Both of you are objecting to the "disaster" language. Sorry, I'm a little
prone to hyperbole. But I didn't think the importance of religious staffing
was all that controverted. Charitable choice's proponents obviously believe
in it. And its opponents believe in it too: they usually rely on the
importance of religious staffing (in conjunction with the discrimination
argument) to argue against funding religious institutions altogether.
You both write as if religious groups must act in a completely secular
fashion when giving services, and therefore there is no added loss by losing
the right to discriminate. But religious providers are not forced to
refrain from religious speech, take down religious icons, or generally
conceal their religious identities. They are allowed to be religious -- and
perhaps the central part of an non-profit being religious is it having staff
who are themselves religious. That was the point of charitable choice.
They are required to provide entirely secular services to the public of
course -- but that won't stop from thinking of themselves, their
institution, and their work as religious.
Professor Brownstein, you write, "As for the argument that most religious
employers do not discrimiante on the basis of religion in hiring and that
people of different religious faiths would not want to work for an employer
that wants to discriminate against them -- well we don't lose much
of anything if those organizations are told that they can't discriminate in
hiring. Either they don't want to discriminate anyway or no one from a
different faith will seek work with their program whether they discriminate
or not."
This suggests that the most important thing should be the equal funding of
religious and secular institutions. The hiring issue is not all that
important, because if religious staffing is guaranteed, employees won't face
too much of a burden. And if it isn't, religious employers won't be too
hurt. Maybe. But I think the would-be employee and the religious employer
are in different positions. Religious employers often have small
denominational constituencies. So if you have a Jewish (or Muslim)
Community Center in Pittsburgh that has to accept all employees, it will
quickly lose its Jewish (or Muslim) nature. On the other hand, because
religious employers make up such a small fraction of government providers,
potential employees have other options (not to even include the social
service jobs with employers that are not government providers). This
argument doesn't wholly convince me -- employers of course generally have
much more power than employees -- but I don't think it's trivial.
Finally, as regards beneficiary discrimination: I really don't know if there
is a _constitutional_ prohibition on beneficiary discrimination. The
state-action argument still seems weak. Perhaps one can argue that the
state is more responsible for private discrimination in beneficaries than in
hiring because assisting beneficaries was the point of its program in the
first place. But I'm not sure. I'm definitely open to the idea, but it
seems like it will require the breaking of new doctrinal ground....
From: "Marty Lederman" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Subject: Re: Boy Scouts, Expressive Association, Government
Benefits,Religious Discrimination, Etc.
Date: Thu, 9 Mar 2006 22:49:06 -0500
Thanks again for the thoughtful response, Christopher. A few quick
reactions:
1. It's not only about equality, because virtually none of these programs
treats all applicants "equally": Some are favored over others for a variety
of subjective reasons. And the EC question therefore is whether it's ok for
government administrators, when making discretionary decisions as to which
organizations get the competitive $$, to be indifferent to the fact that
some applicants, but not others, discriminate on the basis of religion.
2. You write that "religious organizations should not be able to use
government resources to discriminate against beneficiaries . . . but I do
think they should retain the right to discriminate in their staffing." I
know that this distinction tracks many people's instincts on this question
-- and perhaps it's the ideal policy distinction -- but what's the good
argument that the Constitution draws a similar distinction? If the EC
doesn't bar the use of the government dollars to discriminate in employment,
why would it bar the use of those same dollars to discriminate w/r/t
beneficiaries? (BTW, "charitable choice" does not categorically draw the
line this way: Several state and local programs continue to prohibit
employment discrimination.)
3. "Taking away a religious organization's right to religiously staff seems
like a disaster." Why is that the case, with respect to a social-services
program that itself must be completely secular in operation? I understand
why a religious organization might want to retain a coreligionist test even
in performing such a secular function -- see Justice Brennan's Amos
concurrence, which we discuss at pages 29-30 of this OLC memo:
http://balkin.blogspot.com/2005/06/government-funding-of-religious.html.
But a "disaster"? I don't quite see that --especially since numerous
religious organizations which otherwise prefer coreligionists have been
abiding by non-discrimination rules for decades in government-funded
programs.
4. I don't know whether the concern about employment discrimination is as
important as it has been made out to be. But there is at least one recent
case where it's at issue, w/r/t to a fairly prominent employer, the
Salvation Army:
http://www.religionandsocialpolicy.org/docs/legal/cases/Salvation_Army_Hiring_Ruling-NY_Dist.pdf
The court's ruling is not terribly coherent, but I think it will have a good
deal of impact, at least until more cases are decided.
I briefly discuss these issues, including treatments by OLC and
Amar/Brownstein, here:
http://balkin.blogspot.com/2005/06/government-funding-of-religious.html
----- Original Message -----
From: "Christopher C. Lund" <[EMAIL PROTECTED]>
To: <religionlaw@lists.ucla.edu>
Sent: Thursday, March 09, 2006 10:23 PM
Subject: RE: Boy Scouts, Expressive Association, Government Benefits,
Religious Discrimination, Etc.
> This is all going to end up mimicking the charitable-choice debates. It
> doesn't matter whether we're talking about "special" or "general"
benefits
> being distributed. As long as the criteria for distribution are secular,
> then these are really the same questions. (Because, in either case, all
> we're talking about really is equality -- i.e., the right of religious
> organizations to receive funds like similarly situated secular
> organizations.)
