Religious Practice and Sex Discrimination: An Uneasy Case for Toleration

Abstract

This essay considers two questions: (1) whether there are moral or instrument reasons to tolerate religious practices that contravene our fundamental public values; and (2) in instances in which there is no moral or instrumental reason to tolerate a practice that contravenes public values, whether it is appropriate to condition the availability of tax exempt status on religious institutions' fidelity to public values.

The essay offers a response and supplement to the insights contained in Caroline Mala Corbin's interesting essay, "Expanding the Bob Jones Compromise” in which Corbin thoughtfully argues that we should withdraw tax exempt status from religious institutions that discriminate on the basis of sex. Corbin observes that tax exempt status is already conditioned on nondiscrimination with respect to race, and she offers the insight that there is no principled reason to treat sex and race discrimination differently in the this context. While this essay accepts the latter insight, I argue that there may be instrumental reasons why we would be concerned about the government determining which religious practices contravene our nondiscrimination norms and which do not. I further raise concerns about the mechanism Corbin selects (conditional tax exempt status) in light of Hosanna-Tabor, the Supreme Court's latest articulation of the degree of protection offered by the Religious Clauses to religious practices that implicate the selection of ministers.

Keywords: ministerial exception, Hosanna-Tabor, sex discrimination, Establishment clause, free exercise, tolerance