The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Guest-Blogging on "Religious Employment and the Tensions Between Liberty and Equality"
I'm delighted to report that R. Shawn Gunnarson, James Phillips, and Christopher Bates will be guest-blogging this coming week on this article that they just published in the BYU Law Review; here's the Abstract:
Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute's text says otherwise.
This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title VII reveals the statute in a new light. The text reveals Title VII as a complex piece of legislation that preserves areas of employer liberty and autonomy, even as it guarantees greater employee equality.
Viewing the structure of Title VII from the perspective of tensions between liberty and equality—a familiar theme in classical liberal theory—makes sense of Congress's decision to protect liberty for small and tribal-related businesses, bona fide occupational qualifications, and other employers, even while removing barriers to employment opportunity elsewhere. That same perspective explains why Congress adopted an exemption for religious employers to shield them from the consequences of an unqualified egalitarian framework.
A textualist reading of the exemption shows that a religious employer is authorized to make employment decisions based on religious criteria, free from any obligation under Title VII—but not to make employment decisions for non-religious reasons that the statute forbids. By articulating the exemption's best reading, our approach holds the key to resolving a long-running circuit split along with several persistent questions and objections. In sum, this article is the first to demonstrate that a textualist reading of the religious employer exemption reveals Title VII as not merely an equality statute nor a liberty statute.
I'm much looking forward to their posts.
