Smithkline Beacham Corp., 847 F. Supp. 341, 348 (E.D. Pa. 1994). The discrimination may be quite rational, and not at all based on hostility -- the discrimination in Manhart itself was based on the reality that women live longer than men, a reality that pension plan funding schemes, which are after all based on group-based statistics, can quite reasonably consider. But the Court concluded that this was prohibited discrimination. 2) The principle under which Congress would deny exemptions to groups that discriminate in this way is the one President Kennedy elaborated as support for Title VI (albeit applied to sex as well as race): "public funds, to which all taxpayers of all races [and both sexes] contribute, not be spent in any fashion which . . . subsidizes . . . racial [and sex] discrimination." I should stress again that I don't think this principle ought to be used with regard to tax exemptions and clergy hiring -- but I don't think it's unreasonable or incomprehensible for others to disagree with me on this. The question is whether adopting this principle to deny tax exemptions to all groups that discriminate based on sex would violate the First Amendment; my tentative thinking is that it probably won't, and that the Church's (and other groups') right to discriminate based on sex free from government *prohibition* doesn't necessarily imply that the government must subsidize the exercise of this right. 3) Denying government benefits to people who refuse to marry people with green hair is an odd hypo; I find it hard to see any rational basis for singling out green hair this way. On the other hand, if the government denied the child care tax credit to parents who discriminated based on race or sex in hiring a child care provider, I would think that's constitutional. And, as we know, if the government denies groups a tax exemption because of their exercise of their constitutionally protected rights to lobby or electioneer, or otherwise refuses to subsidize a wide range of constitutional rights, that too is permissible. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Wednesday, March 08, 2006 12:58 PM > To: Law & Religion issues for Law Academics > Subject: RE: > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst > oantidiscriminationlaws > > > I'm afraid that I don't understand your non-discrimination > principle. You have not indicated whether you think that it > is appropriate to deny a government benefit to individuals > who refuse to marry people with green hair. If it is > inappropriate to do so then I am lost. Marriage is an > intimate relation, to be sure, but so to is the relation > between clergy and laity in the context of a religious > institution, and we have 16 words in the First Amendment that > tell us that religion is something special. > > Generalized appeals to "discrimination" fail to get at the > real issues involved. > > > -----Original Message----- > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > Sent: Wednesday, March 08, 2006 12:47 PM > To: Law & Religion issues for Law Academics > Subject: RE: > StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst > oantidiscr > iminationlaws > > 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. > > _______________________________________________ > 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.
