Religious Employment and Title VII: Part 4—Avoiding Serious Constitutional Problems

Rejecting a textualist reading of Section 702 in favor of a cramped co-religionist privilege would raise serious First Amendment objections.

In this fourth post on our recently published article, we explain how a textualist reading of Section 702 avoids serious constitutional questions under Title VII.

Church Autonomy

The First Amendment Religion Clauses guarantee a religious organization autonomy "with respect to internal management decisions that are essential to the institution's central mission." Included within that autonomy are decisions about who will lead the organization, the shape of its religious beliefs, how to resolve internal religious disputes, and how the organization operates.

A corollary of the church autonomy doctrine is the ministerial exception. It categorically protects a religious organization against a claim of employment discrimination when the claimant is a "minister," meaning a religious leader or one who is entrusted with transmitting the faith.

Some might argue that a religious organization's freedom to make religiously driven employment decisions ends with the ministerial exception. We argue that's wrong. And earlier this month, the Ninth Circuit agreed, holding in Union Gospel Mission of Yakima, Washington v. Brown that the church autonomy doctrine protects a religious organization's freedom to hire non-ministerial employees who are aligned with the employer's faith.

Reading Section 702 as a bare co-religionist privilege would spark substantial questions about Title VII's compatibility with the church autonomy doctrine. To pick one example, a Catholic organization could be liable for choosing a candidate for a key position from among its all-male priesthood. Results like that would interfere with the core of church autonomy—a church or faith-based organization's "internal management decisions that are essential to the institution's central mission."

Title VII could then be on a collision course with the First Amendment. A textualist reading of Section 702 avoids that problem by allowing religious employers to make religious judgments about employment while holding them accountable for employment decisions that discriminate for non-religious reasons.

Establishment Clause

The Supreme Court has long recognized that the Establishment Clause precludes laws that create "excessive entanglement" between government and religion. Entanglement refers to government oversight or monitoring of a religious institution's internal decision-making and operations. The Court reaffirmed its commitment to the principle of non-entanglement in Our Lady of Guadalupe School v. Morrissey-Berru, and its historical pedigree goes back to the Founding.

Interpreting Section 702 as a co-religionist privilege would invite excessive government entanglement. Overriding a church's dismissal of an employee who's misaligned with religious employment criteria exposes a religious institution to the intrusive processes of civil litigation, including liability under Title VII, for its religious judgment about an employee.

By contrast, a textualist interpretation of Section 702 avoids entanglement. A court then asks only whether a disputed employment action was taken because of the employer's judgment that an employee's religious belief and conduct are inconsistent with the employer's religion. A court need not adjudicate the content of religious employment standards or the religious organization's mode of implementing them.

Free Exercise Clause

Interpreting Section 702 as a narrow co-religionist privilege also creates conflicts with the Free Exercise Clause. When federal law pressures religious employers to modify religious employment standards, or discourages them from exercising their religion through personnel appointments, it burdens their religious exercise. So, too, when federal law pressures a religious employer to tolerate employee behavior contrary to the employer's religious standards.

Deciding which constitutional standard applies is not obvious. Employees would reach for the lax standard of Employment Division, Department of Human Resources of Oregon v. Smith. There, the Supreme Court held that when a law substantially burdens the exercise of religion, rational basis rather than strict scrutiny is the standard if the law is neutral and generally applicable. Yet the unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC suggests otherwise. There, the Court refused to apply Smith when an employment dispute involved a discrimination claim by a former minister. Hosanna-Tabor suggests that Smith might not control if an employment dispute involves a religious organization's judgment regarding those best suited to pursue the employer's religious mission.

Suppose that Section 702 is ineffective and Smith does apply. An employment discrimination claim against a religious organization must survive strict scrutiny because Title VII probably is not a neutral law of general applicability. The statute's exclusions and exemptions for secular interests render Title VII less than generally applicable. Treating Section 702 as a co-religionist privilege exposes religious organizations to greater liability than private clubs and small businesses. No one doubts that excluding these employers undermines Congress's aim of eradicating employment discrimination.

A textualist reading of Section 702 avoids the clash between Title VII and the Free Exercise Clause. Burdens on religious exercise are avoided or mitigated by allowing a religious organization freedom to make employment decisions based on religious observance, practice, and belief. On this understanding, Title VII works in harmony with the First Amendment.

Freedom of Association

Finally, a textualist interpretation of Section 702 avoids questions that the co-religionist interpretation provokes concerning a religious organization's right to expressive association.

The First Amendment guarantees the freedom to "associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Government transgresses this right by "intru[ding] into the internal structure or affairs of an association" by "forc[ing] the group to accept members it does not desire." Such compulsion "may impair the ability of the group to express those views, and only those views, that it intends to express." Compelling an expressive association to include an unwanted member violates the Constitution by "affect[ing] in a significant way the group's ability to advocate public or private viewpoints."

Churches, charities, and other religious organizations are textbook expressive associations. When a religious employer is forced to choose or retain an employee who disregards the employer's religious tenets, the presence of that employee within the organization undermines the employer's message that those tenets deserve personal fidelity. As with the Free Exercise Clause, the narrow co-religionist reading of Section 702 clashes with the right of free association.

The textualist interpretation of Section 702 avoids that conflict. It protects a religious organization's ability to maintain the integrity of its internal and external messaging by limiting employment to individuals who actually live by the employer's religion.

The next post concludes our series by explaining why a textualist interpretation of Section 702 overcomes common objections.