Tracking and Ending Religious Discrimination

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Welcome to FEDSOC Forums, a podcast of the Federal Society's
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Practice groups. I'm Ny kas Merrick, Vice President and Director
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of Practice Groups at the Federal Society. For exclusive access
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to live recordings of fedsock Forum programs, become a Federal
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Society member today at fedsoc dot org.
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Hello everyone, and welcome to this Federal Society virtual event.
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My name is Marco J. Lloyd, and I'm Assistant Director
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of Practice Groups for the Federal Society. Today we're excited
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to host of webinar on tracking and Ending Religious Discrimination
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featuring Professor Nicole Stelle Garnett and Professor Professor Michael Helfans
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are moderated today is Professor Michael Morlands. Doctor Morlands is
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university professor of Law and Religion and director the Eleanor H.
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Mccollin Center for Law, of Religion and Public Policy at
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Villanova university Charles Wider School of Law, where he has
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talked since two thousand and six, including a period as
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vice seen. Before joining the Villanova faculty, he served as
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Associate Director for Domestic Policy at the White House under
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President George W.
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Bush.
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A renowned scholar, doctor Morland frequently provides commentary in the media,
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conferences and before Congress, and as writings appear in numerous publications.
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If you'd like to learn.
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More about today's speakers, their full bios can be viewed
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on our website betsoft dot org. If you have a
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question at any point in today's program, please enter into
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the Q and A function at the bottom of your
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zoom window.
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We will do our best to answer as many as
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we can.
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Finally, I'll not that, as always, the Federal Society takes
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no position on particular legal or public policy issues, and
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all expressions opinion are those of the speakers.
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With that, Michael, thank you for joining us today, and
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the floor is yours.
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Thank you, Marco, and thank you all for joining us
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for this important discussion about religious discrimination and remedies to it.
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I'll briefly introduce our to speakers and then open it
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up for a conversation. We will aim to leave some
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time at the end for questions, which again you can
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and put through the Q and A function at the
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bottom of the window, and we'll try to get to
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as many questions as we can. Professor Nicole Stelle Garnett
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is the John P. Murphy Foundation Professor of Law at
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Notre Dame Law School, where she also serves as the
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Associate Dean for External Engagement and directs the Notre Dame
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Education Law Project. Her teaching and research focus on education,
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law and policy, religious liberty, and topics related to property law,
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especially land use and urban development policies. Professor Michael Healthand
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is the Brendan Mann Foundation Chair in Law and Religion
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and co director of the Newdbart Institute for Law, Religion
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and Ethics at Pepperdine Caruso School of Law. During the spring.
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Right now, he serves as the Florence Rogats Visiting Professor
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at Yale Law School. In addition to these academic appointments,
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Professor Healthund serves as the Senior Legal Advisor to the
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Orthodox Union's Teach Coalition and is a Senior Fellow at
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the Shalom Hardman Institute. Welcome Professor Garnett and Professor Healthand
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thanks so much. So as mentioned, we're talking about religious
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discrimination and the approximate cause for our gathering. This webinar
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is a new project that Professors Garnett and health End
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are part of, which is a website religious equality dot
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net that you can look at. But Professor Garnett. Maybe
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you could start by talking about what the project is,
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what it's aiming to do, and then I'll turn to
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Professor healthand to provide maybe a little context for why
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this project is especially timely given some recent Supreme Court opinions.
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Yeah, so great. So the project it aims for now.
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Eventually we were soon we hope to expand his to
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federal programs. But right now it aims to do is
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it aims to identify as many state and state regulations
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and state statutes that unconstitutionally exclude religious organizations or religious
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conduct from public benefit programs. So there's a series of
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recent Supreme Court cases that culminated in a case called
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Carson versus Makain in twenty twenty two that basically sets
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a very clear ground rule that if the government sets
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up a program that engages with private organizations, the private organizations,
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the program can't discriminate against religious organizations by excluding them,
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nor can it say you must secularize your behavior in
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order to participate. So I had an insight around Carson
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time that there might be a lot of unconstitutional laws
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and regulations out there, and so I sort of undertook
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to try to find as money as possible. And at
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that point I had started talking to my co professor
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health about this and we thought it would be it's
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a pretty.
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Massive undertaking to find them all.
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We found close to six hundred to the state level,
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but we thought maybe this would be a great opportunity
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for Notre Dame's Religious Liberty Clinic, an educational project, to
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partner with Orthodox Union. We both have we both have
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interest in eliminating and constitutional religious discrimination, and that's sort
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of the origin for the project. And you know, eighteen
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months later, we have this website that quite proud of.
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It's pretty nifty if you're looking at it.
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Alvin, just for our audience, some maybe who have attended
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other webinars by our practice group, the Religious Liberties Practice Group,
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but some might be somewhat newer to these issues, maybe
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you could just say a little bit about kind of
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framing for us the recent Supreme Court lineup cases Trinity
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Lutheran Espinoza and Carson versus make and how without their
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other programs that have talked about those cases in great detail,
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but maybe in a summary way you kind of talk
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about why those cases sort of set the framework for
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work that this website is trying to engage in.
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Sure that sounds yeah, let me say a little bit
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about that, and Michael, thanks again for hosting. Really wonderful
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to be here and to hang out with my partner
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in crime, Nicole Garnett. So maybe one way to think
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about what's going on in this area is to take
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a setback before twenty seventeen, before triningy Lutheran Vcomra. I
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think this is obvious to many people will be part
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of this, have been on these webinars, but you know,
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the practical piece of it, which was really Nicole's insight,
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the practical piece of it may not have been as
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obvious to everyone. So for you know, post Lemon v. Kurtzman,
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nineteen seventy one, states are enacting legislation. Increasingly, they're enacting
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they're promulgating regulations around a wide variety of benefit benefit programs,
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including in particular many programs related to education. In more
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recent year security. They live in a world of constitutional law,
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but that's almost secondary. Primarily, they're just legislators are just
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doing stuff. They're writing things, they're enacting laws, and each
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time they enact a program, in their minds, you know,
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Lemon v. Kurtzman is the law, and that means that
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they're enacting a public benefit program, they need to make
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sure to do everything that they're supposed to do. They
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need to cross their t's and dot their eyes. And
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what that means for the nineteen seventies and eighties and
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nineties sort of is that you need to make sure
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that none of that money ends up in the hands
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of religious institutions, because Lemon v. Kurtzman says, you can't
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have religious purpose, or you have to have a secular purpose.
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You can't advance religion through a public benefit program. And
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so those are the ground rooms. If you pause about
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that for you know, and think about that for a
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few minutes, what that means is for thirty years, we
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just have tons and tons of legislation where you know,
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somebody in the legislature, whether the legislative Council is like, guys,
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before you do this, remember that stamp that we have
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that says but not for religion. That's the thing that
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makes sure it's constitutional. And so they all keep on
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doing this. And then in two thousand and seven, in
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the early two thousands, we learn Lemon Bee Kurtzman probably
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isn't the law of the land with respects the Establishment
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Clause already we probably see that in Zelman v. Simmons
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Harris in two thousand and two. You start rolling through
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Lockfee Davie. We're not one hundred percent sure. Maybe the
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state can exclude religion, but it doesn't have to. And
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by the time you get to twenty seventeen, the Supreme
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Court has started to say pretty clearly that once you
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have a program that is neutral, it it doesn't privilege religion,
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but you have a public benefit program that goes to
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private institutions. First, in twenty seventeen, the Supreme Court says
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you can't exclude religious institutions based on their status. And
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then in twenty twenty two, the Supreme Court makes clear
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in Carson v. Makeing that you also can't exclude in
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institutions just because they're going to use the funds for
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religious purposes. Here's the problem and the crux of the
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website and the federal laws that will hopefully be able
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to put on the website within the next six months
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or WAM knows what the crux of it is. Nobody
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told everybody to fix what was on the books. You've
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got decades and decades of stuff, and I don't know,
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it's a lot, and nobody's responsible to make sure that
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now that the law has changed, constitutional has changed, that
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we've updated our statute supporting and so. Kind of the
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big puzzle and the challenge that the website is intended
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to present is the problem is bigger than you think.
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It's pretty massive. There are lots of individuals and institutions
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and faith communities that are unable to, as a result,
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to make use of funds for very important purposes pre K,
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special needs families, healthcare, social services. And as a result,
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the unconstitutional laws are now on the books are having
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devastating consequences in all areas of legislation. And I guess
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we felt very passionately that what had to happen was
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in order to remedy this one thing that had to
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happen was there had to be some sort of place
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that people could go to see the scope of the
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problem so that they could figure out what actions they
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needed to take.
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Michael, can I just fallow one thing?
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I mean, I do agree, I asked called what Michael
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Helfan just called described as lemon think. I mean, the
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state's statutes and federal laws are probably worse, it's just
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infected with lemon think, and so we have to it's
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a religionous ikey, it's unconstitutional good money to religion. There's
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another kind of thinking that's going on in the States,
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and that's Blaine think. So these three recent cases Sernity,
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Lutheran and espenosm in particular, they make clear that the
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state Blaine Amendments or establishment anti establishment provisions cannot be.
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Used as an excuse for religious discrimination.
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But the state, so they're enacting all of these laws
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that Michael described, they're also saying, oh, the double double
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check is, remember we have a Blaine Amendment, and so
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we really can't just we really must discriminate against religion.
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And no one has the bat signal has not gotten
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down into the states that these things are not enforceable.
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And so I think that there's a really old bad
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law hangover that haunts a lot of these state statutes.
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And like Michael said, our goal is to bring them
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to light so that we can get some reform.
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So maybe prus Regardett, maybe you could speak a little
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bit about Michael Helfen started discussing it, but maybe some
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of the specific areas we're talking about so of course
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Traine and Lutheran was a case about playground resurfacing with
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scrap tires. Espinos and Carson involved tuition scholarship programs at
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private schools. But as you look at this website, religious
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equality done that, and I was clicking on Pennsylvania for example,
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where I am right now, and you can click on
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every state and kind of see different aspects of this issue.
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But what are some of the other areas education related?
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But others as well where these issues are most most prevalent.
