I’d prefer, generally speaking, a version of Justice Harlan’s view in Welsh and Walz is basically right: The government should neither discriminate in favor of or against religion; if religious exemptions are given, they should also be given to comparable secular objectors.
I think the result in Hosanna-Tabor is largely right, but I think (not quite consistently the Court, I realize) that the best approach would have been to focus on a conclusion that similar rights would be available for secular groups as well, under the Free Speech Clause. The KKK has to be free to choose its leaders based on race and religion; the Sierra Club has to be free to bar leaders from speaking out in ways that it views as anti-environmentalist, even when a state (such as my own California) categorically bars employers from setting up rules limiting their employees’ political activity. I realize that Hosanna-Tabor provides more protection than cases such as Boy Scouts v. Dale, because it doesn’t require a showing that the employment law substantially burdens the institution’s speech. If that is justifiable (and I think it probably is), it would simply because of the principle that the government may not decide the reasonableness of religious claims; inquiring what is the true reason for a religious institution’s dismissal of a ministerial employee would often risk violating that principle, so it may make sense to just categorically immunize employment decisions related to churches’ ministerial employees. But I realize that the Court has not taken my view on this, see Hosanna-Tabor and Cutter v. Wilkinson. The question then is what effect this should have on the general principle of no discrimination against religious people, practices, and institutions. It seems to me that it shouldn’t. That all religious groups get a rather modest special benefit in the form of a few constitutionally compelled exemptions (see Hosanna-Tabor) and that some religious people end up benefiting from religion-only exemption says quite little, I think, about the possible exclusion of religious people and institutions from the massive benefits offered by the modern welfare state, potentially ranging into the billions of dollars’ worth (e.g., when it comes to school choice funding programs). The better analogy, I think, is to ask how we deal with the question here – funding. Texas Monthly v. Bullock tells us that, given the Establishment Clause, the government can’t discriminate in favor of religious institutions when it comes to funding. (That’s one reason I’m skeptical about the parsonage exemption, one of the few really religion-preferential tax exemptions.) It seems to me quite consistent with that to read the Lukumi / McDaniel principle broadly as barring government discrimination against religion, including when it comes to funding. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, January 17, 2016 5:19 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: The Establishment Clause question in the Trinity Lutheran case An equal treatment theory also does not fit the "ministerial exception" constitutionally mandated in Hosanna-Tabor Lutheran Church v. EEOC. I wonder if Eugene, and others who question the Trinity Lutheran Church outcome, think that unanimous decision is incorrect. Sent from my iPhone On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit legislative exemptions available to religion but not non-religion, or just legislative burdens placed on religion but not non-religion? If only the latter, is it really a maximalist equal treatment theory? If both the former and the latter, is it remotely reconcilable with either current doctrine or longstanding tradition allowing legislative accommodation of religion? See Cutter ("Religious accommodations ... need not 'come packaged with benefits to secular entities'"). - Jim On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I share Sandy’s skepticism about the “play in the joints” locution, but I wonder why equal treatment doesn’t make sense as a maximalist theory? Consider Sandy’s auditoria hypothetical. It’s hard to infer much based on it, I think, because it’s hard to imagine the government actually building auditoria for private organizations. But let’s consider two more plausible versions: 1. The government builds a city auditorium, not for its own speech but to enable private organizations to speak. Churches would indeed have a First Amendment right to equal access to such an auditorium. See Rosenberger v. Rector. 2. The government offers property tax exemptions for a wide range of nonprofits, and makes contributions to such nonprofits tax-deductible. Thus, if a nonprofit is building an auditorium, it in effect gets a massive matching-grant subsidy from the government. There’s nothing nonsensical, it seems to me, about churches being entitled to use this subsidy for building their churches. Indeed, they get such a subsidy now, and it’s seen as constitutional. See Walz. And I think that, if some government decided to exclude churches from such subsidies (while making them available to a vast range of comparable nonprofits), that would indeed violate the Free Exercise Clause. Now one can argue that, as a matter of history, police, or what have you, the Free Exercise Clause should not be read as mandating equal treatment for religious observers in general, as to funding, as to some kinds of funding, or what have you. But I just don’t see why the equal access rule wouldn’t “make[] sense.” Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Levinson, Sanford V Sent: Sunday, January 17, 2016 9:58 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Establishment Clause question in the Trinity Lutheran case Shouldn't we admit that "play in the joints" is simply a euphemism for judicial balancing between the competing notions of no establishment, on the one hand, and free exercise+equality on the other. Neither makes sense as maximalist theory. The former would prohibit police protection, the latter would require the state to build churches if it auditoria for the people to use as gathering places to discuss important issues. So we rely on Rehnquist's and his successors' hunches as to where one should draw the line. We delude ourselves in believing that legal doctrine can work itself pure in this--or, for that matter, any other significant--area. "The life of the law is experience, not logic." The problem is that it is awkward for well-paid law professors to teach their students that law often comes down to the idiosyncratic views of the median justices and that it is basically foolish to believe there are true doctrinal rationales that can predict future decisions. Sandy Sent from my iPhone _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
