That's a perfectly sensible position, and if it's limited to
denial of a benefit because of a what person does with his own money,
the answer is that the denial generally is unconstitutional. See, e.g.,
FCC v. LWV.
But if you also apply it to a condition that you may not use the
benefit itself for certain activities (albeit constitutional ones), then
where would that leave Rust v. Sullivan; the rule that tax-exempt funds
can't be used for lobbying or electioneering, upheld in Cammarano v.
U.S.; various benefits (including the underlying free education) open
only to public school students and not private school students; and so
on?
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Scarberry, Mark
> Sent: Friday, March 03, 2006 9:42 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: State RFRA and nonreligious
> groupsthathaveconscientiousobjections to antidiscrimination laws
>
>
> I'm sure others have expressed this idea more clearly (and
> authoritatively),
> but:
>
> Isn't it possible that when government expenditures are such
> a large part of the economy (and taxes take such a large part
> of personal income), a denial to a person of an otherwise
> available subsidy because of the person's exercise of a
> constitutional right should in many cases be considered to be
> a penalty? The real question is the baseline, isn't it?
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Friday, March 03, 2006 9:23 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: State RFRA and nonreligious
> groupsthathaveconscientiousobjections 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.
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