PEACEFUL COEXISTENCE

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22 Peaceful Coexistence Report else. She cited with approval the Supreme Court’s rejection of Bob Jones University’s nonprofit status under IRS rules because of its religious ban on interracial relationships. 77 She also opposed any exemption that allowed an employer’s religious views to be imposed on employees, an issue before the Supreme Court in Hobby Lobby, and disagreed with the provisions of RFRA that support such exemptions. 78 Two speakers, Daniel Mach of the American Civil Liberties Union (ACLU) Program on Freedom of Religion and Belief, and Alan Brownstein of the University of California Davis Law School, expressly supported the applicability of the Martinez Court’s limited-public-forum analysis. Daniel Mach viewed the Martinez holding as answering the question of whether such groups have the right to receive subsidies from the government if they select leaders for their views, not whether they have the right to do so under other circumstances. He agreed with the Martinez Court that they do not. 79 He viewed Hosanna-Tabor as legitimizing the use of the ministerial defense by a church to hire and fire for religious reasons based on its authority as a religious institution. He agreed with the Court’s decision but asserted the view that not every employee of a church can be considered a minister under this doctrine, only those who have doctrinal duties. He opposed any effort to expand the doctrine. Alan Brownstein argued that the Supreme Court increasingly construes both the Free Exercise Clause and the Establishment Clause narrowly and claims that might have previously been decided under the Religion Clauses are instead decided as free speech claims. He argued that treating these claims as free speech rather than free exercise may ultimately undercut religious liberty by reducing it to merely a species of speech entitled to no more or less protection than secular speech, rather than a distinctive liberty interest that receives heightened protection. 80 He considered the recognition of same-sex marriage as a moral necessity for States and advocated treating religious freedom as an accommodation that in certain circumstances allows 77 None of the briefing speakers however, regardless of views, suggested that racial bias by a religious organization could be protected under an exemption pursuant to the First Amendment or RFRA. 78 Briefing Tr. at 91-92 (statement of Leslie Griffin, Univ. of Nevada Las Vegas Law School), citing United States v. Lee, 455 U.S. 252, 261 (1982) (Upholding social security against religious objections: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”). 79 As to what constitutes a subsidy: The IRS takes the view that a tax exemption is a subsidy, see Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983) (“Both tax exemptions and tax-deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.”). By this definition, private universities also receive subsidies, as do most businesses and individuals who claim deductions, a question unexplored in Martinez. 80 Briefing Tr. at 103-105 (statement of Alan Brownstein, Univ. of California Davis Law School).
Discussion 23 discrimination on religious grounds. 81 Under his proposal, this would protect nonprofits more than commercial businesses. Public Comments The Commission received 110 written comments, an unusually large number for a Commission briefing. The comments originated from the United States, Canada, and Europe, and included individuals, religious groups, schools, professors and interest groups. Over one hundred comments generally supported religious exemptions and the right of religious institutions and groups to direct their own affairs regardless of otherwise applicable laws. A comment from Europe discussed and objected to five European laws that severely restrict religious exemptions from nondiscrimination laws, including Austria/EU, Spain/EU, Ireland, United Kingdom, and the European Union generally. Comments from religious groups that provide services to those in need (including child welfare networks) described the collision between government directives based on nondiscrimination requirements (usually relating to abortion, abortifacients, unmarried and/or same-sex couples seeking to adopt or foster) and the foundational principles of the charity. A comment from a public interest litigation group that has defended Free Exercise on over a hundred campuses stated that colleges use nondiscrimination regulations as a pretext for viewpoint discrimination against orthodox Christianity, since actual cases of exclusion of nonbelievers from campus religious leadership are rare. Other comments supported some or all of these views. A smaller number of submitted comments (seven) supported the primacy of nondiscrimination laws. An organization advocating on behalf of lesbian, gay, bisexual and transgender (LGBT) people objected to the expansion of religious liberty exemptions because of their pervasive and harmful effect, and recommended going back to the 1990 Employment Division v. Smith era prior to the enactment of RFRA. A comment from a litigation and advocacy group protecting LGBT rights stated that nondiscrimination laws do not impinge on religious liberty. A task force comment on LGBT rights agreed. An interest group promoting secular/atheist views also objected to allowing religious exemptions. A university comment defended its nondiscrimination requirement for recognized student groups as not interfering with the expression of religious faith because any group refusing to open its membership to any student regardless of views is still allowed to meet on campus, recruit, and organize. The university stated that the sole disadvantage to such group is that it does not have official university recognition. Public comments submitted for the briefing are available from the Commission by writing to foia@usccr.gov. 81 Id.
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Speakers’ Biographies 291 PANELIS
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