The First Amendment protects the free exercise of religion and prohibits governmental establishment of religion, a concept that includes a prohibition on excessive government entanglement with religion. Accordingly, the Constitution prohibits the government from interfering in the hiring and firing of ‘‘ministerial’’ church employees, including clergy and religion teachers at church-sponsored schools.1 However, courts have held that antidiscrimination laws can still regulate the employment of teachers of secular subjects in religious schools.
One such teacher, Linda Hoskinson, felt a calling to teach in Christian schools so she ‘‘could interpret her lessons with feelings [sic] from the Bible.’’2 She found employment as a grade school instructor at Dayton Christian Schools, an affiliate of two of Dayton, Ohio’s strict fundamentalist churches.3 DCS sought to employ only teachers who would ‘‘carry with them into their classes the religious fervor and conviction felt necessary to stimulate young minds into accepting Christ as savior.’’ Hoskinson seemed to have found her niche. Eventually, however, church doctrine and Hoskinson’s personal life came into conflict. When Hoskinson informed the DCS administration that she and her husband were expecting a baby, she was told that her contract would not be renewed. The school’s sponsoring churches believe that mothers of young children should not be employed outside of the home, so continuing to employ Hoskinson would flout church doctrine.4
Hoskinson consulted an attorney, who informed DCS that it was violating Hoskinson’s rights under federal and state antidiscrimination laws, even though DCS had accepted no government funding. DCS responded by immediately firing Hoskinson for violating the ‘‘Biblical Chain of Command,’’5 a belief adhered to by some Christian sects, including DCS’s sponsors, that all disputes among members of the church should be resolved within the church. Like all DCS employees, Hoskinson had agreed in her contract to abide by the Biblical Chain of Command, but had broken that agreement when she took her problems with church policy to an outside lawyer.6
Hoskinson filed a sex discrimination complaint with the Ohio Civil Rights Commission.7 The Commission investigated, and urged DCS to sign a settlement agreement that stipulated, among other things, that contrary to DCS’s belief in resolving disputes within the church, DCS ‘‘shall make clear in its employment contracts that employees may contact the Commission if they believe they are being discriminated against at any time.’’
When DCS received the proposed agreement, it filed a suit in federal court asking that the court protect DCS’s free exercise of religion by prohibiting the Commission from investigating and prosecuting the school. Joining DCS as plaintiffs were the two sponsoring churches, DCS officials, two parents who alleged that the investigation and potential prosecution of DCS ‘‘burdens and endangers the ability of parents to choose a religious education for the children,’’ and a teacher who charged that the investigation ‘‘endangers the opportunity of religious teachers and administrators to carry out their religious vocation in the Christian formation and education of young people.’’8
The court rejected DCS’s free exercise claim, reasoning that the Commission’s enforcement of Ohio’s antidiscrimination law placed only ‘‘a minimal burden’’ on the plaintiffs’ free exercise rights. No mothers with young children would be forced to work; DCS needed only to refrain from firing Hoskinson. The court did not address the plaintiffs’ claim that by forcing DCS to employ a teacher who disobeyed church teachings, the law threatened the plaintiffs’ ability to impress upon the students the importance of church doctrine. Although the court downplayed the importance of the case to the plaintiffs, it found that the state had a compelling interest in eliminating ‘‘all forms of discrimination,’’ and in preventing young people from being educated ‘‘in an atmosphere of discrimination.’’
