I'm confused about how the "deal" has changed.
The Title VII exemption allowing religious preferences by religious
organizations has remained the same since its expansion in 1972, and the
key cases rejecting its application to other types of discrimination were
decided in the 1980s -- the same period Eric refers to below. See Rayburn
v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) ("While the language of § 702 makes clear that religious institutions
may base relevant hiring decisions upon religious preferences, Title VII
does not confer upon religious organizations a license to make those same
decisions on the basis of race, sex, or national origin.") (collecting
cases).
The Court unanimously recognized the ministerial exception in 2012,
explicitly following the pattern established by the circuit courts since
the 1970s.
Sure, there are some commentators who opposed both the 1972 expansion of
the Title VII exemption and the Court's 2012 recognition of the ministerial
exception, but I'm having difficulty seeing how the prevailing
understanding of "church autonomy" to "hire and fire for religious reasons"
has changed.
- Jim
On Wed, Apr 26, 2017 at 2:47 PM, Marc Stern <ste...@ajc.org> wrote:
> That’s all true, but the deal used to be no funding and lots of church
> autonomy in return., including the right to hire and fire for religious
> reasons. The same folks who complain about government funding are quite
> willing to allow government regulation of religious organizations with our
> regard to funding.
>
>
>
> Marc D. Stern
>
> General Counsel
>
> AJC
>
> 212 891 1480 <(212)%20891-1480>
>
> 646 289 2707 <(646)%20289-2707> (c )
>
> 212 891 1495 <(212)%20891-1495> (f)
>
> ste...@ajc.org
>
> www.ajc.org
>
> Facebook.com/AJCGlobal <http://www.facebook.com/AJCGlobal>
>
> Twitter.com/AJCGlobal <http://www.twitter.com/AJCGlobal>
>
> [image: Description: cid:image005.jpg@01CFA04D.71B24C30]
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Eric J Segall
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> When I worked for DOJ in the late 80's and litigated a major Chapter (now
> I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer
> was a devout 7th Day Adventist who strongly feared government grants to
> religious schools would ultimately dissipate religious freedom. Many
> religious folks at the time held this view. I agree with Marty and Chris
> that this view seems to have largely disappeared.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
> On Apr 26, 2017, at 5:03 PM, Christopher Lund <l...@wayne.edu> wrote:
>
> Marty makes some good points here.
>
>
>
> It leads me back to a recurring thought I’ve had about *Trinity Lutheran*
> and *Dignity Health*. They don’t have much in common. But in both
> cases, the rationale for distinctive treatment rests on an old
> separationist rationale that few people believe anymore or even
> understand. “Separation for the sake of separation,” they will say. Marty
> talks about *Trinity Lutheran *this way and he’s right, but I think *Dignity
> Health* is strikingly similar. If *Dignity Health* were litigated today,
> and the religious exemption were requested under RFRA or *Sherbert/Yoder*,
> would it even raise a genuine issue? I assume not—I can’t see a cognizable
> burden on religion.
>
>
>
> Things are changing all around.
>
>
>
> Best,
>
> Chris
>
> ___________________________
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI 48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty
> Lederman
> *Sent:* Saturday, April 22, 2017 11:36 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> Yes, but neither before, nor during, nor after, that 14-year window
> (1971-1985) did the Court ever suggest that direct money payments to a
> church would be constitutional under the Establishment Clause -- let alone
> that a state would be constitutionally *prohibited *from adhering to such
> a bright-line rule, something that 39 states have done for 200 or so years
> (Missouri's prohibition having been in its Constitution when it joined the
> union in 1821). (And even in the states that do not have such an express
> prohibition, and within the federal government, I am not aware of *any
> *practice,
> until very recently, of direct money grants being given to churches. The
> examples cited at pages 6-9 of the Orthodox Jewish Congregations brief
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581&sdata=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D&reserved=0>
> (cited
> by Justice Alito at oral argument) are all very recent.)
>
>
>
> To the contrary, in the most recent direct funding case, * Mitchell*,
> Justice O'Connor's controlling opinion stated that there are “special
> dangers associated with direct money grants to religious institutions”—a
> “form of aid [that] falls precariously close to the original object of the
> Establishment Clause’s prohibition.” And even in *Rosenberger*, Justice
> Kennedy's majority opinion stated that “we have recognized special
> Establishment Clause dangers where the government makes direct money
> payments to sectarian institutions” and that “[i]t is, of course, true that
> if the State pays a church’s bills it is subsidizing it, *and we must
> guard against this abuse*.” (Both of these were, of course, in the
> context of "neutral" programs that did not *favor *religious recipients.)
>
>
>
> Chip is right that it is remarkable that not only has this longstanding
> *Establishment
> Clause *constraint been virtually forgotten, the Court is likely on the
> verge of replacing a "no funding" prohibition with a "must fund"
> requirement!
>
>
>
> He's also right that one major reason why this could happen is that the
> rationales for the "no funding" rule--in particular, Madison's
> church-autonomy-protective rationales--have virtually disappeared from the
> litigation, and from the public discourse more broadly. (Note, for
> instance, that in *Mitchell, *O'Connor refers to "the original object of
> the Establishment Clause’s prohibition" *without mentioning what it might
> be*.) One minor exception is the BJC amicus brief
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F07%2F15-577-BJC-Amici-Respondent.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581&sdata=AQNjtYnucD7Tnqs6gIEPABfb6o52GvUotej7kGih2%2Bg%3D&reserved=0>
> [disclosure: I consulted on it]; but its arguments, which were once so
> prominent in Religion Clause jurisprudence and scholarship, apparently no
> longer resonate with the audience that matters, including, perhaps, the
> author of *Rosenberger*, who once "recognized special Establishment
> Clause dangers where the government makes direct money payments to
> sectarian institutions” and purported to be committed to "guard[ing]
> against this abuse.”
