The Proliferation of Religious Exemptions

An excellent article in the NYT today–apparently the first of a series–about the proliferation of special legal exemptions for religious organizations. First of all, there are some hilarious examples of the whining of allegedly persecuted majorities:

In March, hundreds of people and a number of influential lawmakers attended a conference called “The War on Christians and the Values Voter in 2006” in Washington and applauded the premise that religion was under attack.

Society “treats Christianity like a second-class superstition,” Tom DeLay, then a Republican representative from Texas, told the crowd. “Seen from that perspective, of course there is a war on religion.”

The argument that religious groups are victims of discrimination drew a sigh from Ms. White, the day care director in Alabama, where licensed day care centers are finding it harder to compete with unlicensed faith-based centers that do not have to comply with expensive licensing requirements.

Ah, yes, the endless persecution of the Christian white male. I defy you to show me one in a position of power anywhere in the United States! Anyway, the article goes on with a good analysis of the implications:

Critics of the 2000 law argue that the First Amendment itself has long prohibited religious discrimination in zoning, and that such zoning decisions could have been challenged just as successfully in the courts if the law had never been passed.

When Congress considered the law, “what was actually being discussed was ‘How do we make sure churches don’t get discriminated against,’ ” said Marci A. Hamilton, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan and the author of “God vs. The Gavel: Religion and the Rule of Law” (Cambridge University Press, 2005), which calls for closer scrutiny of some religious exemptions, especially those affecting land use and family law.

“Unfortunately, the answer was to give such an expansive remedy that not only are they not getting discriminated against, but they are now capable of discriminating against all other landowners,” added Professor Hamilton, who is advising Boulder County in its case.

I’ll probably discuss more specific cases as the series continues, but I’ll start with some general comments. First of all, there’s the question of whether these types of exemptions run afoul of the Establishment Clause. I might be persuaded the other way, but I’m inclined to say no. In most cases, I think that these exemptions are part of what Rehnquist called “play in the joints” in the religion clauses–that is, the kind of state action that is neither required by the free exercise clause nor prohibited by the Establishment Clause. Some of these regulations may be necessary to prevent discrimination against minority religions or involve defensible tradeoffs, and probably shouldn’t be categorically prohibited.

As to whether these exemptions are good policy, that’s a different question. For the most part, I agree with Hamilton that many of these are unwise and certainly tend to be special privileges rather than protections against discrimination. I’ll talk about specific cases later in the week, but I would outline some general principles:

• There should be a general presumption against the granting of special legal privileges to religious organizations.
• This presumption should be especially strong when it comes to spending state money, as opposed to regulation. I’ve discussed this before with respect to emergency contraception, but to the extent that the Establishment Clause is construed loosely enough to permit subsidies to religious institutions, the state should in most cases not permit organizations to engage in discriminatory behavior that would be illegal if performed by other secular organizations. If religious groups feel that this will violate their core functions, nobody’s forcing them to take the money. (I should emphasize the difference here between requiring compliance with general laws and the intentional use of spending power to coerce religious organizations; obviously, the latter would be undesirable and potentially unconstitutional.)
• In addition, the presumption against granting exemptions should get stronger as the relevant functions become more secular. There are many more cases in which exemptions applied to a church qua church are defensible than when a church is operating a hospital or independent charity.

Anyway, I’m looking forward to the follow-up articles.