An appeals court reversed the lower court decision, finding that the Commission’s investigation violated the plaintiffs’ free exercise rights, and that those rights were not trumped by the government’s interest in eradicating discrimination.9 The Commission appealed to the Supreme Court. Although religious groups filed briefs uniformly supporting DCS, the case divided liberal civil libertarian organizations. The American Civil Liberties Union sided with the Commission, while Americans United for the Separation of Church and State supported the school’s position. ‘‘We are firmly opposed to discrimination,’’ AUSCS executive director Robert Maddox said, ‘‘but this principle must not override the right of churches or church schools to hire the pastors or teachers they believe can best teach their faith.’’10 The Supreme Court ultimately sidestepped the civil liberties issue by reversing the appeals court on the grounds that the federal courts should not have interfered in ongoing state proceedings.11
Finally, after DCS had spent more than $100,000 defending itself, Hoskinson dropped her lawsuit. Hoskinson, who in the meantime had given birth to three children, and who had not returned to teaching, was unapologetic. She said, ‘‘If a person who is in a religious institution cannot have the protection of the law, then I think we’re in for some serious problems, because if they don’t have the protection of the law, there’s going to be a vacuum there they’re just sucked into.’’12 Recall, however, that Hoskinson had not been ‘‘sucked into’’ teaching in a school that taught and enforced conservative Christian values, but had actively sought out such an environment.
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Other Christian schools have run afoul of antidiscrimination laws by trying to enforce religious doctrines that guide personal morality. In a virtual replay of the DCS case, the Michigan Supreme Court held that the government’s compelling interest in eradicating discrimination trumped the Providence Christian School’s claim of a free exercise right to refuse employment to female teachers with young children.13 Other cases have involved religious schools firing teachers who became pregnant out of wedlock—such pregnancy being compelling evidence of a violation of the schools’ religious conviction against premarital intercourse. In these cases, courts agreed that religious schools’ ‘‘[r]estrictions on pregnancy are not permitted because they are gender discriminatory by definition.’’14 In other words, the schools were discriminating by not firing any unmarried pregnant males! The more plausible legal defense for a school that fired an unmarried pregnant teacher would be to somehow persuade the jury that it would also have fired a male teacher who was discovered to have had sex outside of marriage, as this would be evidence of evenhanded treatment. But only a brave (or perhaps foolish) school administrator would risk his school’s fiscal health on its attorneys’ ability to prove this sort of counterfactual to a jury’s satisfaction. The legal standard enunciated by the courts, then, would likely discourage most schools from enforcing their anti-fornication policies.
The standard itself makes little sense. Courts failed to consider that schools might reasonably choose to distinguish between a visibly pregnant female teacher and a male teacher whose fornication has come to the attention of a school’s administration but not to the attention of his students. Christian educators could reasonably believe that sins by teachers that remain private can be overlooked, but employing a sinner whose transgressions have become public sends the wrong signal to students. As one Christian education manual states, teachers are expected to be role models. One such manual advises that students ‘‘should see in their teachers the Christian attitude and behavior that is often so conspicuously absent from the secular atmosphere in which they live. Without this witness, living in such an atmosphere, they may begin to regard Christian behavior as an impossible ideal.’’15 One court stated that if a school was concerned with the effect a teacher’s visible pregnancy might have on impressionable high school students, it should have granted her a paid leave of absence during the term of her pregnancy. To fire her for getting pregnant, the court said, was ‘‘inviting a sex discrimination lawsuit.’’16 Where the typical financially overex-tended church school might find the money to finance a teacher’s paid leave of absence, the court did not say.
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Like their elementary and secondary school counterparts, religious universities have also been subjected to antidiscrimination claims when they tried to enforce their religious traditions. In the mid-1980s, Georgetown University, a Jesuit school in Washington, D.C., refused to extend ‘‘university recognition’’ to two gay student groups. Without university recognition, the groups could not get university funding and were not entitled to office space or a mailbox on campus. University recognition required the approval of the university’s administration and was available only to organizations that were likely to be ‘‘successful in aiding the university’s educational mission in the tradition established by its founders.’’ Although the university permitted the gay groups to meet on university property and to invite guest speakers, the groups were not eligible for university recognition because they flouted Catholic beliefs about sexual ethics.
