Steve
Could you resend your Orden Brief?
How is life in Oregon?
Marc
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Green
Sent: Thursday, December 23, 2004 3:38 PM
To: Law Religion issues for Law Academics
Subject: Re: charitable choice hypothetical
Putting aside any state nondiscrimination statutes or collective
bargaining issues which would control the situation, the permissive
accommodation and nonestablishment issues need to be addressed
separately.
If one follows Texas Monthly, Thorton and even Amos, it seems that the
permissive accommodation would fail because: (1) the need to hire
coreligionist bus drivers does not appear to be based on a free exercise
burden or come close to the concern in Amos about a chilling impact on
the autonomy decisionmaking of the religious entity; and (2) that such
preference burdens other persons (non-religious bus drivers in need of a
job).
However, I would acknowledge that the absence of a ground for
accommodating does not necessarily equate with an impermissible
advancement of religion. But I think Alan's characterization of the
issue (placing labor under the control of a religious entity) is too
broad. While charitable choice does such, it is with the facial
assertion that those employees are not engaging in religious activity or
engaged in religious functions but are providing surrogate public
services. While the same may be true for the bus driver (is there a
Christian way to drive?), in both situations the ability to discriminate
enables the religious organizations' overall mission by ensuring a
community of like believers at the government's expense. At least under
Title VII the government is not funding the private discrimination.
Steve
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732
A.E. Brownstein wrote:
In reading arguments defending charitable choice provisions that
permit
religious non-governmental providers to discriminate on the basis of
religion in hiring employees to staff government funded programs
serving
public purposes -- even if the program is entirely supported by
government funds and is subject to various government regulations and
conditions, I began to think about the reach of these arguments.
Proponents of discriminatory hiring argue:
1. This is an accommodation of the religious liberty interest of
religious individuals to work together with co-religionists.
2. The accommodation serves the legitimate secular purpose of
permitting
co-religionists to work together.
3. The accommodation does not impermissibly advance religion. The
reason
religion is not impermissibly advanced is, in part, because
a. The discrimination is not invidious and the persons denied job
opportunities are not stigmatized by their exclusion from these job
opportunities.
b. The religious liberty of persons denied employment because of
their religious beliefs is not burdened by being denied tax payer
funded, public purpose employment opportunities.
Obviously, I strongly disagree with most of these arguments. But my
question is this. Suppose a state provides free school bus service to
students attending both private and public schools. May the state
allow
religious private schools to select the bus driver transporting their
students to the school and insist that the driver must be of the same
faith as the school's teachers and administrators -- and may the state
grant such requests as an accommodation? (Or alternatively, when
public
school teachers are assigned to provide remedial services to students
at
a religious school, may religious schools be granted the accommodation
of choosing teachers of a particular faith to be assigned to those
duties.)
Wouldn't all of the above arguments apply to these situation? The
religious discrimination would be an accommodation of religious
individuals desire to work with co-religionists. (And., of course, the
state can take religion into account in accommodating religion.) The
accommodation would serve a secular purpose and not impermissibly
advance religion for all of the reasons argued above.
If there is an Establishment Clause problem with these hypothetical
accommodations, what is it? It can't be that public resources (here
labor instead of capital) are placed under the control of religious
institutions which practice religious discrimination in using those
resources -- because that is what charitable choice does.
Alan Brownstein
UC Davis
___
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
