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Full Access Discrimination within Religious Schools

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Discrimination within Religious Schools

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Places of contact between religion and the state has increased considerably over time; as this overlap has increased, liberals have increasingly seen fit to call for state intervention in religions that are internally discriminatory in the name of equal citizenship. By looking at the issue of direct and indirect state support for discriminatory schools, I argue for a more pluralistic and tolerant view of religion than that of many liberals. Preserving diversity is an important liberal good that should not lost sight of, though there are limits to the kinds of discrimination the liberal state should support. Much of my argument rests on the distinction between direct and indirect support. The liberal state should impose strict standards on funds it grants directly to organizations, but it should be more relaxed for indirect support it gives, except in exceptional circumstances.

1. fn11 See generally W. Kymlicka, Contemporary Political Philosophy: An Introduction (2nd ed., 2001).
2. fn22 S.M. Okin, ““Mistresses of Their Own Destiny”: Group Rights, Gender, and Realistic Rights of Exit”, 112 Ethics 205 (2002).
3. fn33 Bob Jones University v. United States, 461 U.S. 574 (1983).
4. fn44 Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619. For a brief description of this case, see F.M. Gedicks, “Toward a Constitutional Jurisprudence of Religious Group Rights”, Wis. L. Rev. 99 (1989).
5. fn55 W. Galston, “Two Concepts of Liberalism”, 105 Ethics 516 (1995).
6. fn66 See Okin, supra note 2. See also S.M. Okin, “Multiculturalism and Feminism: No Simple Question, No Simple Answers”, in A. Eisenberg & J. Spinner-Halev (eds.), Minorities Within Minorities: Equality, Rights, Diversity, 87, (2004).
7. fn77 J.K. McNulty, “Public Policy and Private Charity: A Tax Policy Perspective”, 3 Va, Tax Rev. 229 (1983); D. Pozen, “Remapping the Charitable Deduction”, 39 Conn. L. Rev. 531 (2006); D.A. Brennen, “A Diversity Theory of Charitable Tax Exemption-Beyond Efficiency, Through Critical Race Theory, Toward Diversity”, 4 Pittsburgh Tax Rev. 1 (2006); M.P. Fleischer, “Theorizing the Charitable Tax Subsidies: the Role of Distributive Justice”, 87 Wash. U. L. Rev. 505 (2009). (Fleischer’s article cites and criticizes much of this literature.)
8. fn88 R. Putnam, Making Democracy Work: Civic Traditions in Modern Italy (1993). See also N. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (1998).
9. fn99 R. Reich, Lacey Dorn and Stefanie Sutton, Anything Goes: Approval of Nonprofit Status By the IRS (2009).
10. fn1010 Ibid.
11. fn1111 M. Luo & S. Strom, “Donor Names Remain Secret as Rules Shift”, N.Y. Times, Sept. 21, 2010, at A1.
12. fn1212 C.O. Galvin & N. Devins, “A Tax Policy Analysis of Bob Jones University V. United States”, 36 Vand. L. Rev. 1353 (1983).
13. fn1313 The one partial exception is the military.
14. fn1414 See Reich, supra note 9.
15. fn1515 J. Spinner-Halev, Surviving Diversity: Religion and Democratic Citizenship (2001).
16. fn1616 R. Reich, “Toward a Political Theory of Philanthropy”, in P. Illingworth et al. (eds.), Giving Well: The Ethics of Philanthropy (2010).
17. fn1717 M.P. Fleischer, “Theorizing the Charitable Tax Subsidies: the Role of Distributive Justice”, 87 Wash. U. L. Rev. 505 (2009).; see also L. Murphy & T. Nagel, The Myth of Ownership: Taxes and Justice (2004).
18. fn1818 Rob Reich’s argument about how the wealthy benefit much more the charitable tax-deduction than the poor is persuasive. See Reich, supra note 16.
19. fn1919 S. Verba et al., Voice and Equality: Civic Voluntarism in American Politics, 304–333 (1995).
20. fn2020 S.M. Okin, Justice, Gender, and the Family (1989).
21. fn2121 For how this was accomplished in some Protestant denominations, see M. Bendroth & V. Brereton, Women and Twentieth-Century Protestantism (2001) or the struggles of women in traditional religions see L. Tanenbaum, Taking Back God: American Women Rising Up for Religious Equality (2011).
22. fn2222 I defend the idea of exit in J. Spinner-Halev, “Autonomy, Association and Pluralism”, in A. Eisenberg & J. Spinner-Halev (eds.), Minorities within Minorities: Equality, Diversity and Rights (2005).
23. fn2323 Letter of Pope John Paul II to Women (June 29, 1995) available at
24. fn2424 Jewish Feminist Orthodox Alliance, See also C. Manning, God Gave Us the Right: Conservative Catholic, Evangelical Protestant, and Orthodox Jewish Women Grapple With Feminism (1999).
25. fn2525 For an exploration of how this is being accomplished in some traditional religions in the U.S. see Tanenbaum, supra note 21 and Manning, supra note 24.
26. fn2626 J.S. Mill, On Liberty and Other Essays, 63 (1991).
27. fn2727 This was at issue in a recent Israeli Supreme Court case, which found that a state- funded school discriminated against Sephardic Jews. The Court rightly ruled that the discrimination was illegal. Noar Kehalacha Association v. Ministry of Education, HCJ 1067/08 (2010).
28. fn2828 Bob Jones University, Statement about Race at BJU,

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Affiliations: 1: Kenan Eminent Professor of Political Ethics, Department of Political Science, University of North Carolina at Chapel Hill, Email:


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