When could discrimination be fine?

For the same reason Religious Orgs. are exempt under Title VII of the 1964 Civil Rights Act.


Imagine if the only local homeless shelter and soup kitchen are run by the town synagogue. Imagine if the town synagogue services a community of 1,000 congregants and there are 1000 Jewish residents in the town. Imagine now that this is the only soup kitchen and homeless shelter and there are 10,000 residents total in the town; a ratio of 10 to one, non-Jewish to Jewish. Imagine anti-discrimination legislation that requires that for non-discrimination purposes, any humanitarian or charitable org. that receives Federal funding from the Presidents' federal Faith Based Initiative must hire according to a demographically reflective population ratio. If the Jewish run soup kitchen/shelter gets federal faith based funding, it must hire ten non-Jews to every Jewish person it hires. So they don't discriminate. Or is that discrimination against the 999 other Jewish people in the synagogue's congregation who don't get a job in their own soup kitchen?

Now imagine that there is an order of Jesuit Priests who collectively have a mission and ministry of visiting men's prisons as part of the Matthew 25 mandate. It's a men's prison, it's a men's order of religious men. As part of their ministry they collectively pray together for the souls of the inmates. Now imagine that they want to become eligible for federal funding under the President's faith based funding office to receive funds to, for example, deliver materials to inmates, or provide release anti-recidivist services, counseling, and the like. To qualify, they can't discriminate in any hiring for this program- because that's just, well, discriminatory. So
a woman, not even of the same religion applies- because she likes to visit men in prison. The government tells them that they don't qualify for the federal funding unless the woman is hired to follow them all in the prison. Discrimination? Against whom? The woman if she doesn't get to go, against the Priests because they are being discriminated against in their religion by violation of the tenets of exclusivity which mandate that their order is all men?

These were some of the tougher issues (not those exact hypos but the issues) that flooded the air today at the Brookings' Institution talk graciously hosted by E.J. Dionne on the recent developments in the guidelines for the Presidential Faith Based Funding office. Rabbi Sapperstein and an ACLU attorney predictably argued that any discrimination in hiring when anyone gets federal money is just bright line wrong. Sapperstein (who teaches at Georgetown Law, my alma mater) said "you can discriminate all you want in your private life but if you get federal money you can't. " Well, actually I think it's the other way around ethically. Ethically I wouldn't dare and don't discriminate in my private life a hoot or holler to the extent I can identify it, but I am not a "religion." The law has historically always allowed religions to discriminate in favor of their tenets.

This was almost titled "Rosencrantz and Gilderstern are Dead but is the Free Exercise Clause?" Sapperstein pronounced the second prong of the Establishment Clause -the non-infringement on the Free Exercise of Religion dead on arrival and cited a Supreme Court opinion to make his point. For the good of all religions everywhere including his I sure hope not.
The case recently granted cert. by the Supreme Court of Christian Legal Society v. Martinez might very well (I hope) resurrect it. Oral Arguments will be heard around Easter so I am sending up a prayer.
No agency or arm of a government (the State of California by the 10th Amendment extension of the 14th Amendment, etc.) should be able to legislate or engage in policies that infringe in the Free Exercise of Religion- which the law school in that case sought to do by kicking out a chapter of the Christian Legal Society for merely declaring that it's Articles of Incorporation prohibited anyone who didn't practice it's tenets from being on the Board. It's tenets are intrinsically exclusionary; one might even say discriminatory. For example, you cannot be on the Board if you engage in premarital or adulterous sex of any kind-
hetero or homosexual. Discrimination! So the State of California is Discriminating against religious orgs that Discriminate.

The question is obviously thus not, who is discriminating, but which kinds of discrimination are permitted and which are not. Merely calling one action discriminatory doesn't answer the ethical question. That cat in the Tasty Treats commercial has a "discriminating eye" and no one wants to kill the cat. What kinds of discrimination are permissible-
Clearly the Freedom of Assembly of the First Amendment has something to say about it. Clearly, the most basic of individual human rights has to be your right to your religious beliefs and form of worship.
Is the Federal Government going to start mandating that if Presidential Faith Based funds go to Catholic Charities that a self described Wiccan whose resume reads "Grand Master Poobah, Satanic leader of the East Bay Pentagon DPC-[Demon Possession Club]"- on top of their Harvard MBA has to get the job of comptroller for being better qualified than the Candidate whose resume includes "Catholic University...activities...liturgical chant singing."

Some things are so obvious and strike me as just too absurd to debate. If really they made it into Sapperstein's guidelines, I want to guest teach his class.