The Volokh Conspiracy
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Religious Hiring and Expressive Association
Does the First Amendment freedom of expressive association protect religious hiring?
Thanks to Eugene for inviting me to guest-blog about my forthcoming article, Religious Hiring Beyond the Ministerial Exception. My first post laid out how appellate courts are grappling with an important question that will likely reach the Supreme Court soon: What legal protections do religious groups have when they fire a non-minister (like a secretary or janitor) for rejecting the group's religious teachings on sex or marriage? I then explored two potential protections: Title VII's religious exemption and the First Amendment's church-autonomy doctrine.
Today I'll argue that a different First Amendment protection—the right of expressive association—also protects religious hiring by religious groups.
What Is Expressive Association?
Unlike the church-autonomy doctrine, the right of expressive association is not rooted in the Religion Clauses; it is rooted in the Speech Clause (or, as some cogently argue, the Assembly Clause). The basic idea is that freedom of speech necessarily entails the right to gather with others—to associate—to engage in speech. The right of expressive association, then, protects the right to associate with others (or not to associate) for expressive purposes.
The leading case is Boy Scouts v. Dale. There, the Boy Scouts dismissed a scoutmaster for being a "gay rights activist," and the scoutmaster sued, alleging his dismissal was illegal sexual-orientation discrimination. But the Supreme Court rejected his claim, explaining that the First Amendment freedom to associate "presupposes a freedom not to associate," and that requiring the Scouts to retain the scoutmaster would unconstitutionally "force the [Scouts] to send a message … that [it] accepts homosexual conduct as a legitimate form of behavior."
Dale requires courts to address two questions when considering an expressive-association defense: (1) whether the group "engage[s] in some form of expression," and (2) "whether the forced inclusion" of the individual "would significantly affect the [group's] ability to advocate public or private viewpoints." And if the answer to both questions is yes, the First Amendment prohibits the forced association, absent proof that the forced association satisfies strict scrutiny—i.e., serves "compelling state interests" that cannot be achieved through "significantly less restrictive" means.
Expressive Association for Religious Groups
Dale provides a strong framework for protecting religious groups. Suppose, for example, a religious school dismisses its math teacher for entering a same-sex marriage. Under Dale's first prong, a religious school, of course, "engage[s] in some form of expression": teaching and propagating a religious faith, including (often) views on marriage.
Second, forcing a religious school to employ a teacher who violates its view of marriage would "significantly affect the [school's] ability" to instill that view in its students. As the Second Circuit explained: "'It would be difficult,' to say the least, for an organization 'to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time it must accept members who engage in that conduct."
Another Second Circuit panel tried to cut back on this ruling, suggesting that forcing religious groups to hire dissenters doesn't significantly inhibit their expression unless propagating a particular viewpoint is the "very mission" of the organization. But this argument stands in tension with Dale. There, opposing homosexuality wasn't the "very mission" of the Boy Scouts; indeed, the Boy Scouts' "central tenets" arguably did not "say[] the slightest thing about homosexuality." Yet the Court held that "associations do not have to associate for the 'purpose' of disseminating a certain message in order to be entitled to the protections of the First Amendment." Instead, courts must "give deference" to an association's view of "the nature of its expression" and "what would impair [that] expression."
Under Dale, then, our hypothetical teacher's employment-discrimination claim would likely be barred unless it satisfied strict scrutiny.
Counterarguments
Some courts have ruled that forcing religious groups to employ dissenters does satisfy strict scrutiny—that it advances a compelling interest in eradicating discrimination, and there is no less-restrictive means of accomplishing this interest absent forced association.
But this argument faces several hurdles. First, it contradicts the strict-scrutiny analysis in Dale. There, the Court likewise considered if the government's interest in eliminating discrimination was sufficiently compelling to justify forced association with the scoutmaster. And it rejected the strict-scrutiny defense. The Court said that however "compelling" the government's "interest in eliminating discrimination" based on "sexual orientation," that interest "d[id] not justify such a severe intrusion on … freedom of expressive association." So too with religious groups.
Second, to satisfy strict scrutiny, it is not enough to assert a "broadly formulated" interest in "ensuring equal treatment" based on sexual orientation. Instead, the government must show a specific, compelling interest in denying a religious exemption to "particular religious claimants." The Supreme Court has never found this standard satisfied when a religious claimant has sought an exemption from a sexual-orientation discrimination law. Rather, all five cases presenting the issue (Hurley, Dale, Masterpiece, Fulton, and 303 Creative) came out in favor of a religious exemption.
Third, Title VII's ban on sex discrimination is particularly unlikely to satisfy this analysis, because it is shot through with other exemptions. Most notably, among others, it includes an exemption for every employer with fewer than fifteen employees—which exempts approximately 80% of all private employers nationwide, employing tens of millions of Americans. The government cannot have a compelling interest in forcing religious groups to hire religious dissenters, when it allows millions of secular businesses to discriminate for any reason with impunity.
Given the shaky strict-scrutiny defense, some courts have floated another idea: the right of expressive association doesn't apply to employment disputes at all. But this argument fails as a matter of both precedent and principle.
The leading precedent invoked for this argument is Hishon v. King & Spalding, which held that a large law firm lacked an expressive-association right to exclude women from partnership. But Hishon doesn't say expressive association is categorically inapplicable to employment disputes. Rather, Hishon addressed and rejected an expressive-association defense on the merits, reasoning that the large law firm there had not shown "how its ability" to express "ideas and beliefs" would be "inhibited" by letting a woman make partner. If anything, that suggests employers that can make such a showing would be protected—and many lower courts since Hishon have so held.
Nor would excluding employment from the right of expressive association make sense as a matter of constitutional principle. The Supreme Court routinely applies First Amendment defenses to employment relationships and other commercial disputes—e.g., the ministerial exception applies to employment suits by ministers; church autonomy applies to collective bargaining over employment in religious schools; the Free Exercise Clause applies to antidiscrimination lawsuits against for-profit businesses; the Free Speech Clause applies to antidiscrimination lawsuits against commercial web designers, the sale of violent video games to minors, and the placement of paid, commercial ads in newspapers. There is no reason that expressive association, alone among First Amendment rights, would be categorically inapplicable to employment.
Conclusion
In short, expressive association offers another potential defense for religiously motivated hiring practices. Under Dale, the defense turns primarily on whether a religious group "engage[s] in some form of expression," and whether forced inclusion of a religious dissenter "would significantly affect the [group's] ability to advocate public or private viewpoints." And many religious groups will be able to make that showing—particularly given Dale's admonition that courts must "give deference" to an association's view of "the nature of its expression" and "what would impair [that] expression."
With several potential defenses available, however, how should courts handle these claims? Should one defense be preferred over others? If so, which one and why? Tomorrow's post (the final one!) will attempt to sketch out an answer to these questions.
