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Religious Employment and Title VII: Part 5—Common Objections to a Textualist Reading of Title VII's Religious Employer Exemption

Common objections to a textualist reading of Section 702 are unpersuasive.

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In this final installment of our series on religious employment under Title VII, we address common objections to the textualist interpretation we describe in our BYU Law Review article. Each objection fails because it ignores Section 702's text or conflates statutory exemptions with constitutional doctrines. We conclude by expressing appreciation for Congress's handiwork—a statute that pursues equality and liberty together.

Racial Discrimination

Critics object that a textualist interpretation of Section 702 would open the door to racial discrimination. Not so.

Section 702 exempts a religious employer from Title VII only when it selects an employee "of a particular religion," a phrase that encompasses religious observances, practices, and beliefs. Adverse employment decisions for other reasons fall outside of Section 702. It follows that Section 702 permits discrimination only if differential treatment is founded in sincere religious observances, practices, or beliefs. And even critics of a textualist interpretation concede that racism is virtually unknown in modern American religious practice.

Bob Jones University v. United States is the best-known case of religiously motivated racism. There, the Supreme Court affirmed an IRS ruling withdrawing the University's tax-exempt status because of its ban on interracial dating and related policies. "Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy." But Bob Jones University involved tax-exempt status, not employment discrimination. If anything, it illustrates judicial intolerance for religiously motivated racial classifications.

It is highly unlikely that the Supreme Court would endorse Section 702 as a defense if a religious organization engaged in racial discrimination. Burwell v. Hobby Lobby Stores, Inc. noted that "[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." If Title VII's bar on racial discrimination satisfies strict scrutiny, Section 702 surely does not exempt a religious organization that crosses the line.

LGBT Equality Claims

Detractors claim that a textualist interpretation of Section 702 allows discrimination against LGBT employees. That criticism misconceives Title VII as an unqualified guarantee of employment nondiscrimination for protected classes. It is not. As our article explains, "Protected classes are guaranteed equal employment opportunity insofar as the statute prescribes it." An LGBT claimant can no more demand that a religious employer disregard its religious employment standards than a small business employee can bring a viable Title VII claim despite the statute's 15-employer threshold.

Disregarding Section 702's text also flouts Bostock—a textualist opinion that stressed, "judges are not free to overlook plain statutory commands."

Besides, reading Bostock as a flat rule of LGBT equality disregards Bostock's express commitment to "preserving the promise of the free exercise of religion enshrined in our Constitution." While acknowledging concerns about "how Title VII may intersect with religious liberties," the Court did not address those concerns in Bostock because none of the employers there was a religious organization.

The Establishment Clause and Third-Party Harm

Another objection to a textualist reading of Section 702 is that it violates the Establishment Clause by granting "a privilege to those who engage in the accommodated practice at the expense of unbelievers and other nonadherents who do not." But this third-party harm argument finds no support in the "historical practices and understandings" that Kennedy v. Bremerton School District establishes as the governing baseline for Establishment Clause challenges. Statutory accommodations for religion predate the Founding. The argument also collides with Corporation of Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, where the Court held that Section 702 does not violate the Establishment Clause. First principles and precedent alike render this argument untenable.

Section 702 and the Ministerial Exception

Critics also contend that giving Section 702 its textual meaning unfairly allows religious employers to treat all employees as if they were covered by the ministerial exception. That objection is faulty, too.

The ministerial exception is the First Amendment doctrine giving a religious organization the absolute privilege of dismissing a minister free of legal sanction. A church can remove a minister for any reason at all. That distinguishes the exception from Section 702. It exempts a religious employer only when it chooses an employee for reasons of religious fit—congruence between the employer's and employee's religious observances, practices, and beliefs. Reading Section 702 in light of the ministerial exception is a category error. Statutory provisions and constitutional doctrines operate independently. Section 702 reflects Congress's decision to protect religious employers by using the same Commerce Clause authority under which the Civil Rights Act was adopted.

Conclusion

None of these objections undermines our textualist interpretation of Section 702. Its text removes any doubt that the exemption authorizes a religious employer to choose employees who fit the employer's religion—even if that results in unequal treatment of protected classes. Such inequality is the unavoidable consequence of protecting religious employment as an exercise of religion.

Viewing Section 702's textualist meaning from the perspective of classical tensions between liberty and equality reminds us that in crafting the Civil Rights Act, Congress did not choose between liberty and equality—it safeguarded both.