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When it comes to religious groups, who's really facing discrimination?

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Schools can still adopt a nondiscriminatory policy by funding either all or no student groups. That was the choice the Supreme Court gave the University of Virginia in its Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.

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The question in the current case is where to draw the line. Schools such as Hastings are legitimately barred from discrimination in hiring and promotions. However, barring student organizations based on their religious views puts the state in the position of bestowing favored and unfavored status on groups.

We need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group. For example, tax exemption should aim to encourage citizens to participate in our society through groups that deepen public debate. These associations not only help individuals define their own values, they also protect the pluralism that defines our nation.

Such neutrality does not mean discrimination is a protected religious right, allowing the faith-based Ku Klux Klan, for example, to engage in public acts of racial hatred. Groups can still be punished for criminal threats, and laws still prohibit discrimination based on race, gender and national origin.

Moreover, no discrimination should be allowed in government-funded social programs. As president, George W. Bush instituted broad funding of faith-based programs, and President Obama has continued that support. That initiative is directed not at supporting specific religious viewpoints but at advancing public goals such as education, health and combating drug addiction.

The Supreme Court has an opportunity in CLS v. Martinez to recognize -- and possibly reconcile -- the conflict between nondiscrimination and the right of association. Religious groups are feeling a wall closing in on them as they face penalties for the expression and exercise of their views in public settings. For them, the wall between church and state is becoming a cell. We cannot cage faith and claim that we are a pluralistic society.

Ironically, penalizing groups for religious discrimination, in the name of fostering equality, could hamper greater recognition of gay rights. Same-sex marriage, for instance, is unlikely to gain majority support if a vote for gay rights is seen as a vote against the rights of faith-based groups. As we move toward greater recognition of gay rights -- as we should -- we need to assure religious groups that it doesn't mean they will be punished for their views.

In the end, no one will win if equality is seen as a zero-sum game.

jturley@law.gwu.edu

Jonathan Turley is a law professor at George Washington University.


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