While the "equal treatment" theory is appealing, and I think the court in
general is too focused on liberty and not enough on equality, I think using
an equality/non-discrimination approach is neither constitutionally
mandated in all settings nor is it possible to do "religiously". The
constitution itself treats religion as a special category and so that may
mean something. Secondly, the interests based on religion are not always
qualitatively the same as interests based on philosophy of life or other
values.
On Wed, Feb 24, 2016 at 8:24 PM, James Oleske <jole...@lclark.edu> wrote:
> A very belated thanks (the semester has gotten away from me) to Eugene for
> his clarification below. Although recognizing that the Court has not
> adopted it, Eugene endorses an equal-treatment theory that runs in both
> directions, prohibiting religion-only accommodations as well as
> religion-only exclusions. I think this position has considerable normative
> appeal. I also think Eugene's backup position -- equal treatment with
> respect to funding -- has considerable normative appeal. I'm not convinced,
> however, that either position is constitutionally mandated (i.e., that all
> religion-only accommodations are laws respecting an establishment of
> religion and that all exclusions of religion from funding programs are
> prohibitions of free exercise).
>
> - Jim
>
>
> On Mon, Jan 18, 2016 at 9:13 AM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>> 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> 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
>>
>>
>>
>>
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--
Prof. Steven Jamar
Howard University School of Law
Associate Director for International Programs, Institute for Intellectual
Property and Social Justice (IIPSJ)
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