>
> I think religious organizations should not be able to use government
> resources to discriminate against beneficiaries (your sports field
analogy),
> but I do think they should retain the right to discriminate in their
> staffing. That's how charitable choice draws the line, and it makes
sense
> to me.
>
> The problem is that religious liberty pushes us many different directions
at
> once. We (or most of us) want religious organizations to be able to
receive
> access or funds on the same terms as secular ones. We want religious
> organizations to generally have the right to choose staff along religious
> lines. And we also want employees of government-funded organizations not
to
> be victims of religious discrimination. But we can't get all three.
> (Shameless plug: I talk about the intractability of this problem in a
> symposium piece, Seeing the Charitable-Choice Debate Through the Lens of
> Arrow's Impossibility Theorem, 40 Tulsa L. Rev. 321.)
>
> Taking away a religious organization's right to religiously staff seems
like
> a disaster. And simply barring religious organizations from government
> funds pressures them to give up their religious identity. I think the
> option that does the least harm to religious liberty is giving up on the
> third. I simply don't think there are all that many cases where
employees
> of government-funded religious organizations face religious
discrimination.
> I think this is for a number of reasons: religious organizations make up
a
> small fraction of the labor market, most religious organizations choose
not
> to discriminate on the basis of religion, and people tend naturally not
to
> want to work for religious groups that would want to discriminate against
> them. I think there is a reason why, ten years after the passage of
> charitable choice, there are no decided cases on the constitutionality of
> charitable choice's religious-staffing provision. These cases are just
very
> hard to find. That's why it seems so strange to use this concern as a
real
> reason to oppose charitable choice -- it's a concern that is mostly
> hypothetical.
>
>
> From: "Alan Brownstein" <[EMAIL PROTECTED]>
> Reply-To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu>
> To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
> Subject: RE: Boy Scouts, Expressive Association, Government
> Benefits,Religious Discrimination, Etc.
> Date: Thu, 9 Mar 2006 11:35:06 -0800
>
>
>
> I think there are constitutional problems with government providing
> religious organizations preferential access to government benefits --
> even when the religious organization qualifies under some secular
> criteria.
>
> For example, what if the religious group that receives the benefit
> discriminates on the basis of religion in hiring or in providing
> services? In Mr. Lund's example, is it relevant that the religious
> employer receiving a special tax status because it is the largest
> employer in the County will not hire Jews, Moslems, and Catholics?
>
> Similarly, if the County provides a subsidy lease to a religious
> organization with regard to a County park or sports field (because the
> religious organization offers the County the best deal in developing and
> maintaining park facilities) would it be relevant to the constitutional
> analysis that the religious lessee will discriminate on the basis of
> religion in determining who gets access to the park or sports fields?
>
> Also, because religious groups are not similarly situated with regard to
> their beliefs and practices, it is often not that difficult to develop
> secular criteria that have predictable preferential consequences for
> particular faiths.
>
> I think the constitutional analysis has to consider more than the
> government's purpose in these cases.
>
> Alan Brownstein
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Christopher C.
> Lund
> Sent: Thursday, March 09, 2006 9:09 AM
> To: religionlaw@lists.ucla.edu
> Subject: RE: Boy Scouts, Expressive Association, Government Benefits,
> Religious Discrimination, Etc.
>
> Professor Lederman has brought up these cases where a religious
> organization
> (usually the Boy Scouts) is given preferential access to a government
> forum
> or other government benefit -- Evans, Winkler, Barnes-Wallace, etc. And
> I
> think most will agree that the government cannot generally prefer
> religious
> organizations over secular ones in giving out benefits.
>
> But there seem to me to be two separate classes of these cases: (1) when
>
> religious organizations get preferential treatment because they are
> religious, and (2) when religious organizations get preferential
> treatment
> because they happen to qualify under some secular criteria. I think
> only
> cases in (1) are constitutional problems, but there seem to be more and
> more
> claims that cases in (2) are unconstitutional as well. (A number of
> public-interest organizations take that position, and I take it from his
>
> comments that Professor Lederman may as well.)
>
> I don't think cases in (2) are necessarily constitutional problems. I
> think
> it's natural to think of the Establishment Clause as flatly preventing
> religious groups from getting more from the government than secular
> groups.
> But I think it's often more complicated than that -- because there is
> often
> more than one secular baseline. Say a County has generally applicable
> tax
> provisions, but also has an ordinance giving special tax status to the
> the
> largest employer in the County. I don't think there's a problem with a
> religious group claiming that benefit, even if secular groups don't get
> it.
> The real issue, for me, is incentives: if the County only allows secular
>
> groups to get that special tax package, large religious organizations
> that
> could potentially qualify will be pressured to secularize. (An
> unconstitutional pressure, I think, similar to that which would result
> if
> only religious groups could qualify for the tax package.)
>
> So I think these cases about the Boy Scouts are more difficult than they
>
> seem. For it's not merely a question of whether the Boy Scouts are a
> religious group, it's also a question of whether they are being
> preferred
> because they are a religious group. The former question is perhaps easy
> to
> answer; the latter question much much harder.
>
>
> _______________________________________________
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>
>
> _______________________________________________
> 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
>
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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