No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy?
Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein > Sent: Thursday, January 12, 2012 1:13 PM > To: Law & Religion issues for Law Academics > Subject: RE: Supreme Court sides with church on decision to fire > employee on religious grounds > > As you know, Tom, I don't assign as much weight to the distinction > between direct grants and vouchers as you, and the Court, do -- and my > analysis of voucher programs is multi-factored. But for the purposes > of this argument, let me point to two problems with the government > paying the salary of the employees of a religious institution who play > "an important role as an instrument of her church's religious message > and as a leader of its worship activities." First, government funding > will be used for religious instruction, proselytizing and worship -- > which I believe the Establishment Clause prohibits. > > Second, and more importantly for the present discussion, the core of > the Court's argument in Hosanna-Tabor is that government should not be > involved in decisions that affect the faith and mission of the church. > But the faith and mission of the church cannot be independent and > autonomous from government if the church is dependent on government > funding to pay the salaries of those who play an "important role as > an instrument of her church's religious message and as a leader of its > worship activities." > > I don't think the issue should be resolved by permitting government to > fund positions that fall within the ministerial exception if the > religious institution does not discriminate on race, nationality, > gender or disability, while allowing government to refuse to fund > those same positions if discriminatory criteria control the religious > institution's hiring decisions. That gives the government control over > the religious institution's core religious hiring decisions -- exactly > what the ministerial exception is intended to prohibit. I think that > these positions, because of their status and function, should not be > funded by government whether the religious institution exercises the full > extent of the authority it has under the ministerial exception or not. > > Alan > _______________________________________________ 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.
