Eugene, I believe that the idea of revoking the Catholic Church's tax-exemption because of their all-male priesthood is fraught with constitutional problems (for some of the reasons already stated by others). But I am more interested in your statement, which I agree with, concerning such revocation being undesirable as a policy matter. This implies that the public benefits of enforcing certain anti-discrimination laws against the church are outweighed by something else. I am curious to know the policy reasons you had in mind.
-Roger Severino -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, March 03, 2006 3:40 PM To: Law & Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws 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 > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Friday, March 03, 2006 12:09 PM > To: Law & Religion issues for Law Academics > Subject: RE: State > RFRAandnonreligiousgroupsthathaveconscientiousobjectionstoanti > discriminationlaws > > > In this particular, specific instance, I believe that the > answer is "yes." Otherwise, the state winds up making what > are essentially and unavoidably theological judgments. That > is not true in the other examples that you give. > > -----Original Message----- > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > Sent: Friday, March 03, 2006 2:25 PM > To: Law & Religion issues for Law Academics > Subject: RE: State RFRA > andnonreligiousgroupsthathaveconscientiousobjectionstoantidisc > rimination > laws > > I actually agree that religious groups should have a > right to discriminate in choice of clergy, much as > nonreligious groups should generally have a right to > discriminate in choice of leaders, speakers, and members (see > Boy Scouts v. Dale). (The precise contours of the two rights > may be somewhat different, but the underlying reasons for > them, and their existence, are in my view quite related.) > Yet the question still remains whether the government has an > obligation to help subsidize this discriminatory practice, by > waiving nondiscrimination conditions attached to various > benefits (e.g., tax exemptions) that the groups seek. > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > Newsom Michael > > Sent: Friday, March 03, 2006 11:21 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: State RFRA > > andnonreligiousgroupsthathaveconscientiousobjections > > toantidiscrimination laws > > > > > > My point is that the ministerial exception should be > broadly construed > > and applied. In the specific context of clergy, the state > should not > > quickly or easily claim that a religious organization is > > ineligible for a subsidy if it is guilty of what the state > > claims is discrimination. > > > > The question is not really about discrimination, it is about > > discrimination in the context of selecting clergy. Because > > of this, then there are some serious First Amendment issues > > that have to be considered. Hence a liberal and broad > > application of the exception seems to make sense. > > > > If the question were about child marriage, or renting > > apartments the result might be different. Surely there is > > something rather unique and special about the relation > > between a religious community and its clergy, something not > > found in your examples. > > > > -----Original Message----- > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > > Sent: Friday, March 03, 2006 12:23 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: State RFRA and > > nonreligiousgroupsthathaveconscientiousobjections to > > antidiscrimination laws > > > > Well, I was using the secular law definition of > > discrimination, which (at least insofar as it's relevant > > here) is pretty much Stevens's test in Manhart: Does the > > institution "treat[] a person in a manner which but for that > > person's sex would be different"? If Jesus Christ > > deliberately chose only men as apostles, then that was > > discrimination -- obviously not illegal either then or now > > (now because they weren't paid, and thus weren't his > > employees), but that's a separate question than whether it's > > discrimination. By way of analogy, consider a landlord who > > refuses to rent to unmarried couples or same-sex couples, > > because he believes that renting to them would constitute > > aiding and abetting fornication or homosexual conduct. He > > may not see his conduct as discrimination, just as compliance > > with God's will. Yet discrimination it is. > > > > Nor am I quite sure why it would be unconstitutional > > for the state to "indulge in" or "act upon" such statements > > (i.e., that selecting priests based on sex is > > discrimination). If the claim is that it expresses > > disapproval of a faith to condemn as illegal conduct that > > mirrors what the faith's holy figures do, that can't be quite > > right. That Jesus was said to have driven the moneylenders > > from the Temple doesn't mean that such conduct would be > > constitutionally protected if conducted by a religious person > > (or a church official or even a self-described Messiah) > > today. Mohammed's marriage to a child bride may have been > > perfectly proper by the standards of the time and place in > > which he lived, but it doesn't mean that secular law can't > > ban it today; it can ban it, even if such conduct is being > > performed as a religious sacrament. > > > > If the claim is that denying subsidies to a religious > > group because it fails to satisfy a general condition > > attached to subsidy is unconstitutional or a RFRA violation, > > that's less implausible. Yet I wonder why we should take > > this view. The government subsidizes all sorts of things > > because of its own reasons. It subsidizes public schools, > > but not private religious schools, even though educating > > one's child in a pervasively religious atmosphere may be a > > sacrament to some people. It subsidizes child care, but not > > people who stay home to raise their children, even though > > that's a sacrament to some people, too. It subsidizes > > (through tax exemption) nonlobbying, nonelectioneering > > nonprofit speech but not lobbying or electioneering nonprofit > > speech. Why can't it equally choose to subsidize those > > nonprofits that don't discriminate, but not those that do > > discriminate (even though the latter may have a > > constitutional right to discriminate, just as parents have > > the right to send their kids to private schools, and just as > > groups have the right to lobby or electioneer)? > > > > Eugene > > > > Michael Newsom writes: > > > > > 1) To say that a religious organization chooses its clergy > > > "discriminatorily" requires some serious and sober > consideration of > > > the theology of that organization. The exemption ought to apply > > > broadly if only to keep secular entities out of an area in > > which they > > > have precious little expertise (quite apart from any > > consideration of > > > any constitutional norms). To say that the refusal to > ordain women > > > is "discrimination" without consideration of the context begs the > > > question. One could just as easily say that Jesus Christ > > > discriminated against women by only choosing men as > apostles. For > > > the state to indulge in such statements -- and to act > upon them -- > > > is precisely what the Religion Clauses prohibit. To subsidize > > > religious organizations that ordain women and to refuse > to subsidize > > > religious organizations that do not is to establish a > preference for > > > some religions over others. Doesn't that offend the > > > non-establishment principle? If, of course, one chooses not > > > to recognize that religion and religious institutions occupy > > > a special place in the constitutional order, then perhaps the > > > violation is not so clear. But it is a mistake not to > > > recognize the special constitutional importance of religion, > > > and hence, a mistake not to recognize that such differential > > > treatment offends the principle. > > _______________________________________________ > > 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. > > _______________________________________________ > 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.
