Religious Employment and Title VII: Part 2—Reading the Exemption Textually

A textualist interpretation of Section 702 shows that the exemption applies when a religious employer confines employment to people who fit the employer's religious observances, practices, and beliefs.

In this second post summarizing our new article, we explain how textualism offers a compelling interpretive lens for reading the religious employer exemption of Title VII. Besides revealing the liberty-equality tensions discussed in Part 1, a close reading of Section 702's text vividly reveals the exemption's meaning and scope.

Here is Section 702's relevant language:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Notice the opening phrase, "This subchapter shall not apply." Subchapter denotes Title VII and shall expresses a mandate.

Section 702 covers a "religious corporation, association, educational institution, or society." Title VII does not define these terms, but each had an established usage when Congress adopted the statute. Our article concludes that the exemption applies to a wide range of religious organizations—from churches and synagogues to religious schools to soup kitchens and other faith-based organizations.

Next, Section 702 applies when a religious organization's employees "perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." The term activities is unqualified by design. Originally, Title VII limited the exemption to employees who carry out "religious activities," but that qualification was later struck by a 1972 amendment. Section 702 covers all employees of a religious organization, regardless of whether they are engaged in religious activities.

We come to the decisive phrase. Section 702 applies "with respect to the employment of individuals of a particular religion." Each word matters.

Employment denotes the entire range of activities comprising the employment relationship, as contemporaneous dictionaries of the period explain.

Religion carries a special definition that applies throughout Title VII. "The term 'religion' includes all aspects of religious observance and practice, as well as belief." The breadth of this definition rebuts any suggestion that Title VII treats religion solely as a matter of religious belief. Both observance and practice denote religious conduct, and their syntactic placement at the beginning of the definition emphasizes them.

Confusion about Section 702's applicability dissolves when religion is understood to "include[] all aspects of religious observance and practice, as well as belief." The key interpretive move is to incorporate Title VII's definition of religion into the phrase "of a particular religion." Read in this way, Section 702 applies when a religious employer decides whether an "individual" is "of" that employer's "particular religion"—a determination that encompasses religious observance, practice, and belief.

This does not mean that a religious employer has carte blanche to discriminate. Permission to make decisions "with respect to the employment of individuals of a particular religion" does not imply permission to make employment decisions on non-religious grounds. Where such decisions arise from non-religious considerations, such as personal bias, they fall outside the exemption. Title VII applies.

Textualism thus reveals Section 702 as an oasis of religious liberty. Churches and other religious organizations are free to choose employees who are compatible with the employer's religious mission—and dismiss those who are not.

Reading Section 702 as a refuge for religious liberty is consistent with our insight that Congress structured Title VII not as a uniformly equality-enhancing provision, but as a complex series of trade-offs reflecting fundamental tensions between liberty and equality. Nor should this be surprising. Religious employers are no less vital to American life than small businesses. Title VII rightly safeguards both.

In our next post, we will explain how our textualist reading solves a long-running circuit split.

Comments

[Josh R]

Cutting to the chase, are you arguing that Title VII permits a religious organization to fire a janitor because 1) he is gay, 2) dates a person of another race, or 3) is a women because the organization has a sincere religious belief that 1) homosexual conduct is immoral, 2) the races should not mix, and 3) women should not work outside the home?

[Longtobefree]

"because the organization has a sincere religious belief that 1) homosexual conduct is immoral, 2) the races should not mix, and 3) women should not work outside the home?"

1) True

2) False; Acts 8
27 And he arose and went: and, behold, a man of Ethiopia, an eunuch of great authority under Candace queen of the Ethiopians, who had the charge of all her treasure, and had come to Jerusalem for to worship,
28 Was returning, and sitting in his chariot read Esaias the prophet.
29 Then the Spirit said unto Philip, Go near, and join thyself to this chariot.
30 And Philip ran thither to him, and heard him read the prophet Esaias, and said, Understandest thou what thou readest?
Matthew 28
18 And Jesus came and spake unto them, saying, All power is given unto me in heaven and in earth.
19 Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost:
20 Teaching them to observe all things whatsoever I have commanded you: and, lo, I am with you always, even unto the end of the world. Amen.

3) False; Acts 16
13 On the Sabbath day we went outside the city gate by the river, where we thought there was a place of prayer. We sat down and spoke to the women gathered there. 14 A woman named Lydia, a dealer in purple cloth from the city of Thyatira, who worshiped God, was listening. The Lord opened her heart to pay attention to what was spoken by Paul. 15 After she and her household were baptized, she urged us, “If you consider me a believer in the Lord, come and stay at my house.” And she persuaded us.

There are other verses - -many web sites have several translatins of the Bible if you want to do research.

[Josh R]

Your view of Scripture makes no difference to the legal analysis. My hypos assume the employer does not agree with you and it is only his view of Scripture (which is not limited to the Bible) that matters.

[DragonCommentor]

There's been a years-long movement to push this interpretation of Title VII's religious carveout. But I've never quite understood it as a textual matter. Some of the analysis seems sound - most prominently, the authors (and Judge Easterbrook, who has endorsed the authors' reading) appear to be correct that the broad definition of "religion" from 2000e(j) applies to the full subchapter of Title VII, including 2000e-1(a) (where the religious employer carveout is located).

That leads to what I agree is the key text here: that certain organizations (tabling the issue of who counts as a "religious corporation, association, educational institution, or society") may discriminate "with respect to the employment of individuals of a particular religion." But doesn't the phrase "individuals of a particular religion" focus on the "particular religion" the *employees,* not the *employer*? Those are the "individuals" contemplated by the sentence, are they not? If that's so, then the words "that employer's" in the following sentence taken from the post are inaccurate: "Read in this way, Section 702 applies when a religious employer decides whether an 'individual' is 'of' that employer's 'particular religion'—a determination that encompasses religious observance, practice, and belief." (It is revealing, perhaps, that those words appear in a key part of the sentence in the post but are not taken from the statutory text.)

If it is right that what 2000e-1(a) focuses on is the *employee's* religion, that would seem to have implications for the breadth of the religious exception. Covered organizations could discriminate against an employee regarding any aspect of that employee's religion, which includes "all aspects of religious observance and practice, as well as belief." So a Christian organization could discriminate against a Jewish employee, or against a Christian employee who holds a religious view or engages in a religious practice inconsistent with the organization's views and practices. But it doesn't seem like such an organization could discriminate against an employee for that employee's *non-religious* observances, practices, or beliefs. (I realize there is a minor textual ambiguity here of whether the word "religious" in "all aspects of religious observance and practice, as well as belief" modifies the words "practice" and "belief." I think that given the context--namely, that religion is what's being defined--the answer is likely yes, although others may want to look at a canon or two.) Crucially for real-world Title VII debates, on this reading, a religious organization could not discriminate against a gay person for being gay (or doing gay things) so long as those beliefs & practices were not undertaken for religious reasons.

Anyway, interested to hear what others think, and maybe I'm missing something obvious. But I've never quite gotten this.

[Josh R]

The article only claims that "the employer may legitimately measure its employees’ religious observances, practices, and beliefs by the employer’s own." So, it would appear they agree you cannot reach the employee's non-religious conduct and beliefs.

If a gay religious person marries does that mean his religious belief is homosexuality is not immoral and he can be fired? What if the person is not religious and his belief is strictly secular?

Hopefully the authors will respond as this thread proceeds to actual cases and hypos.