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Right, So the majority of the ones that we find
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are education related. So big buckets in education are special needs,
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so particularly there's sometimes public schools can't provide an acceptable
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education for special needs children. They get a private placement,
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maybe because they think the states think the federal law
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makes them many many states say you may not send
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your child to a religious school, even though you're entitled
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to have your child under federal on state law educated
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by a private school.
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It can't be religious.
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There are many states to discriminate or at least require
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publicly funded pre K programs to be secular. So even
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states with voucher and ESA laws that allow parents to
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send their kids to private K twelve schools and discriminate
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against private religious priests schools. My favorite line is from Iowa.
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It says in the pre K program that's probably funded,
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there can be no sprinkling of religion throughout the day.
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There are limits on scholarships, some of which seem to
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reflect law versus tabe. You'll say you can get a scholarship,
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but not if you study theology, or only if your
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school has a secular purpose you can get There are
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some weird ones that restrict work study, so you can
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you can get work study, but not for doing religious stuff.
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You can get co curricular credit in high school, but
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not at a religious college. There's a lot of education
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related ones. There are also some community development and social
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services ones. You can you can get money to build
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a home for older four people, but not if it
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has a chapel, or not if it has a religious purpose.
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You can have a job training program, a prison re
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entry program, all these things that say either they say
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they just you cannot be religious, or you can't do
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anything religious, or you have to promise not.
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To do religious things in order to participate.
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And then there's just some really wacky ones. Michael probably
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could bring out some of his favorites, but I think
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my very favorite was there's one in Alabama that says
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you can give away money from greyhound racing days, but
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not to charities unless they're religious. There's weird restrictions on
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in Georgia. If you're a the state has a program
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where it encourages people like a un added Way that
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work for Georgia to give money to to charities, but
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they can't be religious. So there's sort of strange ones
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that don't.
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Really have any particular explanation. And I mean, what's your favorite, Michael.
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I think my favorite is Massachusetts, which pros if the army,
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if the army has some food that's going to spoil,
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they can give it to charities that will dispense it
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to people who are in need, unless those charities are religious,
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because we wouldn't want the food that goes to the
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people who are in need that's otherwise going to spoil
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to have a pit stop at a religious institution to
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disperse it. I think that's my personal favorite. I probably
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pick it because I find it particularly offensive.
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Good Well followly on that, Michael Health and we talk
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a little bit, and we can continue talking about some
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examples that the website points to about some of these
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issues that we're talking about. But of course the objective
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here is to find ways to remedy this kind of
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discrimination that is shot through different state and federal law,
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and the strategies or the avenues through which that can
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be undone. And it strikes me that there would be
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litigation challenges. You could have state legislation, you can have
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executive agency action. So maybe you could talk a little
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bit about ways in which people who are interested in
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engaging in this kind of work and can go about
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doing it, and maybe talk a little bit about your
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own Postcarson work in litigation and other settings.
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Happy to soy, I'll address the litigation side of the ledger.
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I really came to this issue not via I didn't
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quite have certainly didn't have Nicoll's insight about the pervasiveness
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of the problem and where we'd find it in all
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the states and all these kind of curious I don't know,
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black holes of constitutional law. It feels like, you know,
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I got approached actually a couple of years back by
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my own Orthodox Jewish I do work with the Orthodox
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Union and a group of people trying to figure out
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how to deal with their special needs children trying to
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get them the services they need out in Los Angeles.
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And one of the things that was super curious. Somebody
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came to me and said, you know, we've been looking
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at the laws here and what does the word secretary
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in me? I'm like, oh, let me see that. And
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it turns out in California, there's a rule in the
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special education context, so Individuals with Disabilities with Disabilities Education Act,
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federal government gives money to the states and then the
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states are obligated to provide a free, appropriate public education
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to every single child. As a result, if they can't
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do it, they're supposed to contract with the private and
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a private school that can provide a faith the kind
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of education that the child deserves and is legally entitled to.
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But to do that, to be that kind of partner,
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to have the state or the school district refer a
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child to the school, you have to become let's call
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it a state certified special needs school. And you could
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not become state certified special needs school if you were secretarian.
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And this is why you know, I know, just from
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my own faith community, many many special needs families that
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are Jewish in California, they just move they leave the
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state because they can't quite get the kind of education
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for the children that they want, and there was a
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desire given Carson b make into file suit against California,
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and one of the curious things about it and really
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just goes to like Nicole's incisive point about the Lemon thing.
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When we went before the district court, we lost, and
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we lost. This is a case Lafman b. California Department
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of Education. We lost because sometimes it just feels like
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you can't explain to the judge that you know, please
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forgive me a pression say that. So it's not nineteen
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seventy one. So just got a little bit of an update.
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So as a result, when we went for the ninth Circuit,
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a panel of the unanimous panel found it our favorite
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that the culminary injunction we were likely to succeed on
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the merits. And that's kind of the current state of play.
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But you see this, and I guess for me, the
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reason I tell the story the way I do was,
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I still remember the first meeting we had with all
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this Jewish special needs families. I mean, it's I probably
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will remember that meeting for the rest of my life.
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It's awful, just awful. And it's not just there. The
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Pepperdine Religious Liberty Clinic has also been pressing this issue
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in New Jersey historic preservation brands. This has been an
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issue for a long time. Morris County provides a county
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in New Jersey, another kind of i'd say, very important
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case if you're trying to track the litigation front of
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this issue. Morris County gives out money to old important
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buildings unless and originally they gave them out to churches
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until the New Jersey Supreme Court said, our state constitutional
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provision says that you can't give them to churches. So
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they took the money back. But then Carson v. Maken
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showed up on the scene, and so the Pepperdine Religious
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Liberty Clinic, along with First Liberty is filed suit again
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to say the law is different again, and what you
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need to do is you need to provide the money again. Neutrally,
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you have to assess each institution to see if they
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are indeed important and old, but then you should do
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so regardless of whether or not they're religious. So you
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see these kinds of cases, and just one of the
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interesting things is the decisions coming from judges, this isn't
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kind of it's for lack of a better way describing it.
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Across the ideological spectrum, judges are recognizing the law and
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I think deciding accordingly. By and large. The challenge is
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if you just have litigation, and I suspect I'm looking
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forward to Nicole's comments. On the legislative side. You know,
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we've identified, you know, let's say, around five hundred and
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six hundred regulations and statutes. Constitutional whack a mole is
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along road, and one would hope at a certain point
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that there was a better way to do business. And
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you know, in some ways to make this all this information,
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put it in the public domain. The goal of it
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is to maybe find a better way, and maybe I'll
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pass the baton on that point.
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It's also important I want to mention one other case,
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becose I think it's so outrageous, but there's you know,
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it's important to keep in mind that, I mean, even
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people who are hurt by these regulations, there's a lost
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to being a plaintiff. And even if you get pro
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bono great religious liberty pro bono council, you know you're
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causing trouble for your community. You know why are you
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doing this? So I just think that it's a risk
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for families and people. Real people or maybe some of
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these charities that have been taking the money and agreeing
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to secularize it would prefer to be fully religious. The
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last thing they want to do is sue the government
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and risk losing their grant altogether. The other case, this
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is an illustration of the problem. The case Michael didn't
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mention was a case out of New York where the
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Jewish family, especially needs child was placed in was placed
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in a religious school. That's what New York was doing,
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but they were taking thirty percent off the money of
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the school the child was entitled to because that was
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kind of their rough cut about how much.
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Was going to be spent on religion. So they were
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just not get thirty percent off.
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And this family filed like some kind of an administrative
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law complaint and they won, and the judge, the alj
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and New York's said, yeah, you know what, you're right,
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you get it all. And now the city or the
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state they're suing the family in federal court to get
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the money back for their autistic child in a Jewish school. So,
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I mean it's really I think hopefully that will come
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out the right way the second circuit.
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Yeah.
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So in additional litigation, I think the easiest thing to
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do is legislation.
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These are easy fixes.
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If you were just to go through state statutes and
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look for the words sectarian and non sectarian as you
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can easily conform the law fairly, pretty comprehensively. You could
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pass a statute that says we aren't going to violate
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Carson versus making a religious discrimination. You can do it
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a clean up statute. I think you know a lot
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of states that would be an appetite for doing exactly that.
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And Michael mentioned you could have executive action that could
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be an attorney general opinion or just a week ago
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the governor of Oklahoma issued an executive or governors did
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basically taking this idea and running with it and saying, okay,
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so Carson versus making, we're not gonna do this anymore. Also,
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every agency head go through all of your programs, all
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of your policies, all of your regulations, and all of
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your contracts and report back to me what you find,
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and then we're going to stop it. And then, by
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the way, these five or six things that all look good,
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so we're going to stop them now. So it's a
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really nice model for just saying, you know, we're not
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going to do this. I think, to Michael's point about
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not knowing, Professor Healthen's point, a lot of these states
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don't have any interest in the religious discrimination.
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They just don't know they're doing it.
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I doubt that states with voucher programs that allow RELIGIOU
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schools to participate really care if pre K programs that
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the pre K program is, you know, requiring religious free
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schools to be secular schools. So I just think that
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one of the goals here is law reform and at
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the state level, and then we also hope at the
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federal level.
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Well, speaking of the federal level, an agency action. So,
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Professor Garnett, you in November with your Notre Dame colleague
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John Miser had an hoppit in the Wall Street Journal
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talking about actions that the incoming Trump administration could take
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on this front. And just on April ninth, yesterday, there
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was a presidential memorandum that requires agencies to rescind regulations
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that are unlawful under recent landmark Supreme Court decisions. And
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there are ten such cases that the White House identifies
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one of which is Carson v. Macon. I'll just quote
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from the memorandum here. Carson v. Macon held that a
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law excluding religious schools from participating in Maine school voucher
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program violate the free exercise clause. Agencies accordingly must review
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their regulations to ensure equal treatment of religious institutions visa
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vse second institutions for purposes of funding and access to
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public benefits. And then the next case identified in the
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memorandum is Catholic Diocese of Brooklyn versus Cuomo. Switch. Again,
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quoting from the memorandum, struckt Dow on New York's COVID
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era occupancy restrictions on churches and synagogues because they were
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uniquely harsher than those that applied to essential businesses such
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as acupuncture facilities. Each agency, each agency should review its
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regulations to ensure at least equal treatment of religious institutions
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visa vissecular institutions for regulatory purposes. So that's a presidential memorandum.
