Tuesday, May 10, 2005
A few days ago, I posted a link to, and some thoughts about, an essay by Professors Alan Brownstein and Vik Amar concerning H.R. 27, the "Job Training Improvement Act", which would allow religious organizations that receive federal funding to provide social services to the needy to "discriminate" (Amar-and-Brownstein's word) on the basis of religion in hiring employees to staff these federally-funded programs. In my post, I noted -- among other things -- my frustration with the term "discrimination" in this context, noting that while "discrimination" almost always carries with it the implied modifier, "invidious", it is not obvious to me that there is anything "bad" about religious institutions to engage in religious-mission-sensitive hiring.
Professor Brownstein was kind enough to e-mail me with some reactions. He writes (and I reprint this with his permission):
You suggest in your post that we are equating religious discrimination in hiring with invidious
discrimination. We don't say that and if we implied it, we certainly did not intend to. . . . Of course, anyone, whether they are religious or not, who is given the power to discriminate on the basis of religion, may act for invidious reasons -- but that general truism about human nature is very different than the suggestion that these religion based hiring decisions are intrinsically or necessarily invidious. . . . I would like to get a sense whether you think sincerely held religious beliefs or religiously motivated conduct can ever be invidious in nature, and properly characterized as such -- and if they can, how does one distinguish an invidious religious belief from a non invidious religious belief. Are Protestant attitudes toward Catholics from 100 to 200 years ago properly characterized as invidious? or Catholic attitudes towards Jews during the same period? I think that misunderstandings about what the term invidious means in the context of religion makes it hard for people to talk to each other. . . .
. . . I *do* think that "religious" or "religiously motivated" behavior can be morally objectionable, notwithstanding it's "religious"-ness. (Since I think, pretty much, that Smith is right, I guess I have to concede that religious motivations do not exempt behavior from scrutiny). That said, (a) I'm leery, given political realities, to give too much room for the liberal order to draw lines between "good" and "bad" religiously-motivated behavior; and (b) I do not think that, generally speaking, hiring decisions motivated by a desire for preserve institutional identity and clarity of message are going to be "invidious.". . .