RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

[Newsom Michael]

Actually, it might follow that religions are entitled to benefits
without certain strings attached.  To suggest that religions are not is
to beg the question. 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 14, 2006 1:42 AM
To: Law  Religion issues for Law Academics
Subject: RE: State RFRA and nonreligious groups
thathaveconscientiousobjections to antidiscrimination laws

Religions may have special and unique features for legal
purposes.  But it doesn't follow that one of those features is an
entitlement to get a government benefit while at the same time escaping
the generally applicable conditions attached to that benefit.  Maybe
there is a good reason for such an entitlement; it just needs somewhat
more proof than simply a denial that discrimination in clergy employment
constitutes discrimination, or an assertion that religions, religious
organizations, and religious believers have special and unique features.

 -Original Message-
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Newsom Michael
 Sent: Thursday, March 09, 2006 4:32 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: State RFRA and nonreligious groups that 
 haveconscientiousobjections to antidiscrimination laws
 
 
 I am still unpersuaded.  I don't see the relevance of your 
 examples. You see no difference between the relation between 
 clergy and religious organizations and other employment 
 relations?  We are talking about religions here.  The 
 Religion Clauses have to mean at least that we recognize -- 
 for better or for worse -- the special and unique features of 
 religions, religious organizations, and religious believers.
 
 -Original Message-
 From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
 Sent: Thursday, March 09, 2006 7:07 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: State RFRA and nonreligious groups that have 
 conscientiousobjections to antidiscrimination laws
 
   The desire to prevent discrimination based on 
 irrelevant attributes is surely one theory behind employment 
 discrimination laws. But the legislature (and the courts 
 interpreting the legislature's work) may also -- and often 
 does -- prohibit discrimination when it is relevant.  Manhart 
 is an example; I suspect that any actuary will tell you that 
 gender is quite relevant to determining mortality risk, yet 
 the Court held that this is prohibited by Title VII.  A 
 person's disability may be relevant to a job, and yet the 
 employer may still be required to ignore it, or even to spend 
 money to accommodate it.  The list could go on.
 
   The question is whether the legislature may decide not 
 to subsidize entities that discriminate based on sex, even 
 when such discrimination is quite relevant to the entity's 
 operation.  We don't care whether your discrimination is 
 relevant or not to the job qualifications, the legislature 
 may say; we just don't want money raised from taxpayers of 
 both sexes to be spent on a program that discriminates 
 against one sex (to paraphrase President Kennedy as to Title 
 VI).  Why isn't the legislature entitled to take this view?
 
   Eugene
 
 
 Rick Duncan writes:
 
 The basic idea behind employment discrimination laws is that 
 the protected characteristic (e.g. gender) is not a relevant 
 qualification for employment. Thus, there is no lawyer 
 gender, or contruction worker gender, or policeman gender. 
 Gender is not related to one's ability to do a job.
 
 That works fine for secular employment. But in the matter of 
 the religious priesthood or clergy, the state is 
 constitutionally without competence to judge what qualifies 
 one to be a priest or clergyman. Under the EC, it is an 
 excessive entanglement for the state to say, in effect, that 
 women and men are equally qualified to be God's priests or 
 shepherds on earth. Under the Free Exercise Clause, a law, 
 even a so-called generally applicable one, announcing that 
 women and men are equally well-qualified for any job, 
 including the job of priest or clergyman, s! trikes at the 
 core of religious liberty and is unconstitutional (if we must 
 employ Smith's dogma, call this the core example of a hybrid 
 claim in which free ex, free speech and freedom of expressive 
 and intimate association are linked to form a strong hybrid 
 right of 3 strands).
 
 How does the state know what are God's requirements to serve 
 in the inherently religious position of clergyman? It 
 doesn't. When it extends unemployment discrimination laws 
 into the priesthood (either by regulation or punitive tax 
 policy), it acts ultra vires and unconstitutionally. And even 
 if such laws are not technically denominational preferences 
 under Larson (because they don't facially classify on the 
 basis of religion), their primary effect is to advance the 
 religions which receive favorable tax treatment (i.e. those 
 that permit women clergy

Re: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

[Ed Darrell]

