We agree not to outlaw the Church. (How's that for a compromise?)

Caroline Mala Corbin has posted a new paper, Expanding the Bob Jones Compromise.  Here's the abstract:

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.

In the paper itself, we learn that "the Roman Catholic Church, the Southern Baptist Convention, the Eastern Orthodox Church, the Church of Jesus Christ of Latter-Day Saints . . . Seventh Day Adventists, Jehovah's Witnesses, and Orthodox Judaism exclude women from the ministry and other leadership positions." (pp. 14-15)   Such organizations "should not receive taxpayer money." (p. 15)  Indeed, "providing taxpayer money not only helps invidious discrimination flourish, but it puts the state's stamp of approval on an organization's discriminatory practices." (p. 22)

I'm not exactly sure what "receive taxpayer money" means.  Certainly taxpayers are free to give their money to whatever group they choose.  Tax-exempt status may mean that the government is foregoing revenue that they would receive absent such status, but that's not the same thing as receiving "taxpayer money," as though the government is directly subsidizing a church.  As Justice Powell noted in his concurrence in Bob Jones, the tax exemption is not a tool with which to "reinforce any perceived 'common community conscience,'" but rather is an "indispensable means of limiting the influence of government orthodoxy on important areas of community life." (461 U.S. at 609)

As for Prof. Corbin's factual assertion that tax-exempt status conveys "the state's stamp of approval," that becomes more likely as the state becomes more selective in granting the status.  I have not seen survey data, but my guess is that few Americans believe that the federal government approves (or disapproves) of the Catholic Church's all-male priesthood.  That's how it should be.

In any event, how does all this amount to the "compromise" advertised in the paper's title?  Apparently because Corbin refrains from "suggesting that these organizations be outlawed," noting that "arguably there are benefits to organizational diversity." (p. 15) (emphasis added)  Very generous.