Thank you. It is helpful and yet I see an ultimate collision between the dischordant rights to both be free from discrimination and also to discriminate.
I suppose what I'm looking for is what happens when a church is able to get funding from the state for a project but then relies on free exercise to discriminate against a protected class in how that state-funded project is used. For instance, let's say that Trinity Lutheran gets it's playground and the state has a non-discrimination requirement. Trinity normally uses the property but occasionally rents it out ay a nominal cost for events. An same-sex couple wants to get married there (obviously this particular example isn't perfect and I don't know what the church thinks about same-sex marriage) and the church declines the request citing religious reasons. In this scenario, Trinity would have achieved access to state-funded infrastructure by prevailing in a claim of anti-religious discrimination by the state, but then would claim that it could in turn discriminate in the use of this same infrastructure against LGBTQ persons. And if the state tried to enforce a non-discrimination policy, the church would claim the protection of church-state separation and defend its right to discriminate. So suddenly the already limited state resources are further hampered by virtue of the fact that the church is religious. So this circles around to the question - can a church that intends to use state funding in a discriminatory manner really present itself on an equal footing with secular non-profits when applying for state grants, or does the religious institution's discriminatory bent need to be taken into account when a state is dispensing limited state grants funds? Michael Peabody, Esq President, Founders First Freedom Foundersfirstfreedom.org On Apr 20, 2017 5:51 PM, "Christopher Lund" <l...@wayne.edu> wrote: > I don’t think there’s anything necessarily inconsistent with the two > positions you describe. Religion might be entitled to special treatment in > some cases, but equal treatment in others. (Doesn’t everyone, at some > level, believe that?) Certainly the Court does. The Court has, for > example, said that ministers must be accorded special (not equal) treatment > in some constitutional contexts (like their ability to bring > employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that > ministers must be accorded equal (not special) treatment in other > constitutional cntexts (like their ability to sit in the constitutional > convention—see McDaniel v. Paty). And the Court was unanimous both times! > > > > For the classic reconciliation of the pro-exemption position and the > equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and > Substantial Neutrality, available here, http://via.library.depaul.edu/ > cgi/viewcontent.cgi?article=2059&context=law-review. Or just read this, > http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html. > I’d add my own thoughts, but I’m running out of time. > > > > Also, by the way, you could have just as easily framed your point the > other way: Why do people insist that religious groups are not entitled to > special exemptions because of some dominant equality principle, but then > yet insist that religious groups cannot even be treated equally when it > comes to funding? > > > > (And I should say that I think both of those framings—both yours and > mine—are misleading and ultimately too harsh on the people who hold those > views.) > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > Website—http://law.wayne.edu/profile/christopher.lund/ > > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Michael Peabody > *Sent:* Thursday, April 20, 2017 8:06 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Trinity Lutheran and the ERISA cases - Do Churches Want > Special Treatment or Not? > > > > This term the Supreme Court is hearing two cases involving whether or not > churches should be treated the same as other non-profit organizations, and > I want to make sure I have this straight. > > > > First, in *Advocate Health Care Network v. Stapleton*, heard March 27, > religious hospitals are claiming that they should be treated differently > from other non-profit organizations when it comes to whether they need to > comply with ERISA regulations that require them to adequately fund employee > pension plans. If I understand it correctly, their central argument is that > they are so closely affiliated with churches that their plans are, > effectively, "established and maintained ... by a church." > > > > In the hospital ERISA cases, religious institutions are demanding special > treatment BECAUSE they are religious. > > > > Now, in *Trinity Lutheran Church v. Pauley*, heard April 19, a church is > claiming that they should NOT be treated differently from other non-profit > organizations when it comes to whether or not they can participate in a > state program that provides funding for playground resurfacing material > when doing so would violate the state constitution. > > > > In the Trinity Lutheran case and as indicated by amici, religious > institutions are demanding that they be treated THE SAME as secular > non-profit organizations. > > > > So do churches want to be treated in a discriminatory manner or not? It > seems that if regulations could impose some kind of financial > responsibility on them, church-state separation applies. Yet, if they can > get some infrastructure upgrade benefit, churches want to fully participate > with no such separation. > > > > But what will happen if the state, in return, imposes non-discrimination > provisions on the churches for the use of the state-funded infrastructure? > Would they still be treated the same as other non-profits and be required > to open their facilities to all, or will they then be able to assert the > protection of church-state separation? > > > > > > Michael Peabody, Esq. > President, > > Founders First Freedom > > foundersfirstfreedom.org > > > > > > _______________________________________________ > 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.
