Hasn't that ship sailed already? We know from Bob Jones that religious
universities are subject to loss of their charitable tax exemption if they
discriminate, and that the government indeed can and does use the threat of
withdrawing funds as a means for changing church policy. Maybe in some
super-pure world whether religious institutions didn't even get tax exemptions,
they could resist such restrictions. But even there, of course, the government
would have broad power to impose restrictions, just in its capacity as
sovereign and even without funding; recall, for instance, the New Jersey
wedding venue case, where a church-owned venue was held subject to
antidiscrimination law even without any funding hook.
Surrendering any Free Exercise Clause claims to equal treatment in
funding, as a means of trying to strengthen their claims to autonomy, would be
a poor choice for churches, I think. Those who want to impose
antidiscrimination laws on churches and church-owned organizations generally
aren't terribly interested in giving churches such autonomy, whether or not
churches get equal access to generally available benefits.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Trinity Lutheran Church - will churches have to extend "equal
> protection" to all when it comes to use?
>
> In reading the briefs on the Trinity Lutheran Church case, I see a lot of
> reference
> to churches being denied "equal protection" when state laws specifically
> prohibit
> them from participating in otherwise neutral state aid programs that are
> available to other civic institutions. Yet churches often vigorously argue
> that
> they are exempt from "equal protection" when it comes to access to their
> facilities.
>
> But in turn, let's say that Trinity wins the case - does that mean that
> churches
> that receive the funding could be subject to discrimination claims brought by
> citizens who are prohibited from accessing the infrastructure, or are
> discriminated against while on the infrastructure, because the church teaches
> against their protected class (i.e. religion, gender, sexual orientation,
> etc.)?
>
> I'm thinking that churches that argue for equal protection when it comes to
> compelling state funding of their institutions, and claim that they should be
> on
> an equal footing when it comes to similar secular civic organizations, should
> recognize that civic organizations are also held to a higher standard when it
> comes to discrimination claims.
>
> Churches that receive funding and simultaneously seek to reserve the right to
> discriminate should expect that they will be held to the same
> non-discrimination
> standards as other civic organizations as a condition of receiving such
> funding
> and that they will need to take "equal protection" into account when it comes
> to
> people and other organizations which seek to access and use churches' state-
> funded infrastructure.
>
> Put simply, could Trinity Lutheran Church be a Trojan Horse?
>
> I would be interested in your thoughts.
>
> Michael Peabody, Esq.
> ReligiousLiberty.TV
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