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So maybe Presid Garnett, you could say a little bit,
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building on your op at piece and Wall Street Journal
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and this memorandum about the federal level, because we most
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been talking about state programs in this website identifies a
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lot of state issues. What about at the federal level,
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what are some of these issues that this memorandum is targeting.
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Right to the opit that I wrote with my college
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job user who's also a partner on this product. He
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runs our religious liberty clinic Carret Notre Dame. It was
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called Trump can End Religious Discrimination, and it basically suggested
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that the president could do what Governor did last week
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and issued an executive order sort of asking his all
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the agencies to look for this stuff and report back
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to him, and then there would be some kind of
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a you know, an executive order that would say stop
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doing it. What he did was a lot bigger than that.
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He just said there's not just one case, which I
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was just worried about one case. There can and he says,
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don't report back, identify them, and then issue non enforcement
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orders if you find any policies or practices or regulations
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that violate these. The run of all these ten cases,
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which include not just religion but the major questions doctor
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in recent takings cases, it's a pretty sweeping regulatory cleanup effort.
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So as far as the Carson regulation and the post
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Carson world of federal regulations I have had, I do
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have a lot of work. We've been doing research on that.
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I have a kind of unwieldy spreadsheet that we're trying
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to figure out what to do with.
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I will say the problem is at least.
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As pervasive in the federal law as it is in
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state law, and some of the state law problems probably
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stem from either implied, assumed or direct orders from the
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federal government. I would just use the example of all
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federal equitable services to children in private schools. So the
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00:27:34.799 --> 00:27:39.279
Federal Education Funding Statutes IDA plus the Title Statutes set
484
00:27:39.279 --> 00:27:42.000
a one, Title two, Title three that provide equitable services,
485
00:27:42.359 --> 00:27:43.680
mostly for disadvantaged kids.
486
00:27:43.880 --> 00:27:46.279
The way they work is they give the school.
487
00:27:45.960 --> 00:27:49.119
Districts money and they have an obligation to share that
488
00:27:49.200 --> 00:27:54.279
money equitably with private school children and those so that
489
00:27:54.319 --> 00:27:57.400
goes to tutoring, teacher professional development.
490
00:27:57.000 --> 00:27:58.960
English language learn and special education.
491
00:28:00.079 --> 00:28:04.920
Even if those services are provided by private religious schools.
492
00:28:05.359 --> 00:28:09.720
The services must be secular. Actually, technically the term of
493
00:28:09.839 --> 00:28:13.759
art is secular, neutral and not ideological. Words originated in
494
00:28:13.839 --> 00:28:16.599
leven and then get repeated the next year in niquest,
495
00:28:16.640 --> 00:28:19.720
so they are kind of outdated and so what happens
496
00:28:19.759 --> 00:28:22.400
a lot of times in the state laws is they
497
00:28:22.480 --> 00:28:26.799
just throw those words on top of their own education statutes.
498
00:28:27.079 --> 00:28:29.200
So I think that it would make a huge difference in.
499
00:28:29.160 --> 00:28:32.279
The lives of millions of people if we could get
500
00:28:32.319 --> 00:28:34.599
rid of that requirement, because, first of all, if the
501
00:28:34.680 --> 00:28:38.079
schools provide the services themselves, they have to go to
502
00:28:38.119 --> 00:28:40.119
the trouble of proving they're not spending it on religion.
503
00:28:40.400 --> 00:28:42.200
If they don't, they either do one of two things.
504
00:28:42.240 --> 00:28:45.000
Either the school districts provide the services, which is what
505
00:28:45.039 --> 00:28:47.240
they like to do so they can keep the money,
506
00:28:47.400 --> 00:28:50.640
or they're consultants that provide the services to their religious
507
00:28:50.640 --> 00:28:54.480
schools in a secular way, and that's expensive when the
508
00:28:54.480 --> 00:28:57.119
schools could just be doing it themselves, leaving aside all
509
00:28:57.200 --> 00:29:00.039
the rig and role and till we're talking billions of
510
00:29:00.079 --> 00:29:02.480
dollars of federal education funds.
511
00:29:02.519 --> 00:29:03.599
That's just one part of it.
512
00:29:04.720 --> 00:29:07.759
Another I noticed one of the questions is about the
513
00:29:08.319 --> 00:29:09.799
Charitable Choice during George W.
514
00:29:09.880 --> 00:29:13.640
Bush. So George V. Bush's Charitable Choice programs.
515
00:29:14.960 --> 00:29:18.240
Really did try to encourage their religious providers to participate
516
00:29:18.279 --> 00:29:23.720
fully in publicly funded social service programs. But because Michael
517
00:29:23.759 --> 00:29:26.960
Helpin points out they thought they couldn't pay for religion.
518
00:29:27.799 --> 00:29:30.720
All of those programs say you could be religious, but
519
00:29:31.119 --> 00:29:33.200
all of your religion must be off the books.
520
00:29:33.279 --> 00:29:34.799
So if you want to you can't.
521
00:29:34.960 --> 00:29:39.319
If you want to pray before you know your meal
522
00:29:39.640 --> 00:29:42.680
at the soup kitchen, you can't. That moment of time
523
00:29:42.720 --> 00:29:45.480
can't be federally funded, or you have to have your
524
00:29:45.519 --> 00:29:49.200
worship service later. So they're all of those restrictions the
525
00:29:49.240 --> 00:29:53.000
charitable choice provisions, and that's a really interesting one to me.
526
00:29:53.119 --> 00:29:54.960
I was talking to John Measier about this. It seems
527
00:29:55.000 --> 00:29:58.480
that in that motivation there was actually pro religion. It
528
00:29:58.519 --> 00:30:01.559
was to try to map maximize the opportunities for religious
529
00:30:01.680 --> 00:30:03.960
organizations to participate, but there.
530
00:30:03.920 --> 00:30:06.519
Was a belief that you couldn't fund religion.
531
00:30:06.519 --> 00:30:08.920
And now after Carcon, it's pretty clear that you can't
532
00:30:08.960 --> 00:30:12.319
require them to secularize in that way. A lot of
533
00:30:12.400 --> 00:30:17.039
restrictions on services provided through US AID. Those maybe move
534
00:30:17.119 --> 00:30:20.079
now because maybe we're not doing that stuff anymore. But
535
00:30:20.160 --> 00:30:23.000
throughout you would be surprised. I mean, every I haven't
536
00:30:23.160 --> 00:30:27.839
spreadsheet all. Every agency has some program that they're administering
537
00:30:28.359 --> 00:30:34.519
that they have some restrictions on federal funds going to
538
00:30:34.599 --> 00:30:37.039
religious organizations or religious entities.
539
00:30:37.079 --> 00:30:37.599
And again, I.
540
00:30:37.519 --> 00:30:41.039
Think a lot of this is just lemon think that
541
00:30:41.200 --> 00:30:45.200
is baked into federal law. The first Trump administration did
542
00:30:45.200 --> 00:30:48.160
a little bit of cleanup. They issued a few OLC
543
00:30:48.319 --> 00:30:52.400
opinions when it was about HBCUs, one was about charter schools,
544
00:30:52.720 --> 00:30:57.319
and one was about hilariously Christmas decorations.
545
00:30:57.400 --> 00:31:00.759
But you know that was the few. And then I mean,
546
00:31:00.839 --> 00:31:03.079
maybe Michael wants to talk about the Como case.
547
00:31:03.119 --> 00:31:05.839
I mean the I think that's a tougher one. So
548
00:31:05.920 --> 00:31:08.839
that case. The second case you mentioned was a COVID
549
00:31:08.839 --> 00:31:11.920
era case where they were saying, if you're at church
550
00:31:12.000 --> 00:31:14.400
or a synagogue, you can only be at a core capacity,
551
00:31:14.440 --> 00:31:16.079
but if you're a bowling alley, you could be a
552
00:31:16.119 --> 00:31:19.480
half capacity. And the court basically establishes a rule that
553
00:31:19.519 --> 00:31:22.400
religious organizations have to be treated at least as well
554
00:31:23.000 --> 00:31:26.519
as non religious organizations in religion, regardless of whether they're
555
00:31:26.519 --> 00:31:30.680
getting money. That's applies to everything, and I do think
556
00:31:30.680 --> 00:31:33.640
that's that's sometimes called the most Favored Nation rule or
557
00:31:33.759 --> 00:31:36.799
status for religious organizations. I'm sure there are a lot
558
00:31:36.799 --> 00:31:38.640
of federal a lot of violations of that. I think
559
00:31:38.680 --> 00:31:41.400
they're a lot harder to find than religious discrimination. So
560
00:31:41.440 --> 00:31:45.799
I don't have any particular our project doesn't extend to that.
561
00:31:45.839 --> 00:31:48.720
I don't have any particular strategies or sense of.
562
00:31:48.680 --> 00:31:49.519
The scope of the problem.
563
00:31:49.559 --> 00:31:53.039
I don't know if you do, Michael, I happy to
564
00:31:53.039 --> 00:31:55.400
say something on the last coin, then maybe circle back.
565
00:31:56.160 --> 00:31:59.839
I have this sneaking suspicion that if they are actually
566
00:31:59.839 --> 00:32:03.440
to clean up all the Carson v Making problems, you'd
567
00:32:03.440 --> 00:32:07.319
eliminate pretty much everything that you could find under the
568
00:32:07.400 --> 00:32:10.319
promo bucket. And I say that because you know, if
569
00:32:10.319 --> 00:32:14.000
you're looking through regulations and statutes or this case regulations,
570
00:32:15.079 --> 00:32:19.279
what you're dealing with is issues that are on their face,
571
00:32:19.960 --> 00:32:24.279
exclusions that are on their face. And if that's what
572
00:32:24.279 --> 00:32:27.799
we're dealing with, so then that'll really be picked up
573
00:32:27.880 --> 00:32:32.400
by the Carson v makeing kind of bucket and identifying
574
00:32:32.799 --> 00:32:36.000
exclusions of religion the kind of other issues that sometimes
575
00:32:36.000 --> 00:32:39.599
the Quomo Most favor Nation status might actually pick up.
