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Friday, September 07, 2007

The Nondiscrimination Act and religious organizations

Here is a link to the Human Rights Campaign's release about the recent House subcommittee hearings on HR 2015, the current version of  the Employment Nondiscrimination Act.  (Here is a link to HR 2015.)  I am particularly interested in the Act's "religious organizations" exemption . . .

Earlier versions of the proposed Act provided that "[t]his Act shall not apply to a religious organization," the current version says that the exemption would only be available to a religious organization that has "as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief." (See Sec. 6(a)). 

Another Section (Sec. 6(b)), says that, with respect to non-exempt organizations, the proposed Act would not apply to "the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship."

Finally, there's Sec. 6(c):

Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.

In my view, Sections 6(a) and (b) are too narrow, and Sec. 6(c) is, well, strange.  (What is a "tenet", anyway?  Are there insignificant "tenets"?).  This is, in part, because I think it is a crucial dimension of religious freedom that religious organizations (not just "churches" or organizations involved in "worship" and "ritual") are able to hire and fire in accord with their religious identity and mission, and to engage in what might be, in another context, unjustifiable "discrimination."  (I tried to make this point, for example, in this op-ed about the Catholic Charities case in California, a few years ago.)  What do others think?

Posted by Rick Garnett on September 7, 2007 at 11:49 AM in Constitutional thoughts | Permalink


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Prof. Lederman, your distinction between co-religionists, and a broad religious exemption to discriminate against gay employees, has this flaw: the distinction does not exist, if we read "gay" as "practicing gay." For example, you write "I was, instead, referring to religious organizations (and others) refusing to hire gays and lesbians for any employment positions (regardless of whether they are believers or not)." But for the Catholic Church, that "regardless of" parenthetical is nonsensical. A practicing gay is no more a "true" practicing Catholic than a Muslim drinker or Jewish pork-eater.

Note that I am not arguing here whether the Church is right in its view, only to say that this is the Church's view, and it affects the argument. (Perhaps the statute should somehow reflect the "we hate the sin, not the sinner" angle, but that would be problematic in practical terms re enforcement, wouldn't it? Employers would have to ask, "been active lately?")

Posted by: just me | Sep 17, 2007 5:45:03 PM

Sorry, Rick -- I wasn't careful enough. I was not referring to your hypo about a church refusing to hire a *nonbeliever* as a *minister.* That scenario is covered *both* by the existing 702 coreligionists exemption *and* by the ministerial exemption. I think that's still discrimination, but not a form of discrimination that would bother very many people (and almost always nonividious).

I was, instead, referring to religious organizations (and others) refusing to hire gays and lesbians for any employment positions (regardless of whether they are believers or not), which is what I understood you to be referring to in the post when you put "discrimination" in scare quotes.

Posted by: Marty Lederman | Sep 9, 2007 3:42:37 PM

Marty -- I wrote, "what a religious insititution does when it refuses, for example, to hire a nonbeliever as a minister is not, in a morally meaningful sense, 'discrimination.'" You say, in response, "of course it's discrimination", and emphasize the invidiousness of a church, or the Boy Scouts, or "any other employer" discriminating on the basis of "sexual proclivities and urges." But, "of course", a church-hiring-clergy is not "any other employer".

Perhaps it's all just a matter of word preferences, etc., but I guess I think that words matter here. "Discrimination" no longer means -- in the legal and policy context -- "discernment", or "the making of fine distinctions." It is a morally weighty word. Today, "discrimination" always means "arbitrary" or "invidious" discrimination, and the debate about how the law should respond to "discrimination" is always about whether [arbitrary or invidious) discrimination should, for some reason, be tolerated. In my view, again, what religious institutions and communities do "when they constitute and govern themselves in accord with their religious teachings is not well regarded as "discrimination", given the way this word is used today, and should not be framed or analyzed in terms of "discrimination", which is, again, either tolerably arbitrary or intolerably invidious. A religious institution that insists that its decisions about whom to admit to ministry or membership are not subject to government approval is, I think, not insisting on a right to engage in arbitrary or invidious conduct, i.e., in "discrimination."

