Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, February 22, 2013

(More) confusion about "discrimination"

According to this editorial in the Virginia Pilot, a bill that would prohibit (more here, at Religion Clause) public institutions, that recognize student organizations generally, to discriminate against groups that exercise their right to "determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities" is itself "discriminatory" and should be rejected.  According to the Pilot, "[t]axpayers should not be required to support groups that don't open membership to all classes of taxpayers. Such groups are permitted to exist, but if the groups demand purity through exclusivity, they should do so on their members' own dimes."

In my view, the expressed concern about "taxpayers" is something of a red herring.  The issue here (as in the Christian Legal Society case) is one of recognition and equal access; any financial "subsidization" is almost certainly de minimis.  The bigger problem with the Pilot's complaint -- as I try to explain in this paper -- is that there isn't necessarily anything wrong (there isn't necessarily any reason for "taxpayers" to worry) with groups "discriminating" or being "exclusive" in their membership. 


Garnett, Rick | Permalink

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