576
00:32:40.039 --> 00:32:43.240
That would be I suspect what would be beyond it
577
00:32:43.279 --> 00:32:45.559
would be kind of as applied, something going on that
578
00:32:45.559 --> 00:32:48.599
you wouldn't see just by looking at the regulation or statue.
579
00:32:48.880 --> 00:32:52.920
So my suspicion is that the two buckets may actually
580
00:32:53.000 --> 00:32:55.799
collapse quite a bit if they're just looking through regulations
581
00:32:55.839 --> 00:32:59.119
and eventually looking through statutes. But I guess time will tell.
582
00:33:00.559 --> 00:33:02.559
We thought about trying to do this early on and
583
00:33:02.599 --> 00:33:05.799
we couldn't figure out how. But I suspect that there
584
00:33:05.839 --> 00:33:09.799
are a huge amount of problems in RFPs and government
585
00:33:10.000 --> 00:33:13.440
contracts that are you know, I don't know how to do.
586
00:33:13.599 --> 00:33:14.799
There's no public database.
587
00:33:14.839 --> 00:33:18.599
Maybe there is, but I suspect that if like Goiras
588
00:33:18.640 --> 00:33:21.759
started reviewing those things, they would catch it. But I suspect,
589
00:33:21.799 --> 00:33:23.319
you know, like there are a lot of contracts that
590
00:33:23.359 --> 00:33:25.839
have been around for a long time and they probably
591
00:33:25.880 --> 00:33:31.200
have both problems sort of baked into them because there
592
00:33:31.960 --> 00:33:36.119
they're actually treating religious organizations worse than like private organizations
593
00:33:36.160 --> 00:33:38.680
because they think they have to, Like the knocking the
594
00:33:38.720 --> 00:33:41.519
thirty percent off for religion and the Jewish day School
595
00:33:41.599 --> 00:33:46.000
for the disabled kid, that's treating religious organizations differently than
596
00:33:46.000 --> 00:33:46.960
a secular organization.
597
00:33:47.039 --> 00:33:50.759
But it's a Carson. It's a Carson problem.
598
00:33:50.559 --> 00:33:52.920
Also, and you wouldn't see it, by the way, from
599
00:33:53.000 --> 00:33:57.400
on the face of any particular like when you try
600
00:33:57.400 --> 00:34:00.799
to find the rule that authorizes that to Dutch, you can't.
601
00:34:01.319 --> 00:34:06.559
It's very challenging to find. It's usually just deduced from either,
602
00:34:07.359 --> 00:34:10.440
you know, some sort of no aid provision, no aid
603
00:34:10.480 --> 00:34:13.559
to religion provision, or something something along those lines. I
604
00:34:13.559 --> 00:34:16.079
did actually want to follow up on that, and the
605
00:34:16.159 --> 00:34:17.840
name of that case that I call correctly is Board
606
00:34:17.840 --> 00:34:21.400
of Regents v. E. L. And you know, one of
607
00:34:21.480 --> 00:34:24.840
the things that people often when they first encounter this,
608
00:34:25.559 --> 00:34:29.159
their gut reaction is, but wait a minute, like religion
609
00:34:29.360 --> 00:34:32.719
isn't advancing the goals of the program, Like the goal
610
00:34:32.760 --> 00:34:35.000
of the program is X, and if we find the
611
00:34:35.039 --> 00:34:38.039
religious institution, it's that that's not what the goal of
612
00:34:38.039 --> 00:34:40.119
the program is. And I actually think Board of Regions ve.
613
00:34:40.199 --> 00:34:40.440
E L.
614
00:34:40.559 --> 00:34:43.559
Is a really excellent example of maybe, you know, how
615
00:34:43.599 --> 00:34:45.920
we should be thinking about these issues. You know, in
616
00:34:45.960 --> 00:34:48.599
that case, the initial administrative law judge and in the
617
00:34:48.599 --> 00:34:51.559
second the first one who just did the facts finding
618
00:34:52.880 --> 00:34:56.719
that alj said, you know, all of the education, including
619
00:34:56.719 --> 00:35:00.480
the religious education, is advancing the pedagogical goal of the
620
00:35:00.719 --> 00:35:05.559
idea the Individuals with Disabilities Education Act. It's just that
621
00:35:05.599 --> 00:35:07.880
some of it was done while reading the Bible, and
622
00:35:07.920 --> 00:35:12.239
some of it was done while something else, but all
623
00:35:12.320 --> 00:35:15.440
of the education was advancing the goals of the program.
624
00:35:15.920 --> 00:35:19.679
And after that factual finding, then the ALJ says, but
625
00:35:19.920 --> 00:35:22.239
even though some of this is advancing the goals of
626
00:35:22.280 --> 00:35:26.119
the program, because it's religious, we're going to reduce the
627
00:35:26.119 --> 00:35:29.719
amounts of tuition that goes to the religious school. Now,
628
00:35:30.320 --> 00:35:32.960
I think the Carson d make and instinct is it
629
00:35:33.199 --> 00:35:36.119
asks the government to think carefully about not what is
630
00:35:36.159 --> 00:35:38.880
and is not religious, but what kinds of activities are
631
00:35:38.880 --> 00:35:41.639
advancing the goals of the program. It may indeed be
632
00:35:41.719 --> 00:35:44.840
the case that some certain kinds of religious instruction don't
633
00:35:44.880 --> 00:35:47.000
advance the goals of the program. But the best way
634
00:35:47.039 --> 00:35:49.920
to describe that wouldn't be by drawing a line between
635
00:35:50.239 --> 00:35:53.239
religion and non religion. The way to describe that problem
636
00:35:53.280 --> 00:35:56.079
would be to carefully articulate the goal of the program
637
00:35:56.400 --> 00:35:59.280
and then try to determine whether or not the activities
638
00:35:59.320 --> 00:36:03.840
being funded at actually advance it. That's the non discriminatory
639
00:36:03.880 --> 00:36:06.480
way to do the same thing. And again Board of
640
00:36:06.519 --> 00:36:10.199
Regents VEL is an excellent example because they are The
641
00:36:10.800 --> 00:36:14.480
ALJ says, well, we can't fund this even though there's
642
00:36:14.519 --> 00:36:16.880
a finding on the record that it's advancing the goals
643
00:36:16.920 --> 00:36:18.639
of the program. And I think that in many ways
644
00:36:19.000 --> 00:36:21.320
is What the website is getting at is trying to say,
645
00:36:22.280 --> 00:36:25.159
change the way you think about the legislation and regulations
646
00:36:25.159 --> 00:36:27.559
you're putting on the books. We're not saying don't regulate.
647
00:36:28.039 --> 00:36:30.519
What we're saying is regulate based on the goals of
648
00:36:30.559 --> 00:36:33.280
the program, not kind of using what I would almost
649
00:36:33.320 --> 00:36:37.119
describe as legislative lazy tactics of saying, we're not going
650
00:36:37.159 --> 00:36:39.679
to think deeply about what the goal of the program is.
651
00:36:39.719 --> 00:36:42.519
Religion's out because it's something different and we don't remember why,
652
00:36:42.559 --> 00:36:43.239
and let's move on.
653
00:36:44.920 --> 00:36:47.079
I want to think before the next question. I do
654
00:36:47.119 --> 00:36:50.079
also really want to emphasize because of maybe some we
655
00:36:50.079 --> 00:36:52.920
have pillstoppers here. I mean, the president is remarks about
656
00:36:52.920 --> 00:36:55.199
that executive order did say I didn't watch them, but
657
00:36:55.239 --> 00:36:58.519
somebody told me this. You know, Congress needs to take
658
00:36:58.559 --> 00:37:00.639
care of these problems too. I mean, I do think
659
00:37:00.679 --> 00:37:03.320
it's a lot of these things are in federal statutes, secular,
660
00:37:03.360 --> 00:37:05.599
neuture nine, gedeological. I mean, some of these things are
661
00:37:05.760 --> 00:37:08.599
baked into federal centers. They're not just regulatory. Again just
662
00:37:08.639 --> 00:37:11.360
easily can have non enforcement, but if you really want
663
00:37:11.360 --> 00:37:14.039
to end it permanently, both in the states and at
664
00:37:14.039 --> 00:37:17.719
the federal level. Ending it legislatively is the best way
665
00:37:17.760 --> 00:37:21.880
to ensure long term so the next person in charge
666
00:37:21.920 --> 00:37:24.199
doesn't just say we're going to enforce that again and
667
00:37:24.239 --> 00:37:25.679
then we have to go back to court.
668
00:37:28.000 --> 00:37:30.760
Just the way of expanding out a little bit of
669
00:37:30.760 --> 00:37:33.559
the discussion, we've focused a lot on education. I did
670
00:37:33.679 --> 00:37:37.519
notice the Oklahoma Governor's executive order also mentioned arts funding
671
00:37:37.719 --> 00:37:42.760
and historical preservation in examples from those areas that either
672
00:37:42.800 --> 00:37:44.840
of you can speak to.
673
00:37:47.199 --> 00:37:50.360
So the New Jersey Historical Preservation one is a good
674
00:37:50.400 --> 00:37:53.400
example there. We did find in our if you look,
675
00:37:53.440 --> 00:37:56.960
if you're looking at the website under other that's the
676
00:37:57.000 --> 00:37:59.960
sort of catchall. So there are there are some strain
677
00:38:00.239 --> 00:38:03.119
ones on arts educating arts funding.
678
00:38:03.519 --> 00:38:06.199
So you could have museums that you know.
679
00:38:06.199 --> 00:38:10.679
That had cultural you funded cultural things, and there aren't.
680
00:38:10.840 --> 00:38:14.119
You can't fund the museum if it's got a religious
681
00:38:14.719 --> 00:38:16.480
purpose or a religious I don't know.
682
00:38:16.840 --> 00:38:17.599
I don't know exactly.
683
00:38:17.599 --> 00:38:19.760
It wasn't as clear with some of those meant like
684
00:38:19.760 --> 00:38:22.719
because I mean, you can't put religious art in the museum,
685
00:38:22.760 --> 00:38:26.559
and that can't be true. So the arts, the arts
686
00:38:26.559 --> 00:38:29.039
funding historic preservation. There were a number of states that
687
00:38:29.079 --> 00:38:32.159
had historic preservation restrictions would basically say like, you know,
688
00:38:32.440 --> 00:38:35.159
if it's an old important building, you can get money
689
00:38:35.199 --> 00:38:37.960
to preserve it, but not if it's a synagogue or
690
00:38:37.960 --> 00:38:38.400
a church.
