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Old March 7, 2010, 02:35 PM   #31
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Join Date: May 24, 2005
Location: North Carolina
Posts: 2,698
Really? Let the preacher repeatedly support a particular candidate for President or refuse to allow people of a particular race to attend their "church" school and see how fast that tax exemption goes away! Religion and churches ain't the same.
The legal treatment of religion is interesting, because core aspects of religious freedom are protected beyond strict scrutiny.

from Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny by EUGENE VOLOKH

It's widely assumed that the Free Exercise Clause and the Religious Freedom Restoration Act bar the application of Title VII to race or sex discrimination by churches in their choice of clergy. But why?

The Court has already held, in the free exercise and expressive association contexts, that the interests in stopping race and sex discrimination in education and public accommodations are compelling; lower courts agree that the same is true in employment. What could be more narrowly tailored to these interests than a prohibition on such discrimination?

To protect the church's right to discriminate in its choice of clergy, courts must abandon the notion that infringements of religious freedom are allowed so long as they pass strict scrutiny. In some situations, a court must hold -- as lower courts generally do in clergy discrimination cases -- that "the `inroad on religious liberty┬┤ is too substantial to be permissible" even though the law is narrowly tailored to a compelling interest. What does the work here is not strict scrutiny, but an underlying theory of the autonomy of religious institutions.
Volokh's paper discussing strict scrutiny could suggest that the attempts by Stevens and Breyer to bifurcate the RKBA might result in some beneficial recognition of a "core" 2A right that would even transcend the normal rules of strict scrutiny.

Note that the Heller decision left no room to absolutely ban handguns in the home, even if a ban could otherwise be structured to meet the tests of strict scrutiny: "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."

Last edited by gc70; March 7, 2010 at 02:42 PM.
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