With respect, I am not sure that characterizing the relation as akin to that of employer and employee tells us how to decide the question. I cannot imagine that there is a strong governmental interest in the gender of clergypersons. Any expression or statement of such an interest clearly results in meddling by the state, not to mention taking sides in a contentious dispute that has deeply upset many Christians, at least.
A secular category, like employment, cannot do justice to the "employment" (solely for the sake of discussion) of clergy. Consider, for example, the mess that the Court made of things in Jones v. Wolf. Thanks to "neutral principles, hierarchical religious institutions, institutions that have been such for 2000 years are magically converted into congregationalist institutions for purposes of working out or resolving church property disputes. Jones tramples on both Religion Clauses largely because of the totally inapt notion that religious or church property disputes are essentially property disputes, not religious disputes. We should be loath to replicate the categorical error of Jones v. Wolf. One final point: it is by no means clear that the relation between a religious institution and its clergy is as simple as the typical employment relation would suggest. This is, of course, true because the relation is also a RELIGIOUS relation. That is, the sum and substance of the problem. -----Original Message----- From: Andrew Wyatt [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 08, 2006 6:26 PM To: 'Law & Religion issues for Law Academics' Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws I'm not denying the special nature of the clergy-laity relationship, in fact or in law. I'm simply trying to answer your question: Why might a government properly deny benefits in some instances of religiously-motivated discrimination (e.g. withholding funding from churches that discriminate against women in the hiring of clergy) but not in others (e.g. denying unemployment benefits to a man who refuses to marry Jewish women)? Bearing in mind that IANAL, it seems that courts have recognized a strong government interest where workplace discrimination in concerned. However, those interests may not be as strong in other forums, even if state instruments--say, civil marriage--are involved. If an individual refuses to enter into a civil marriage for discriminatory reasons, there may be a societal harm from that decision. But there seems to be some recognition that the societal harm from an employer refusing to hire someone for discriminatory reasons is far greater, sufficient perhaps to warrant government action of some kind. There may be broad economic ripples emanating from the latter sort of discrimination, as Eugene noted. To my eye, the power that employers have over their employees seems qualitatively different than the co-equal character of the spousal relationship. Andrew Wyatt _______________________________________________ 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.