691
00:38:39.960 --> 00:38:40.719
Some of the others.
692
00:38:40.840 --> 00:38:44.960
I mean so and Kahoma was not, if I remember correctly,
693
00:38:45.960 --> 00:38:47.440
the worst of fender.
694
00:38:48.800 --> 00:38:50.639
By by any stretch of the imagination.
695
00:38:51.840 --> 00:38:54.280
But I do think here again there was there must
696
00:38:54.280 --> 00:38:57.199
have been some kind of thinking like how if we
697
00:38:57.320 --> 00:38:58.480
help the church.
698
00:38:58.880 --> 00:39:00.400
You know, get new hues.
699
00:39:01.639 --> 00:39:05.559
You know, that's definitely not a secular purpose, so that
700
00:39:05.679 --> 00:39:10.480
violates violates limit. There's another thing that's going on in
701
00:39:10.480 --> 00:39:14.039
some of these is really not about I think a
702
00:39:14.079 --> 00:39:16.639
lot of work. There's clearly some of them that have
703
00:39:17.079 --> 00:39:19.480
a sense it's sort of a most like the case
704
00:39:19.480 --> 00:39:22.440
from the tiltin case. Is that what it's called, Like
705
00:39:22.719 --> 00:39:26.079
can you can give religious organizations maybe give them a
706
00:39:26.079 --> 00:39:29.199
building or help them build a building, but like a lab,
707
00:39:30.000 --> 00:39:33.559
but if it has a chapel, you know, if it's
708
00:39:33.559 --> 00:39:37.320
a science building with a chapel, No, you can't do that.
709
00:39:37.320 --> 00:39:38.519
It's super bad.
710
00:39:38.960 --> 00:39:42.599
So there's a lot of you know, community development economic
711
00:39:42.639 --> 00:39:45.880
development grants where it seems to be saying we'll let
712
00:39:45.920 --> 00:39:48.360
you have some money to do good things and build
713
00:39:48.400 --> 00:39:51.719
buildings and maybe higher end like you know, build a dorm,
714
00:39:51.719 --> 00:39:53.800
but no chapel in the dorm, because that would be
715
00:39:53.840 --> 00:39:57.480
a constitutional And I think that is also goes back
716
00:39:57.519 --> 00:40:01.920
to this old thinking that you could maybe support religious
717
00:40:02.000 --> 00:40:07.400
organizations that weren't pervasively secretary in that old term, and
718
00:40:07.639 --> 00:40:08.199
you could.
719
00:40:08.000 --> 00:40:11.000
Trust them with the money to not do religious stuff.
720
00:40:11.559 --> 00:40:14.559
But once they crossed that line, you know, there's like
721
00:40:15.000 --> 00:40:18.639
any religious instruction that the building has any religious purpose,
722
00:40:18.719 --> 00:40:22.880
you can't have the building. And again I don't think
723
00:40:22.880 --> 00:40:25.320
that's the constitutional rolling right. The opposite is true. But
724
00:40:25.360 --> 00:40:28.639
there's a lot of that, a lot of those. One
725
00:40:28.719 --> 00:40:30.679
last one I will say that I found really odd
726
00:40:30.800 --> 00:40:34.920
is that some of the healthcare laws say that even
727
00:40:35.960 --> 00:40:40.039
hospitals that are religious have to have non secretarian boards.
728
00:40:42.400 --> 00:40:43.719
I don't know what that means.
729
00:40:43.519 --> 00:40:45.599
But I mean it's a sort of like, how can
730
00:40:45.639 --> 00:40:47.519
you tell our this hospital it has to like have
731
00:40:47.679 --> 00:40:48.119
the hospital?
732
00:40:48.199 --> 00:40:49.440
I said, like, what does that mean?
733
00:40:49.519 --> 00:40:51.800
Like you have two Jews and you know a Methodist
734
00:40:52.280 --> 00:40:55.840
or one atheist And I don't know. So I just
735
00:40:55.840 --> 00:40:59.760
think there clearly they thought they were they weren't making
736
00:40:59.760 --> 00:40:59.960
it up.
737
00:41:00.159 --> 00:41:01.840
They thought they had to do it, then they just
738
00:41:01.880 --> 00:41:03.840
put this weird stuff in the law that needs to
739
00:41:03.880 --> 00:41:04.800
be out of the law.
740
00:41:06.519 --> 00:41:10.119
Maybe I'll just throw two quick things in if you're looking, Michael,
741
00:41:10.320 --> 00:41:12.920
And for some examples, I just pulled up like a
742
00:41:12.920 --> 00:41:17.079
little sheet I have. Arkansas gives grants up to twenty
743
00:41:17.119 --> 00:41:19.679
five hundred dollars for museums, but not at the museum
744
00:41:20.159 --> 00:41:23.199
either as religious or promote religious principles. New Jersey has
745
00:41:23.239 --> 00:41:29.280
ten thousand dollars grands for privately operated nonprofit art centers,
746
00:41:29.360 --> 00:41:32.800
but not if those art centers are in some way religious.
747
00:41:32.800 --> 00:41:36.159
And that's consistent. New Jersey has pretty strong no aid
748
00:41:36.159 --> 00:41:39.000
to religion. It has a state constitutional provision that it
749
00:41:39.119 --> 00:41:42.719
enforces pretty rigorously. And you know, to Nicole's point about
750
00:41:43.159 --> 00:41:46.199
kind of Tilton v. Richardson and its legacy in terms
751
00:41:46.239 --> 00:41:48.960
of buildings, I think sometimes people hear that and they're like, Yeah,
752
00:41:49.280 --> 00:41:51.760
the government's funding something and it shouldn't have it. It
753
00:41:51.800 --> 00:41:54.239
shouldn't have a chapel in it. And I want to
754
00:41:54.280 --> 00:41:56.559
just go back again to like the instinct that I
755
00:41:56.599 --> 00:42:00.599
really think we need to is worth thinking about a
756
00:42:00.639 --> 00:42:04.719
little bit. What is the government saying at that point,
757
00:42:04.760 --> 00:42:06.960
we're going to fund a building, and it might want
758
00:42:07.000 --> 00:42:08.920
to say, and we only want you to use it
759
00:42:08.960 --> 00:42:11.760
for science, Like that's what we're doing, and we don't
760
00:42:11.800 --> 00:42:15.519
want you using it for other purposes because that's our goal.
761
00:42:17.039 --> 00:42:20.199
That's our goal in providing this sort of funding, and
762
00:42:20.280 --> 00:42:24.199
that seems perfectly reasonable. We're providing funding to a building
763
00:42:24.400 --> 00:42:26.679
you could only use it for science, and that means
764
00:42:26.679 --> 00:42:28.559
you can't use it for religion, but you can't use
765
00:42:28.599 --> 00:42:30.920
it for yoga, and you can't use it for you know,
766
00:42:31.039 --> 00:42:33.760
for your sports team, and that's that's all fine. That
767
00:42:34.000 --> 00:42:37.000
kind of affirmative thinking about the goals of funding and
768
00:42:37.079 --> 00:42:41.119
the program seems perfectly reasonable. What's odd is like, well,
769
00:42:41.159 --> 00:42:43.480
we don't want this money diverted, but the only thing
770
00:42:43.519 --> 00:42:46.159
we don't want it diverted to is religion. But you
771
00:42:46.159 --> 00:42:48.920
can use it for anything else. You want to throw
772
00:42:49.800 --> 00:42:52.679
a graduation party, there, have at it. That's fine, And
773
00:42:52.719 --> 00:42:55.800
I think that's kind of the Carson instinct that requires
774
00:42:55.880 --> 00:42:58.840
I think serious, as the cult said, serious legislative thinking
775
00:42:59.239 --> 00:43:03.000
about what we're trying to accomplish with certain public benefit programs.
776
00:43:03.400 --> 00:43:05.960
And again, not this laziness that as long as we
777
00:43:06.079 --> 00:43:08.280
kind of say, but no religion, we're being true to
778
00:43:08.320 --> 00:43:09.920
the goals of government programs.
779
00:43:12.159 --> 00:43:14.920
Again, if anyone has questions, please put them in the
780
00:43:15.039 --> 00:43:17.159
Q and A box and we will get to them
781
00:43:17.159 --> 00:43:18.840
in just a moment. I did think, just building on
782
00:43:19.280 --> 00:43:22.119
what Professor Helpa was just saying, they're a moment ago
783
00:43:22.239 --> 00:43:25.840
that maybe it's a law professor's trick. But to say,
784
00:43:26.320 --> 00:43:28.280
what are the what would the skeptics say here? I
785
00:43:28.360 --> 00:43:32.519
suppose one line would be, of course, to reject Carson
786
00:43:33.159 --> 00:43:38.360
and Justice Sotomare wrote a strong discent in that case.
787
00:43:40.079 --> 00:43:44.119
And what would the other kind of arguments be that
788
00:43:44.159 --> 00:43:47.599
the others might adduce, and what would your responses be
789
00:43:47.639 --> 00:43:48.440
to them?
790
00:43:49.440 --> 00:43:53.119
So I think the skeptics there are two things. And
791
00:43:53.159 --> 00:43:58.320
if you're sort of like, well, I figured not true anymore,
792
00:43:58.440 --> 00:44:01.000
But one might be, well, some of this stuff is
793
00:44:01.039 --> 00:44:03.639
just allowed under lack versus Davy, so it may not
794
00:44:03.719 --> 00:44:05.480
be unconstitutional.
795
00:44:05.920 --> 00:44:06.719
It's like stupid.
796
00:44:08.400 --> 00:44:11.480
But you know a lot of these statutes and hire
797
00:44:11.559 --> 00:44:15.239
ed seem to be kind of the hook is lockview Davy.