Posted by: Rick Garnett | Sep 9, 2007 3:01:28 PM

"to make a selection in accordance with criteria that are inherent in the enterprise for which you are making the selection doesn't strike me as "discrimination." What do you think? "

I'd disagree. It would seem that, on this account, male-only clubs that are designed to further male advantage would not be discriminating against women if they refused to let them join, but that seems absurd. I think what's really doing the work for you is that you don't think the discrimination in question is illegitimate. That's perhaps plausible, at least on some readings. (I have a fair amount of sympathy with the idea that we should want not only internal diversity in organizations but also diversity among groups, too, for example.) But that's a different thing to say then that these are not cases of discrimination. Better to make the battle about what forms of discrimination are legitimate than to try to preempt them by claiming these are not cases of discrimination (and so not problematic) at all.

Posted by: matt | Sep 9, 2007 9:45:44 AM

Rick: Of course it's discrimination -- no scare quotes about it. The fact that the discrimination is "inherent in the enterprise" doesn't change that fact, for a church or for the Boy Scouts, or for any other employer. And when, as with many such employers, such discrimination is based on the idea that one's sexual proclivities and urges are sinful or (in the Boy Scouts') words, "dirty," that makes it invidious discrimination, in my humble opinion (not that any legal rules should necessarily turn on invidiousness). Of course, that doesn't mean there shouldn't be a religious exemption -- perhaps some employers should be allowed to engage in invidious discrimination, if that's how they understand their religious commitments. But discrimination -- painful, harmful, discrimination -- it most certainly is.

I dunno about the comparison of 6(a) to 702. I just assumed 6(a) was designed to track 702, but perhaps that's wrong -- a question worth pressing in Congress.

Where should the line be drawn? I truly don't know, and there's very little case law except a few rare cases, most prominently Gillette, suggesting that legislatures have a great deal of latitude about how to draw distinctions (absent sect discrimination). Both the policy and constitutional questions depend largely on (i) the *reason* the state is granting an exemption in the first place; and (ii) how big a hole it would blow in the overall protection that the antidiscrimination norm is designed to advance. I think this is a woefully underexamined niche of the First Amendment, as the Catholic Charities cases demonstrate.

Posted by: Marty Lederman | Sep 8, 2007 8:31:01 PM

Marty -- I understand that Title VII's exemption provision only applies to co-religionist preferences. I'm not sure, though -- that is, I genuinely don't know -- whether that exemption is available only to institutions that fit the description of "religious organizations" in 6(a). The discussion in the OLC opinion to which you linked (thanks for that) suggests to me that Section 702 is more generous than 6(a). Do you disagree?

Also, do you agree with Abe's reading of 6(a)-(c)?

In my view, the full exemption set out in 6(a) should not be limited to organizations that have "as [their] primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief." That said, I would not think that it must, or even should, be available to any enterprise or organization that happens to have a connection with a religious tradition or community. I am, I admit, struggling to find the right place to draw the line. But, I am inclined to want, say, Catholic Charities and parochial schools to be on the fully-exempt (and not merely on the ministerial-exception-eligible) side of the line. I take it you disagree? Best, R

Posted by: Rick Garnett | Sep 8, 2007 2:55:25 PM

Matt -- you asked about the scare-quotes I put around discrimination. In my view, it is not useful to think of what religious institutions do when they constitute and govern themselves in accord with their religious teachings as "discrimination." I suppose I think this, in part, because "discrimination", in most of our legal and political conversations, both denotes and connotes an unjustified selection, i.e., a selection of one person over another similar-in-all-relevant-respects person for a reason that is invidious or, at best, capricious. (Certainly, it is possible for religious institutions to "discriminate" in this sense. But, in my view, what a religious insititution does when it refuses, for example, to hire a nonbeliever as a minister is not, in a morally meaningful sense, "discrimination.") But, to make a selection in accordance with criteria that are inherent in the enterprise for which you are making the selection doesn't strike me as "discrimination." What do you think?

