A brief comment, my last for a few days at least due to press of other matters:
If the government says that those churches with a certain kind of mix of persons in their clergy are entitled to a tax-exempt charitable status (given to churches without regard to any proof beyond proof that they are a church), but that those churches with a different kind of mix of persons in their clergy are not so entitled, isn't there a colorable argument at least that the state is "establishing" the former group of churches? My point is that the Establishment Clause (and perhaps the Free Exercise Clause as well) may prohibit certain forms of discriminatory treatment of religious organizations that would be permitted in other contexts. The Constitution is very much concerned with preventing government from discriminating among religions. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, March 03, 2006 12:40 PM To: Law & Religion issues for Law Academics Subject: RE: State RFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscrimination laws Now this I'm not sure I quite grasp. Why is the state's judgment that the Catholic Church discriminates based on sex in hiring clergy -- followed by the application of a (hypothetical) generally applicable rule that sex-discriminatory groups aren't entitled to tax exemption (a rule, incidentally, that I wouldn't endorse as a policy matter) -- an "unavoidably theological judgment"? The Church is neither secretive nor ambiguous in its men-only rule for the priesthood. It's true that the state's decision would contradict the Church's theological views, but that's true of a vast range of state decisions. And it's true that the Church has a constitutional right to discriminate in choice of clergy; yet the government is not obligated to subsidize the exercise of constitutional rights. Eugene _______________________________________________ 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.