798
00:44:15.440 --> 00:44:18.599
So the ones that say you can go to any
799
00:44:18.639 --> 00:44:22.800
college unless it is it lacks a secular purpose or
800
00:44:22.960 --> 00:44:27.079
you know, religion pervades everything, or the ones that say
801
00:44:27.679 --> 00:44:31.039
you can get the scholarship, but not if you're studying theology,
802
00:44:31.960 --> 00:44:34.599
and then you know. My response to that is, it
803
00:44:34.679 --> 00:44:37.960
seems pretty clear after Carson that Lock versus Davy is
804
00:44:38.000 --> 00:44:38.880
a pretty.
805
00:44:38.599 --> 00:44:40.559
Much cabin to its facts.
806
00:44:40.679 --> 00:44:42.880
I mean, it says like this is the state's interest
807
00:44:42.960 --> 00:44:45.960
in not paying for minister training. But I will say,
808
00:44:45.960 --> 00:44:47.800
if anybody wants to get rid of Lack versus Davy,
809
00:44:47.920 --> 00:44:50.159
this is the right. There's a lot of good lawsuits
810
00:44:50.159 --> 00:44:53.320
in this on this website. I think the other one
811
00:44:53.320 --> 00:44:55.760
that Michael and I have talked about is, you know,
812
00:44:56.280 --> 00:44:58.360
is there to what extent is sort of the direct
813
00:44:58.519 --> 00:45:01.079
indirect funding distinct doing work?
814
00:45:01.360 --> 00:45:04.639
So I mean the buildings are clearly direct.
815
00:45:04.760 --> 00:45:07.840
I mean, so if the grant is just cash to
816
00:45:07.960 --> 00:45:13.840
a religious organization, does the religious organization does the establishment
817
00:45:13.840 --> 00:45:19.280
clause still require no religious content because there's no intervening
818
00:45:19.280 --> 00:45:20.679
private choice about how the money gets.
819
00:45:20.679 --> 00:45:22.719
But I don't think that's true.
820
00:45:22.719 --> 00:45:26.519
I mean, Trinity Lutheran was certainly not an indirect funding case.
821
00:45:26.840 --> 00:45:29.440
Lots of I mean hundreds of billions of dollars flow
822
00:45:29.480 --> 00:45:32.920
to religious organizations during COVID. I know when I said, oh,
823
00:45:33.000 --> 00:45:36.440
those are direct grants to you know, pay for Catholic
824
00:45:36.440 --> 00:45:37.599
school teachers salaries.
825
00:45:38.239 --> 00:45:40.159
So I don't think that is and that would be
826
00:45:40.199 --> 00:45:41.159
the two I.
827
00:45:41.039 --> 00:45:46.519
Think the easiest skeptical things there are. Yeah, so I
828
00:45:46.559 --> 00:45:48.199
think I don't know if Michael's other ideas, So I
829
00:45:48.239 --> 00:45:50.320
think those are the two maybe critiques, but I think
830
00:45:50.320 --> 00:45:51.039
they're both wrong.
831
00:45:54.239 --> 00:45:58.559
Yeah, I agree with that, and maybe i'd add to
832
00:45:58.599 --> 00:46:00.679
the list. Or is this worry I say long term
833
00:46:00.800 --> 00:46:02.840
talking to a reporter today that you know, some of
834
00:46:02.880 --> 00:46:08.239
this came up. There's this instinct and therefore are you
835
00:46:08.280 --> 00:46:11.880
saying that we just can't regulate? And I don't think
836
00:46:11.920 --> 00:46:14.639
that's the right answer either. And you know, I suspect
837
00:46:14.760 --> 00:46:16.559
that the three of us chatted through all the different
838
00:46:16.639 --> 00:46:19.119
kinds of regulations we thought were okay or not okay.
839
00:46:19.360 --> 00:46:21.519
You know, we might come up with different lists, but
840
00:46:21.599 --> 00:46:26.679
the basic baseline I think remains. That remains that to
841
00:46:26.719 --> 00:46:32.039
the extent government puts regulations on programs that aren't targeting religion.
842
00:46:32.079 --> 00:46:35.639
They're neutral. So it's not like a situation where you know,
843
00:46:35.840 --> 00:46:38.280
they enact some sort of change to the law and
844
00:46:38.360 --> 00:46:41.559
the regulation because now religion has to be included. And
845
00:46:41.639 --> 00:46:43.199
maybe they say on the front page of the New
846
00:46:43.280 --> 00:46:45.360
York Times we're doing it to go after religion. That's
847
00:46:45.360 --> 00:46:49.320
probably a bad idea if you're if you're litigating. But
848
00:46:49.519 --> 00:46:51.800
that doesn't mean, you know, the variety of ways in
849
00:46:51.840 --> 00:46:55.039
which I think government and I'm really trying to push
850
00:46:55.119 --> 00:46:59.239
this point, like government can still engage in neutral regulation.
851
00:46:59.440 --> 00:47:03.400
That's a place across the board. That certainly, if to
852
00:47:03.440 --> 00:47:06.320
the extent, and Michael, and this is you know, goes
853
00:47:06.360 --> 00:47:10.400
back to our unconstitutional conditions. Conversation certainly is geared towards
854
00:47:10.400 --> 00:47:13.039
the goals of the program. So think deeply about the program,
855
00:47:13.079 --> 00:47:15.559
Think deeply about what is you want. Nobody here is
856
00:47:15.599 --> 00:47:18.760
saying regulation is off the table. It just needs to
857
00:47:18.800 --> 00:47:21.960
be tethered to what you're trying to accomplish, as opposed
858
00:47:22.000 --> 00:47:25.039
to tether to a nineteen seventy one Supreme imported pion.
859
00:47:25.760 --> 00:47:28.679
So, Michael, we didn't Michael Moreland, that is Professor Morland.
860
00:47:28.960 --> 00:47:33.280
When we were thinking about the contours of this project,
861
00:47:34.039 --> 00:47:39.039
we decided to limit the hits that we were identifying
862
00:47:40.079 --> 00:47:43.079
to programs that actually discriminated against religious.
863
00:47:42.760 --> 00:47:45.840
Organizations or religious conduct. And we didn't.
864
00:47:46.440 --> 00:47:50.039
We decided not to wade into the thicket of constitutional conditions.
865
00:47:50.199 --> 00:47:52.119
I mean, there are claims you know that.
866
00:47:52.239 --> 00:47:55.079
This regulation, which may sort of look neutral on its face,
867
00:47:55.199 --> 00:47:58.880
actually has the effect of discriminating against religion. I mean,
868
00:47:58.920 --> 00:48:03.159
after Carson Mean adopted regulations and are now be challenged.
869
00:48:03.159 --> 00:48:05.880
It's in the first circuit that did various things that
870
00:48:05.960 --> 00:48:08.960
caused most religious schools not to participate, and one of
871
00:48:09.000 --> 00:48:12.400
them was it said if you find if you want
872
00:48:12.400 --> 00:48:15.119
to teach religion, that's fine, but once you teach any religion,
873
00:48:15.159 --> 00:48:20.079
you have to allow all religious all religions. So I
874
00:48:20.159 --> 00:48:23.679
guess it means like the Catholics have to let people
875
00:48:23.719 --> 00:48:24.760
say the Pope is that we're a.
876
00:48:24.760 --> 00:48:26.760
Babylon or the Jews have to let the Jews for
877
00:48:26.840 --> 00:48:27.679
Jesus have their day.
878
00:48:27.719 --> 00:48:30.480
I mean, it might view that is religious discrimination, but
879
00:48:30.800 --> 00:48:33.079
we chose not to go down that road because it
880
00:48:33.159 --> 00:48:37.320
just gets too complicated too quickly. Michael Helpin's right. I mean,
881
00:48:37.639 --> 00:48:41.199
the state of Indiana has a voucher program that covers
882
00:48:41.239 --> 00:48:44.320
almost all children, and in order to participate you have
883
00:48:44.400 --> 00:48:48.039
to take the state test. Some people don't like that,
884
00:48:48.280 --> 00:48:50.599
and in fact, most private school choice programs don't have
885
00:48:50.679 --> 00:48:54.199
that rule. But that certainly doesn't discriminate against religion. There's
886
00:48:54.199 --> 00:48:58.119
certainly no unconstitutional conditions. Problem with saying, look, if I'm
887
00:48:58.119 --> 00:49:00.840
going to give you six thousand dollars a kid where
888
00:49:00.880 --> 00:49:03.719
everybody's taking the state test, that might be a terrible
889
00:49:03.800 --> 00:49:04.800
education policy to think.
890
00:49:04.800 --> 00:49:06.320
I still think it's unconstitutional.
891
00:49:07.800 --> 00:49:10.880
So that, yeah, I do think there's a lot that
892
00:49:11.159 --> 00:49:14.199
out there, other questions that will be tackled by others.
893
00:49:15.360 --> 00:49:19.159
Maybe can I chime in one one minor point, just
894
00:49:19.280 --> 00:49:24.599
following up? And it's like meta discrimination and the fact
895
00:49:24.719 --> 00:49:28.679
that states think they can solve the substantive problems of
896
00:49:28.719 --> 00:49:32.719
what the legislation is supposed to accomplish by going after
897
00:49:32.880 --> 00:49:37.760
religion is if you ask about the underlying assumptions, you
898
00:49:37.800 --> 00:49:41.039
can see how that surfaces a certain kind of discrimination
899
00:49:41.159 --> 00:49:44.639
on its own, this perception that that is what is
900
00:49:45.159 --> 00:49:49.360
persona on growdup. And you know, Nicole, we've chatted about
901
00:49:49.360 --> 00:49:51.360
this a bunch like this is why I just might
902
00:49:51.480 --> 00:49:54.440
personally my faith community, the Orthodox Jewish community has really
903
00:49:54.960 --> 00:49:58.320
pressed very hard on this issue already since the nineteen sixties.
904
00:49:58.400 --> 00:50:00.840
I mean, and this was at a time when I'd
905
00:50:00.920 --> 00:50:04.119
say the politics of these issues looked very, very different.
