My point is that the ministerial exception should be broadly construed and applied. In the specific context of clergy, the state should not quickly or easily claim that a religious organization is ineligible for a subsidy if it is guilty of what the state claims is discrimination.
The question is not really about discrimination, it is about discrimination in the context of selecting clergy. Because of this, then there are some serious First Amendment issues that have to be considered. Hence a liberal and broad application of the exception seems to make sense. If the question were about child marriage, or renting apartments the result might be different. Surely there is something rather unique and special about the relation between a religious community and its clergy, something not found in your examples. -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 12:23 PM To: Law & Religion issues for Law Academics Subject: RE: State RFRA and nonreligiousgroupsthathaveconscientiousobjections 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. _______________________________________________ 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 be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ 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 be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
