Steve Could you resend your Orden Brief? How is life in Oregon? Marc -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Green Sent: Thursday, December 23, 2004 3:38 PM To: Law & Religion issues for Law Academics Subject: Re: charitable choice hypothetical
Putting aside any state nondiscrimination statutes or collective bargaining issues which would control the situation, the permissive accommodation and nonestablishment issues need to be addressed separately. If one follows Texas Monthly, Thorton and even Amos, it seems that the permissive accommodation would fail because: (1) the need to hire coreligionist bus drivers does not appear to be based on a free exercise burden or come close to the concern in Amos about a chilling impact on the autonomy & decisionmaking of the religious entity; and (2) that such preference burdens other persons (non-religious bus drivers in need of a job). However, I would acknowledge that the absence of a ground for accommodating does not necessarily equate with an impermissible advancement of religion. But I think Alan's characterization of the issue (placing labor under the control of a religious entity) is too broad. While charitable choice does such, it is with the facial assertion that those employees are not engaging in religious activity or engaged in religious functions but are providing surrogate public services. While the same may be true for the bus driver (is there a Christian way to drive?), in both situations the ability to discriminate enables the religious organizations' overall mission by ensuring a community of like believers at the government's expense. At least under Title VII the government is not funding the private discrimination. Steve -- Steven K. Green, J.D., Ph.D. Associate Professor Director, Center for Law and Government Willamette University College of Law 245 Winter St., SE Salem, OR 97301 503-370-6732 A.E. Brownstein wrote: > In reading arguments defending charitable choice provisions that permit > religious non-governmental providers to discriminate on the basis of > religion in hiring employees to staff government funded programs serving > public purposes -- even if the program is entirely supported by > government funds and is subject to various government regulations and > conditions, I began to think about the reach of these arguments. > > Proponents of discriminatory hiring argue: > > 1. This is an accommodation of the religious liberty interest of > religious individuals to work together with co-religionists. > > 2. The accommodation serves the legitimate secular purpose of permitting > co-religionists to work together. > > 3. The accommodation does not impermissibly advance religion. The reason > religion is not impermissibly advanced is, in part, because > > a. The discrimination is not invidious and the persons denied job > opportunities are not stigmatized by their exclusion from these job > opportunities. > > b. The religious liberty of persons denied employment because of > their religious beliefs is not burdened by being denied tax payer > funded, public purpose employment opportunities. > > Obviously, I strongly disagree with most of these arguments. But my > question is this. Suppose a state provides free school bus service to > students attending both private and public schools. May the state allow > religious private schools to select the bus driver transporting their > students to the school and insist that the driver must be of the same > faith as the school's teachers and administrators -- and may the state > grant such requests as an accommodation? (Or alternatively, when public > school teachers are assigned to provide remedial services to students at > a religious school, may religious schools be granted the accommodation > of choosing teachers of a particular faith to be assigned to those duties.) > > Wouldn't all of the above arguments apply to these situation? The > religious discrimination would be an accommodation of religious > individuals desire to work with co-religionists. (And., of course, the > state can take religion into account in accommodating religion.) The > accommodation would serve a secular purpose and not impermissibly > advance religion for all of the reasons argued above. > > If there is an Establishment Clause problem with these hypothetical > accommodations, what is it? It can't be that public resources (here > labor instead of capital) are placed under the control of religious > institutions which practice religious discrimination in using those > resources -- because that is what charitable choice does. > > Alan Brownstein > UC Davis > > _______________________________________________ > 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. _______________________________________________ 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.