906
00:50:04.119 --> 00:50:07.519
But Orthodox Jews have for a long time perceived that
907
00:50:08.079 --> 00:50:10.079
not only is it the case and this is you
908
00:50:10.119 --> 00:50:12.440
can find this in congressional testimony again that goes back
909
00:50:12.480 --> 00:50:15.400
all the way to nineteen sixty one, that not only
910
00:50:15.480 --> 00:50:18.280
is it that funds and benefits were off the table
911
00:50:18.360 --> 00:50:22.239
because of their religious commitments and affiliations, but that there
912
00:50:22.320 --> 00:50:26.960
was something almost nefarious about this, that it meant that
913
00:50:27.239 --> 00:50:31.199
it undermined the principle of equal citizenship. That even if
914
00:50:31.199 --> 00:50:34.199
there wasn't really much money on the table, the idea
915
00:50:34.280 --> 00:50:37.559
that we would contort programs, I think we were solving
916
00:50:37.599 --> 00:50:42.079
their assuring their ultimate goal merely by excluding those with
917
00:50:42.199 --> 00:50:45.719
religious commitments. There is something there's something about that that
918
00:50:45.840 --> 00:50:49.280
was deeply problematic. And you know, again different faith communities
919
00:50:49.320 --> 00:50:52.599
have their commitment to this point is i'd say ebbed
920
00:50:52.599 --> 00:50:55.719
and flowed over time in a variety of ways. Not
921
00:50:55.800 --> 00:50:57.039
the Catholic community, but you know.
922
00:50:57.079 --> 00:50:59.440
Others OG complainers.
923
00:50:59.599 --> 00:51:02.280
That's right. I think this is why Nicole and I
924
00:51:02.320 --> 00:51:05.639
hang out so much. We AREBG complainers. We didn't have
925
00:51:05.719 --> 00:51:10.800
websites though, back in the early nineteen sixties, but I
926
00:51:10.840 --> 00:51:12.800
think that's at the core of at the core of it,
927
00:51:12.840 --> 00:51:15.239
and the reason why it's been such a consistent complaint
928
00:51:15.280 --> 00:51:18.400
is because it's money is money and people can raise it,
929
00:51:18.480 --> 00:51:20.559
but kind of the damage it does to principles of
930
00:51:20.599 --> 00:51:27.280
equalsid stay and have deeply disturbing effects. And I think
931
00:51:27.440 --> 00:51:30.039
you know to some extent, this website is an attempt
932
00:51:30.119 --> 00:51:32.800
to surface those and find ways to solve both both
933
00:51:32.880 --> 00:51:33.639
kinds of problems.
934
00:51:35.039 --> 00:51:37.480
Right. Well, I do want to get some audience questions,
935
00:51:37.519 --> 00:51:41.039
and actually one was about the Postcarson. Is the question
936
00:51:41.079 --> 00:51:45.079
to ask phenomenon of states changing their non discrimination requirements
937
00:51:45.119 --> 00:51:48.639
to gerrymander religious institutions. How do public benefits programs? That's
938
00:51:48.639 --> 00:51:52.360
the unconstrucial conditions issue that we talked about a little bit.
939
00:51:53.119 --> 00:51:57.000
Here's another question. If a religious organization wins the grant
940
00:51:57.159 --> 00:51:59.960
and is the only provider of the service in an area,
941
00:52:00.599 --> 00:52:03.280
is it a problem that some proportion of the intended
942
00:52:03.320 --> 00:52:07.639
beneficiaries may have a religious objection to receiving a service
943
00:52:08.039 --> 00:52:12.920
filled with teaching activity, teaching and activities of the provider's religion.
944
00:52:15.280 --> 00:52:17.039
Well, so that's an interesting question.
945
00:52:18.599 --> 00:52:22.119
In something that we that I've written about elsewhere, a
946
00:52:22.239 --> 00:52:25.880
put called Biden boils the religious liberty frog. There was
947
00:52:25.920 --> 00:52:31.719
a Biden administration regulation of geral choice that made it
948
00:52:31.800 --> 00:52:32.920
harder for.
949
00:52:34.280 --> 00:52:35.760
Institutions to remain faithful.
950
00:52:36.760 --> 00:52:40.159
They actually tried to jerry rig the line between direct
951
00:52:40.239 --> 00:52:44.360
and indirect based upon the number of providers in an area.
952
00:52:44.639 --> 00:52:50.280
So to this question, my answer is the non discrimination
953
00:52:50.480 --> 00:52:51.360
rule applies.
954
00:52:52.320 --> 00:52:52.639
It's not.
955
00:52:53.079 --> 00:52:55.159
I don't think it's the neutrality principle.
956
00:52:55.239 --> 00:52:58.960
As Zaleman points out, it's it's not really an empirical question.
957
00:53:00.599 --> 00:53:03.800
That is to say, the question in Zelman back to
958
00:53:03.840 --> 00:53:07.679
the original voucher case. The argument the Descent made just
959
00:53:07.679 --> 00:53:10.199
to Suitor very strongly was there really wasn't a choice
960
00:53:10.199 --> 00:53:13.079
here because the parents there was only you know, ninety
961
00:53:13.079 --> 00:53:15.119
six percent of the kids were in religious schools, and
962
00:53:15.519 --> 00:53:18.239
like I don't remember, ninety percent of the schools are religious,
963
00:53:18.400 --> 00:53:20.239
and their choice was like go to your crappy club,
964
00:53:20.480 --> 00:53:22.599
you know, Cleveland public schools, or go to this religious school.
965
00:53:22.880 --> 00:53:24.760
And the answer that the quirk is in that case
966
00:53:24.840 --> 00:53:29.119
is the constitutionality of a rule of what neutrality is
967
00:53:29.199 --> 00:53:33.360
can't turn on local demographics because you know, the parental
968
00:53:33.480 --> 00:53:34.760
choice would be better okay in.
969
00:53:34.679 --> 00:53:38.119
New York, but not in Kansas. So I think that's
970
00:53:38.199 --> 00:53:40.519
the answer to the question.
971
00:53:41.639 --> 00:53:46.960
Obviously, the government can choose to provide the services itself.
972
00:53:47.840 --> 00:53:50.679
I just don't think that it can say, we want
973
00:53:50.719 --> 00:53:52.880
to make sure there's a non religious option, and since
974
00:53:52.960 --> 00:53:55.800
there's only one, you know, only one person is bidding,
975
00:53:56.079 --> 00:53:59.679
that's not less an ideal. In any bidding situation, we're
976
00:53:59.719 --> 00:54:01.760
just going to say no, because they're religious, We're going
977
00:54:01.800 --> 00:54:05.119
to require them to not secularize. I think there's another
978
00:54:05.239 --> 00:54:08.039
question that we really don't address, and I think it's
979
00:54:08.039 --> 00:54:08.599
a harder one.
980
00:54:08.639 --> 00:54:10.800
It's an unconstitutional conditions type question.
981
00:54:11.360 --> 00:54:17.719
Is whether you can require the recipients to let religious,
982
00:54:19.000 --> 00:54:21.559
non religious, or objectors or people don't want to do
983
00:54:21.599 --> 00:54:26.400
a religion opt out. Opt Outs are difficult in some
984
00:54:26.480 --> 00:54:29.800
situations for some religions because there's really no non Jesus
985
00:54:29.880 --> 00:54:32.639
time right, So it's really hard to say to it
986
00:54:33.280 --> 00:54:36.239
you get to opt out of religion in a Catholic school,
987
00:54:36.320 --> 00:54:41.360
I mean in ideally in my faith tradition, because alsism
988
00:54:41.480 --> 00:54:44.039
pervades everything, so they really you could say you don't
989
00:54:44.039 --> 00:54:45.840
have to get a Mass on Wednesday, I guess, but
990
00:54:45.920 --> 00:54:48.480
I think those are that What does it mean to
991
00:54:48.960 --> 00:54:51.760
you say you have to let people opt out? Is
992
00:54:51.800 --> 00:54:55.280
that religious discrimination? Is that discrimination against faiths that have
993
00:54:56.480 --> 00:54:59.360
make it that they really do believe that faith should be.
994
00:54:59.280 --> 00:54:59.960
A part of everything.
995
00:55:00.840 --> 00:55:02.800
That's not something we addressed in the project.
996
00:55:03.920 --> 00:55:06.039
I think it's a really interesting question. I like it
997
00:55:06.119 --> 00:55:08.159
quite a bit, and maybe I would just add that
998
00:55:09.280 --> 00:55:12.000
I can imagine circumstances where maybe somebody would have a
999
00:55:12.039 --> 00:55:16.239
constitutional claim that their access to public benefits is conditioned
1000
00:55:16.280 --> 00:55:20.519
on they're being willing to participate in religious activities that
1001
00:55:20.679 --> 00:55:26.360
they find theologically problematic. But to the extent that's true,
1002
00:55:26.360 --> 00:55:28.559
I think the remedy is not going to be anything
1003
00:55:28.599 --> 00:55:30.880
on the Carson v Make inside of the ledger. I
1004
00:55:30.880 --> 00:55:35.480
think that's the question about government's obligation to provide some
1005
00:55:35.519 --> 00:55:38.639
sort of alternative, and the government always has an alternative meaning.
1006
00:55:39.400 --> 00:55:41.960
I guess the hypothetical presumes that the benefits are being
1007
00:55:41.960 --> 00:55:45.960
provided a mendicoal already prefigured, the benefits are only being
1008
00:55:46.000 --> 00:55:50.159
provided by private institutions, and the only institutions are religious institutions.
1009
00:55:50.559 --> 00:55:52.760
And if that's all true, then maybe the government's making
1010
00:55:52.760 --> 00:55:56.719
an error about the vehicle through via which it's chosen
1011
00:55:56.800 --> 00:56:00.280
to provide a public benefit, and maybe it has a
1012
00:56:00.320 --> 00:56:03.320
constitutional obligation. I'm thinking right now about the free exercise
1013
00:56:03.360 --> 00:56:07.800
clause constitutional obligation to make those benefits available, not via
1014
00:56:07.840 --> 00:56:11.000
private institutions, but also some sort of public benefit through
1015
00:56:11.039 --> 00:56:13.840
public institutions, so that somebody doesn't have to choose between
1016
00:56:14.159 --> 00:56:18.760
participating in religious activities that they find theologically problematic and
1017
00:56:18.840 --> 00:56:21.039
a public benefit. But I don't think that would impact
1018
00:56:21.239 --> 00:56:26.719
the Carson obligation to you. If you're open to private institutions,
1019
00:56:26.800 --> 00:56:28.679
make sure all institutions can participate.
