I don’t think there’s anything necessarily inconsistent with the two positions you describe. Religion might be entitled to special treatment in some cases, but equal treatment in others. (Doesn’t everyone, at some level, believe that?) Certainly the Court does. The Court has, for example, said that ministers must be accorded special (not equal) treatment in some constitutional contexts (like their ability to bring employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) treatment in other constitutional cntexts (like their ability to sit in the constitutional convention—see McDaniel v. Paty). And the Court was unanimous both times!
For the classic reconciliation of the pro-exemption position and the equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and Substantial Neutrality, available here, http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059&context=law-review. Or just read this, http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html. I’d add my own thoughts, but I’m running out of time. Also, by the way, you could have just as easily framed your point the other way: Why do people insist that religious groups are not entitled to special exemptions because of some dominant equality principle, but then yet insist that religious groups cannot even be treated equally when it comes to funding? (And I should say that I think both of those framings—both yours and mine—are misleading and ultimately too harsh on the people who hold those views.) 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-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Thursday, April 20, 2017 8:06 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? This term the Supreme Court is hearing two cases involving whether or not churches should be treated the same as other non-profit organizations, and I want to make sure I have this straight. First, in Advocate Health Care Network v. Stapleton, heard March 27, religious hospitals are claiming that they should be treated differently from other non-profit organizations when it comes to whether they need to comply with ERISA regulations that require them to adequately fund employee pension plans. If I understand it correctly, their central argument is that they are so closely affiliated with churches that their plans are, effectively, "established and maintained ... by a church." In the hospital ERISA cases, religious institutions are demanding special treatment BECAUSE they are religious. Now, in Trinity Lutheran Church v. Pauley, heard April 19, a church is claiming that they should NOT be treated differently from other non-profit organizations when it comes to whether or not they can participate in a state program that provides funding for playground resurfacing material when doing so would violate the state constitution. In the Trinity Lutheran case and as indicated by amici, religious institutions are demanding that they be treated THE SAME as secular non-profit organizations. So do churches want to be treated in a discriminatory manner or not? It seems that if regulations could impose some kind of financial responsibility on them, church-state separation applies. Yet, if they can get some infrastructure upgrade benefit, churches want to fully participate with no such separation. But what will happen if the state, in return, imposes non-discrimination provisions on the churches for the use of the state-funded infrastructure? Would they still be treated the same as other non-profits and be required to open their facilities to all, or will they then be able to assert the protection of church-state separation? Michael Peabody, Esq. President, Founders First Freedom foundersfirstfreedom.org<http://foundersfirstfreedom.org>
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