Posted by: Rick Garnett | Sep 8, 2007 2:39:53 PM

The way I read 6(c), it provides something entirely different from 6(a) and 6(b).

Religiously-affiliated institutions get the following exemptions from ENDA:

6(a) allows complete arbitrariness with respect to employees of religious-purpose institutions (Everyone who works churches, seminaries, etc. from the clergy to the janitors).

6(b) allows complete arbitrariness with respect to religious-function employees of other institutions (hospital chaplains, religion teachers at prep schools, etc.).

6(c) allows a less arbitrary form of discrimination with respect to all employees as long "similar" employees are treated similarly and in conformity to a pre-announced set of tenets, the content of which will be accepted without review and without application in other contexts.

That's just my guess, anyway.

Posted by: Abe Delnore | Sep 8, 2007 11:18:45 AM

Why is "discrimination" placed in scare-quotes in your last paragraph? Do you mean to imply that it's _not_ discrimination when a religious group decides to hire one set of people and not another? Or is it just that you think "discrimination" has come to have in all contexts a negative conotation and so since you think religious groups are justified in making the distinctions that they do that these distinctions should not be called "discrimination" since that would wrongly color them?

Posted by: Matt | Sep 7, 2007 4:38:45 PM

Rick: Let's assume that, instead of these specific exmeptions, the bill simply added the term "sexual orientation" to title VII itself. Well, in that case, there would be *no* religious-employer exemption for sexual-orientation discrimination, because the title VII exemption by its terms only covers coreligionist preferences. But ok, assume further that the title VII exemption were expanded to cover both coreligionsist preferences *and* discrimination against gays and lesbians. In that case, it would be pretty much exactly what's in 6(a). See pages 7-8 & n.13 of http://balkin.blogspot.com/olc.charitablechoice.pdf.

That leaves open the question of schools. Title VII has a separate exemption for religious schools (see note 11 of that OLC opinion), but it, too, is limited to coreligionist discrimination, and does *not,* for example, allow such schools to discriminate on the basis of sex or pregnancy, apart from what the ministerial exception requires (see pages 30-32).

In other words, under this ENDA language, religious employers would have *more* rights to discriminate against gays and lesbians than they do on the basis of all the other title VII criteria (save coreligionist preferences, which are of course reserved). I'm not sure whether Catholic Charities would be entitled to the title VII exemption. But if it is, then it will enjoy this exemption, too -- and therefore would be able to discriminate against gays in a way that it cannot discriminate against, say, women.

Posted by: Marty Lederman | Sep 7, 2007 4:25:41 PM

Hi Marty. In my view, 6(a) is too narrow because it applies only to religious organizations with a "primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief." This would not seem to cover, for example, a church-affiliated social-welfare organization (Catholic Charities, for example). It strikes me as imposing a certain narrow, privatizing vision of what religious institutions do and are about. As for 6(b), you are probably right, and I should confess error. Or, maybe my concern about 6(b) is really piggybacking on my concern about 6(a). If 6(a) were more generous, then the fact that 6(b) speaks only to people involved in specifically "religious" tasks would probably worry me less.

What do you think of 6(c)?

Posted by: Rick Garnett | Sep 7, 2007 3:46:27 PM

Rick: I'll have to think about 6(c). But why are 6(a) and (b) too narrow? As far as I can tell, 6(a) basically tracks the title VII exemption -- indeed, because it allows sexual-orientation discrimination by the exempted employers, it goes well beyond title VII (under which the exemption only applies to *coreligionist* preferences, and does not, e.g., exempt race and sex discrimination). And section 6(b), it seems, is an attempt to codify the ministerial exemption, which would apply as a constitutional matter, anyway. So if *these* are too narrow, that would mean that the title VII exemptions are *far* too narrow. Which would be an odd proposition.

Posted by: Marty Lederman | Sep 7, 2007 3:04:32 PM

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