1020
00:56:30.719 --> 00:56:34.360
Another question from the audience. The Carson line of cases
1021
00:56:34.440 --> 00:56:37.760
deal with generally available public benefits to three Supreme Court
1022
00:56:37.800 --> 00:56:40.639
cases all dealt with benefits in the form of money, grants,
1023
00:56:40.679 --> 00:56:45.079
or scholarships, but it seems public benefits could extend beyond
1024
00:56:45.159 --> 00:56:47.159
money programs Thoughts.
1025
00:56:46.840 --> 00:56:52.039
On that luthernhead was about recycled tires, so there are
1026
00:56:52.079 --> 00:56:55.519
in kind benefits. Michael gave the example of food that's
1027
00:56:55.559 --> 00:56:56.960
going to rot from the army.
1028
00:56:57.119 --> 00:56:58.280
That's an inkind benefit.
1029
00:57:00.079 --> 00:57:03.320
I think you can imagine what if a pro you know,
1030
00:57:03.440 --> 00:57:09.239
is concern about security around you know, for eith based
1031
00:57:09.280 --> 00:57:15.239
schools or schools, school security, you know, place of worship,
1032
00:57:15.760 --> 00:57:18.880
so those would be you know, all in kind benefits.
1033
00:57:18.920 --> 00:57:21.679
I don't really think it's in our programs that we
1034
00:57:21.760 --> 00:57:23.800
identify are not all about money.
1035
00:57:24.039 --> 00:57:25.239
Many of them are about money.
1036
00:57:25.280 --> 00:57:27.360
But some of them are sort of in kind benefits
1037
00:57:27.400 --> 00:57:31.760
that are being extended to everyone but religious people.
1038
00:57:33.599 --> 00:57:36.800
Another question, and maybe our last one, given that we're
1039
00:57:36.840 --> 00:57:41.519
up against our time. Here, can states discriminate against religion
1040
00:57:41.719 --> 00:57:46.719
in furtherance of other anti discrimination requirements such as equal
1041
00:57:46.760 --> 00:57:49.960
treatment of women, LGBT individuals, et cetera.
1042
00:57:53.239 --> 00:57:56.920
You can go, Michael, I think we may all have
1043
00:57:57.039 --> 00:58:00.280
different views on this subject. Let me try to just
1044
00:58:00.320 --> 00:58:04.000
describe what I think where the law is as opposed
1045
00:58:04.039 --> 00:58:09.159
to so, I think imagine that there's a non discrimination
1046
00:58:09.920 --> 00:58:13.960
provision that has existed since time immemorial, so that we're
1047
00:58:14.000 --> 00:58:16.400
not dealing with the problem in Maine where it only
1048
00:58:16.480 --> 00:58:21.639
comes once religious institutions arrived to the public benefit program.
1049
00:58:22.400 --> 00:58:25.519
So long as the law is neutral and neutral and
1050
00:58:25.639 --> 00:58:28.280
generally applicable, at least in my view, it can't qualify
1051
00:58:28.280 --> 00:58:32.159
as an unconstitutional condition because it is constitutional. Would be
1052
00:58:32.159 --> 00:58:36.000
a constitutional condition, there would be no constitutional violation. So
1053
00:58:36.960 --> 00:58:39.800
in the main, that's a funny joke. In the main,
1054
00:58:40.719 --> 00:58:44.480
I would think that you could have non discrimination provisions.
1055
00:58:45.400 --> 00:58:50.000
And again in theory the puzzle you get to, I think,
1056
00:58:50.119 --> 00:58:52.079
and maybe this is where you know, I don't know,
1057
00:58:52.119 --> 00:58:54.840
if you chat about this before is when you run
1058
00:58:54.880 --> 00:58:58.800
into other versions of free exercise claims or free exercise
1059
00:58:58.840 --> 00:59:00.880
and estabtional clause claims, when you hit things like the
1060
00:59:00.960 --> 00:59:05.800
church autonomy doctrine. So, for example, I don't think the
1061
00:59:05.840 --> 00:59:09.599
state could condition participating in a government funding program on
1062
00:59:09.679 --> 00:59:13.960
saying that you will not discriminate in the hiring and
1063
00:59:14.039 --> 00:59:22.239
firing of any of your faculty based on based on race, sex,
1064
00:59:22.400 --> 00:59:25.760
national argent, etc. Because what that would mean is a
1065
00:59:25.840 --> 00:59:28.320
religious school which has the constitutional right come to the
1066
00:59:28.320 --> 00:59:35.079
ministerial exception to hire and fire for any ministerial employee.
1067
00:59:35.480 --> 00:59:37.480
They'd be giving that up. And I think this is
1068
00:59:37.599 --> 00:59:39.400
just the way the doctrine would work right now. I
1069
00:59:39.400 --> 00:59:43.320
don't think I'm padding anything. They'd be giving up a
1070
00:59:43.440 --> 00:59:46.880
constitutional right at that point, the ministerial exception, which lives
1071
00:59:46.920 --> 00:59:49.480
under both the free exercise and establishment clauses, in order
1072
00:59:49.519 --> 00:59:52.599
to get government funds, and then you would have I
1073
00:59:52.639 --> 00:59:59.400
think you'd be using money to purchase and some sort
1074
00:59:59.440 --> 01:00:02.000
of purchase back some sort of constitutional right, and I
1075
01:00:02.000 --> 01:00:04.039
think that would likely go to the Court of the
1076
01:00:04.119 --> 01:00:08.599
Unconstitutional Conditions doctrine. I think on most views of the subject,
1077
01:00:08.920 --> 01:00:12.239
there's some mind drawing in here, what about students, what
1078
01:00:12.280 --> 01:00:15.719
about faculty? There are also some interpretive issues. You can
1079
01:00:15.760 --> 01:00:18.760
imagine the statute saying that you can't discriminate, but maybe
1080
01:00:18.800 --> 01:00:22.960
you should read that statute as except for instances that
1081
01:00:23.000 --> 01:00:26.960
are protected by constitutional provisions. So I think there's some
1082
01:00:27.079 --> 01:00:29.880
line drawing in there. But I think that's the basic
1083
01:00:29.960 --> 01:00:33.480
way the law would work. And now I'm looking forward
1084
01:00:33.519 --> 01:00:34.920
to too smart people, so.
1085
01:00:34.960 --> 01:00:36.800
I actually I would say I think that's probably right,
1086
01:00:36.840 --> 01:00:39.440
although I think about it a little bit differently. I
1087
01:00:39.480 --> 01:00:42.760
think the church autonomy doctrine, whatever it is, it clearly
1088
01:00:42.800 --> 01:00:46.320
extends to the hiring and firing administers, including teachers who
1089
01:00:46.360 --> 01:00:49.119
are charged with teaching the faith.
1090
01:00:50.320 --> 01:00:51.360
That's just not waivable.
1091
01:00:51.519 --> 01:00:54.599
Or you might say the court lacks jurisdiction over those decisions,
1092
01:00:54.920 --> 01:00:57.039
so you can't condition it.
1093
01:00:57.039 --> 01:01:00.360
It just it's not something that can be given up.
1094
01:01:00.840 --> 01:01:03.079
So and in fact, it's interesting in some of these
1095
01:01:03.119 --> 01:01:07.679
ministerials exception cases, sometimes the schools are getting money and
1096
01:01:07.719 --> 01:01:09.480
no one is even considering that, So.
1097
01:01:09.480 --> 01:01:11.119
I think you probably can't.
1098
01:01:11.360 --> 01:01:13.400
I do think the big question is what's the scope
1099
01:01:13.440 --> 01:01:16.599
of those of the church autonomy doctrine you mentioned student admissions?
1100
01:01:16.639 --> 01:01:20.360
I mean Jewish schools typically, especially in the Orthodox tradition
1101
01:01:20.480 --> 01:01:23.280
only in mid Jews. What if they said you couldn't
1102
01:01:23.280 --> 01:01:25.719
discriminate in student admissions.
1103
01:01:25.760 --> 01:01:28.000
Would that be part of the church autonomy doctrine?
1104
01:01:28.360 --> 01:01:31.239
Would it be discriminating between Jewish schools and Catholic schools
1105
01:01:31.280 --> 01:01:33.840
because we would be glad to take Jewish students. So
1106
01:01:33.880 --> 01:01:36.679
I think, like those are the hard, hard questions. I
1107
01:01:36.840 --> 01:01:39.920
just don't think. I certainly it's waiveable, so you can't.
1108
01:01:40.000 --> 01:01:42.719
It can't be a condition. I don't know if that's
1109
01:01:42.880 --> 01:01:43.960
a slightly different take.
1110
01:01:46.440 --> 01:01:49.280
Great well, thank you both so much, and thank you
1111
01:01:49.320 --> 01:01:51.159
to our audience. I apologize there are a couple of
1112
01:01:51.239 --> 01:01:53.440
questions we didn't get to, but we have gone for
1113
01:01:53.480 --> 01:01:58.519
the full hour. The website again is Religious Equality dot net.
1114
01:01:58.840 --> 01:02:01.599
We've covered a lot of ground about federal and state
1115
01:02:01.719 --> 01:02:05.960
law and some Supreme Court cases and some challenging hypotheticals.
1116
01:02:06.280 --> 01:02:09.519
And I'm grateful to Professor Garnett and Professor Health and
1117
01:02:09.639 --> 01:02:12.880
for their participation in it. Go to the website, look
1118
01:02:12.920 --> 01:02:17.440
at your state and learn about these issues in different
1119
01:02:17.440 --> 01:02:20.719
parts around the country. And with that we are adjourned.
1120
01:02:21.119 --> 01:02:23.760
Thank you, Michael, Thank you, Michael, bye, everybody.
1121
01:02:24.880 --> 01:02:27.480
Thank you for listening to this episode of fedsock forms,
1122
01:02:27.639 --> 01:02:30.760
a podcast of the Federal Society's practice groups. For more
1123
01:02:30.760 --> 01:02:34.039
information about the Federal Society, the practice groups, and to
1124
01:02:34.039 --> 01:02:36.880
become a Federal Society member, please visit our website at
1125
01:02:36.960 --> 01:02:38.280
fedsoc dot org