Expanding the Bob Jones Compromise
ACCOMMODATION AND ITS LIMITS: LEGAL RESPONSES TO RELIGIOUS PRACTICES IN THE UNITED STATES, Austin Sarat, ed., Cambridge University Press, 2012
23 Pages Posted: 22 Apr 2012 Last revised: 14 Dec 2012
Date Written: April 20, 2012
Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?
Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.
Keywords: tax exemption, tax deduction, church autonomy, sex, race, discrimination, employment discrimination, religion, free exercise, establishment, religious liberty, equality, government funding, feminism
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