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September 30, 2011


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I am not sure the DOJ's brief is as dire as you make it seem. First of all, the ADA and Title VII itself already allow for a certain amount of religious discrimination or preference. So we have these statutory exceptions without the need for the judicially-created ministerial exception, which goes beyond any kind of religious motivation for the need to discriminate. Is there really a religious need to retaliate against people who file disability-related claims? Second, doesn't the DOJ brief specifically mention how associational rights could address your concern about the Roman Catholic church needing to limit its priesthood to men, or the Jewish rabbinate being limited to men? After all, the Supreme Court held that the Boy Scouts did not have to accept a gay troop leader. Couldn't the same logic protect the same interests? In sum, I am not sure we need the ministerial exception. And there are other ways to protect those religious interests without given religious entities a carte blanche to do whatever they want under the guise of religion.

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