"To answer yes puts in jeopardy the civil rights laws and elevates religious groups above others."There seem to be two prominent examples. The first is when a religious organization wants to act as an employer in a way that removes some job protections established through civil rights laws. An example is a church that wants to fire an employee who becomes pregnant out of wedlock if that event or continuing to work after the child is born is proscribed by church doctrines.
"To say no infringes on the free exercise of religion and will just lead to religious organizations suing."
The second is when a religious organization receives government funding for some of its services but does not want to make those services equally available to all groups. An example is when the religious group is paid for providing adoption services, but it will not place adoptees in the homes of same-sex couples because of doctrine prohibiting such arrangements, despite state laws requiring equal access.
It was a provocative lecture. I came to the following conclusions:
1) In the case of employment discrimination, this seems like it could be reasonably handled through the employment contract. For it to be valid, the contract would have to be signed in advance and the proscribed activity linked to established religious principles. As employers, religious organizations are quite small relative to just about every labor market in which they are active. There also seems to be little to complain about if the infringement on civil liberties is done with informed consent and in advance.
2) In the case of service discrimination, I think the state or federal entity should be required to find a different provider if the religious organization would violate civil rights laws in the performance of the service. Professor Minow had some examples of possible compromises, but I was not persuaded--civil rights laws mean civil rights for all.
3) In the case of #2, the immediate consequence is that we will lose some expertise in providing some social services. High-need adoptees won't get placed, for example. Well, that doesn't have to be true over any longer time period. It will only be true if the people who argue so forcefully in favor of civil rights laws are not willing to develop (or pay someone to develop) the expertise that will be lost when the religious organization leaves the state-sponsored market. So I regard that process as unfinished business in the Civil Rights movement.
For more of Professor Minow's scholarship, read Not Only for Myself or any of her other books.