By the way, I think it's not entirely accurate to say Boy Scouts discriminate on sexual orientation of members. Under BSA Youth Protection guidelines, it would be inappropriate for a leader to make such inquiry of youth members, especially 7-year-old Tiger Cubs. The issues have been litigated for leaders only.Ed Darrell  DallasPaul Diamond [EMAIL PROTECTED] wrote:  A problem is that the Govt. enters the 'moral arena' in an ideological (not societal sense)in which a particular viewpoint is promoted. (ie. homosexuality is good, or not good). Either position tempers opposition.Thus, whilst the State should promote the percieve good at the 'commanding heights' of society (marriage) - should the State be in the sex education business, for instance- or sho!
 uld
 parents be free to elect the boy scouts version of sex education? For the state to withhold funding to a Christian organisation on its view of sexual ethics would be to impermissable enter the moral realm.- Original Message - From: "Volokh, Eugene" <[EMAIL PROTECTED]>To: "Law  Religion issues for Law Academics" Sent: Wednesday, March 01, 2006 11:25 PMSubject: RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination lawsI'm trying to get at a couple of different questions. All arisein the context of subsidies that are generally available to a broadrange of people or organizations who satisfy certain relativelyobjective criteria (e.g., unemployment compensation, tax exemptions,student organization funds, access to classrooms after hours, and thelike):1. Are religious objectors entitled to an exemption fromsu!
 bsidy
 conditions, so that they get the subsidy even if they don't (forreligious reasons) comply with the condition?2a. Can groups such as the Boy Scouts claim similar religiousexemptions even if their members and officers come from manydenominations, yet share a few basic religious principles (e.g., somedegree of religiosity, and a belief in the impropriety ofhomosexuality)?2b. Can groups claim similar exemptions even if their beliefsare cast as deeply held conscientious belief, rather than religiousbelief?I'd love to hear what people say in response,Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Wednesday, March 01, 2006 3:19 PM To: Law  Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups that haveconscientiousobj!
 ections
 to antidiscrimination laws Sorry to be so late responding to your post, Eugene. But I wonder if you could clarify the focus of your issue. Are you asking whether religiously motivated conduct can ever be taken into account when a state decides whether or not it will subsidize an organization or an activity? (That is, the state can only take religiously motivated activity into account in awarding subsidies if doing so satisfies strict scrutiny review.) Or are you asking a narrower question that only applies to the more limited set of benefits that arise in free speech cases (access to government property, access to fundraising drives, access to schools, etc.) Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
 Eugene Sent: Monday, February 27, 2006 4:27 PM To: Law  Religion issues for Law Academics Subject: State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws Say that a state has a RFRA that's written much like the federal RFRA. And say that a state or local government body decides to exclude all groups that discriminate based on race, sex, etc. in selecting officers, speakers, or members from various benefit programs (access to government property, access to fundraising drives, access to schools, etc.). 1. The Catholic Church is excluded from the benefit because it discriminates based on sex in selecting priests. It raises a RFRA objection to the exclusion, arguing that it has a sincere religious belief that only men may be priests. What should the result be? 2. The Boy Scouts are e!
 xcluded
 from the benefit because it discriminates based on sexual orientation in selecting scoutmasters and members. It raises a RFRA objection to the exclusion, arguing that it has a deeply felt conscientious belief that it would be wrong for them to put homosexuals in role modeling positions, or that it would be wrong for them to put young boys in positions where there is especially likely to be erotic attraction between them (as there is if some of the members are known to be homosexual). This is a belief based on our religious traditions, the Scout leadership says; and in any event, even if that's not religious enough (since we belong to so many different religious traditions), it's based on deeply held conscientious beliefs, see Seeger and Welsh. What should the result be? Eugene ___ To post,!
  send
 message to 

RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

[Newsom Michael]

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. 

2) There are ecumenical organizations.  I suspect that some of them are
entitled to the same protections -- and duties -- of any religious
organization.  But the Boy Scouts cannot even qualify as an ecumenical
organization, much less one that is entitled to make religiously-based
autonomy claims.  Belief in God is not enough, it seems to me.  I
seriously doubt that many could claim, with a straight face, that they
practice their religion by and through the Boy Scouts.  

There is another scenario that might lead to a different
conclusion.  There are -- or were -- close structural links between the
Mormon Church and organizations like the Boy Scouts.  Indeed the Mormon
Church had to reconsider its beliefs regarding the eligibility of
African Americans to serve as clergy or one sort or another in the
Mormon Church.  The Mormon-affiliated Boy Scouts groups had imposed a
requirement that only those eligible for that church position could
serve as Scout leaders.  Where close and dense structural links exist
between the Boy Scouts and a particular religious institution, one might
plausibly say that the Boy Scouts are, for some purposes at least,
religious.  But the key is those links to religious institutions.  The
Boy Scouts, standing alone, as it were, are not religious institutions.

I am not sure that the Traditionalist Christian Scouts qualify
as a religious institution for purposes of a religion-based autonomy
claim.  First of all, as I suggested above, would anybody seriously
maintain that they practice their religion through such a group.  I do
not understand either evangelical Protestant or Catholic
traditionalists ever arguing that the Traditionalist Christian
Scouts are church enough for them.  Certainly Catholics could never
say that.  I think that we are back to the question of institutional
linkages.  Notice that in your argument, you try to separate out many
central and critical elements of doctrine in order to construct an
ecumenical traditionalist group.  I think that that process, in and of
itself, undermines any claim that the TCS is a religious
institution.  If that were true, then by the alchemy of slicing and
dicing any organization could be religious.  

3) Even secular humanists and the other non-theistic belief systems
noted in Torcaso have their discrete organizational structures.  So we
are back to the beginning: institutional linkages with organizations
that are admittedly religious in that they have comprehensive belief
systems.  That is the common thread, by the way, in the organizations
discussed in Torcaso. 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, February 28, 2006 7:17 PM
To: Law  Religion issues for Law Academics
Subject: RE: State RFRA and nonreligious groups
thathaveconscientiousobjections to antidiscrimination laws

1)  The question is whether the ministerial exception applies to
exclusions from benefits programs, or only to outright legal
commands/prohibitions.  All the ministerial exception cases I've seen
are in the later category.  The question is whether the government may
say to the Church (and to other groups that discriminate), Sure, you
have a statutory right [or, as to expressive association, a
constitutional right] to choose your leaders discriminatorily; but we
need not subsidize you if you do so.

2)  The Boy Scouts, I take it, could argue that they do have a
religious belief -- belief in God, coupled with a belief that God views
homosexuality as improper.  Would that qualify for RFRA purposes?  Or
would they also have to show that they share the same denomination?

What if it weren't the Boy

RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws

[Andrew Wyatt]

 And not only are they unfazed by the
 question What about a group that claimed that boys and girls should
not
 participate together in the group's activities for fear of 'erotic'
 attractions between boys and girls? -- they are indeed such a group;
 they are, after all, the *Boy* Scouts, and (let's assume) part of
their
 reasons for being the Boy Scouts rather than the Child Scouts is
 precisely to eliminate intragroup heterosexual erotic attractions.  

For what it's worth, as a former Scout and Scout leader, I can say that
this assumption is a close match for reality.  It is rarely overtly
stated as such, but American Scouting is segregated by gender to prevent
distractions that allegedly result in coed groups.

Andrew Wyatt


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