>
>
>
> On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> Actually, the Court adhered to a strong no-aid principle from 1971 to
> 1985. There are no cases striking down aid programs before or after that
> window. And even in that window there were a lot more than three pence
> worth of exceptions.
>
>
>
> *Everson* announced two principles: no aid in absolutist terms, and no
> person can be deprived of social welfare benefits because of his religion.
> The two principles turn out to be inconsistent, because any government
> money can be understood either as aid or as a social welfare benefit. The
> inconsistency accounts for the inconsistencies of the *Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and * Board of Education v. Allen* in 1968, and all the cases
> from *Witters* forward.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
> ------------------------------
>
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Saturday, April 22, 2017 9:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> A few points:
>
>
>
> 1) Trinity Lutheran has never been asked for or given its "word that the
> playground will be used for [exclusively] secular purposes." If it receives
> a grant, nothing in Missouri law will stop the church from using the
> playground for worship services or religious instruction.
>
>
>
> 2) In my original post, I did not claim that the Madisonian narrative
> behind the "no funding" rules of the Establishment Clause was correct or
> persuasive as an original matter. I did suggest that the Madisonian
> narrative was the basis for a view that held a majority of the Supreme
> Court from 1947 until at least 2002, and that no majority of the Court had
> ever repudiated. Yet that narrative has dramatically declined within
> public discourse -- legal, cultural, political, and journalistic.
>
>
>
> 3) Trinity Lutheran is not an Establishment Clause case. The "no funding"
> decision did not rest on the few and ambiguous words of the Establishment
> Clause. Rather, it rested on the clear and explicit words of Art. I, sec.
> 7 of the Missouri Constitution: "No money shall ever be taken from the
> public treasury, directly or indirectly, in aid of any church, sect, or
> denomination of religion." That is a no funding provision, and it cannot be
> squared with an equal funding principle. The question in the case is not
> whether equal funding is permissible under the federal constitution;
> rather, it is whether equal funding is required by the federal constitution.
>
>
>
> 4) I understand completely the normative objections to a no funding rule
> when the state is subsidizing public safety. And I understand the Church's
> arguments from the equal protection clause, and the free exercise clause,
> that support those normative objections. What I do not understand, and
> have not seen, are anything resembling an *originalist* argument that a
> rule forbidding the funding of churches violates either of those two
> provisions. How anyone could read the history of the 14th A, and prevalent
> attitudes at the time, to support a constitutional requirement of equal
> funding of churches is beyond me. I am not an originalist, but Justices
> Thomas and Gorsuch claim to be, and I will be very curious to read the
> originalist portions of the opinions that either of them writes or joins.
>
>
>
> On Sat, Apr 22, 2017 at 12:43 AM, Michael Peabody <
> mich...@californialaw.org> wrote:
>
>
>
>
>
> As to the "secular function" argument, is it truly a secular function?
> Churches would claim that secular functions are not religious functions but
> at the same time are also saying, "We are doing something that secular
> organizations also do, but we are going to limit access in ways that
> secular non-profits by law cannot." I don't know that such a position is
> tenable given the gestalt of the post-Obergefell age.
>
>
>
> Further, many religious elementary schools as a rule do not generally
> distinguish between secular and religious portions but try to provide a
> wholistic spiritual atmosphere in all aspects of their activities and
> properties. Having said this, I do believe the Court will avoid trying to
> figure out how secular or religious the use is, but rather take the
> organization's word that is is "secular."
>
>
>
> And doesn't the "secular" designation invite secular regulation?
>
>
>
> If the law required defibrillators and the state gave grants to secular
> institutions but denied them to religious schools that would be an entirely
> different matter. After all, a defibrillator has a clear purpose and can't
> be used for anything else. But here there is no such mandate for a rubber
> playground and a playground can be used for many things.
>
>
>
> On a personal note, I am a strong supporter of parochial education. I
> send both of my kids to religious schools at considerable expense. But I am
> concerned with the trending winnowing away of the religious character of
> these institutions if they begin to accept state funds and the state
> imposes hiring, curriculum, and other regulations that impinge on this
> character in order to protect the taxpayers' secular investment.
>
>
>
> Ultimately, I do anticipate that the Court, if it reaches the merits, will
> find in favor of Trinity Lutheran and accept the school's word that the
> playground will be used for secular purposes.
>
>
>
> Given the bakery and photographer cases, and threats to require facilities
> to be open to all comers, I think a follow-up round of litigation on usage
> will be unavoidable and given the results of the existing wedding services
> cases involving small businesses, it would seem that churches ought to be
> wary of what is lurking on the horizon if Trinity wins.
>
>
>
> Thank you for the very informative and thoughtful points and discussion.
>
>
>
> Michael Peabody, Esq.
>
> President,
>
> Founders First Freedom
>
>
>
> On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
> wrote:
>
> The funding question resolved in the founding generation was special
> allocation of public funds, not part of any broader program or category, to
> support the core religious functions of churches -- the salaries of clergy
> mostly, but also sometimes the construction of churches, or the income from
> glebe lands, which could be used for any purpose the church chose. That
> kind of expenditure was and is unconstitutional; there is no modern dispute
> about that.
>
>
>
> In that environment, the principle of no discrimination in favor of or
> against religion was entirely consistent with the principle of no funding
> for religion. There were no programs of funding broad categories of private
> activities.
>
>
>
> Today's issue is nondiscriminatory funding of secular functions carried
> out by religious organizations in religious contexts. Now the principles of
> no discrimination and no funding squarely conflict, and we have to choose
> between them. And the founding generation did not make that choice.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
>
> _______________________________________________
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