The groups sued the university for violating the Washington, D.C., Human Rights Act’s ban on discrimination against gays.17 The D.C. Court of Appeals acknowledged that a religious organization such as Georgetown could not be compelled to endorse a student group that encouraged or accepted homosexuality. However, the court found that D.C. law did not require Georgetown to actually endorse or accept the goals of the gay student groups, but merely to extend the same benefits to them that it offered to other student groups. Although D.C. had a compelling interest in eradicating discrimination against gays, the court said, the Act imposed a relatively minor burden on Georgetown’s exercise of religion. The court reasoned that the university already provided limited benefits to the gay groups. The additional tangible benefits that would flow from university recognition were ‘‘relatively insignificant.’’ Ironically, the fact that Georgetown was generally tolerant of its gay students apparently meant that it received less constitutional protection than would have been granted to a virulently antigay school—a perverse message from a court delivering a lecture on the importance of not discriminating.
Disturbed by the court’s ruling, Congress added an exemption for religious organizations to D.C.’s ban on discrimination against gays.18 But by this time, Georgetown had been so beaten down by a barrage of negative publicity it had received that it had lost the will to defend its restrictions on gay student groups. The university soon modified its rules, allowing any ‘‘nonpolitical’’ student group, including Georgetown’s gay organizations, to receive funding and office space.19
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South Carolina’s Bob Jones University, which is famously sponsored by a strict fundamentalist Christian sect, screens its students for their religious beliefs to ensure compatibility with the school’s mission, and the university requires all students to conform to a stringent code of conduct. Until 1971, the university excluded African American students. In 1971, the school, under pressure from federal civil rights authorities, began admitting married African American students. Following a 1975 court ruling requiring private colleges to admit African Americans, the university began admitting unmarried African American students as well. The university, however, contemporaneously banned interracial dating on penalty of expulsion. The university’s founders claimed that the policy stemmed from a belief that the Bible prohibits interracial marriage, but others suspected that such explanations were merely a weak pretext for racial discrimination.20 And then the tax man got involved.
The Internal Revenue Service revoked Bob Jones’ tax-exempt status when it concluded that the university’s ban on interracial dating constituted discrimination in violation of public policy. The university sued, alleging that because the university was theologically opposed to interracial marriage, the IRS revocation infringed on the university’s free exercise of religion. The case reached the Supreme Court, which acknowledged that IRS denial of tax benefits to universities that discriminated on religious grounds would ‘‘inevitably have a substantial impact on the operation of private religious schools.’’21 However, the Court held that this IRS policy was constitutionally permissible because the burden on universities was substantially outweighed by the government’s ‘‘fundamental, overriding interest in eradicating racial discrimination in education.’’
There are legitimate grounds on which to justify the Court’s decision in the Bob Jones case, but claiming that statutory antidiscrimination goals have a higher constitutional status than the First Amendment’s protection of free exercise of religion, as the Court did in its opinion, is not one of them. Rather, given the university’s historic discrimination against African Americans, the Court could reasonably have questioned the sincerity of the university’s religious rationale for banning interracial dating.22 Indeed, the university abruptly gave up its purportedly ‘‘sincere religious belief’’ in banning interracial dating in 2000, after the university came under withering criticism following a visit by presidential candidate George W. Bush. Facing a loss of credibility, and possibly revenue, the university suddenly discovered that its ban on interracial dating was not theologically required, after all.23
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Exactly how autonomous religious organizations should be from antidiscrimination laws has been a controversial question for decades. When it considered the 1964 Civil Rights Act, Congress debated how to deal with the potential conflicts with religious freedom that could arise under the act. Congress ultimately decided to exempt religious organizations from Title VII’s prohibition against discrimination in employment, but only under narrow circumstances: when the discrimination is based on religion and the organization is engaging in religious activities.24 A 1972 amendment to the Civil Rights Act broadened this exemption so that it applied to religious organizations even when they were engaged in nonreligious activities.25
The Supreme Court upheld this provision against an Establishment Clause challenge in a case involving an employee of a Mormon church-owned gymnasium who was fired for failing to abide by church doctrine.26 The employee claimed that his dismissal constituted discrimination on the basis of religion, and that the religious organization exemption was an unconstitutional establishment of religion. The Court disagreed, finding that the exemption was an appropriate accommodation of religion by the government, not an illicit endorsement of religion.
Title VII’s religious exemption remains limited in scope. Most courts, for example, have held that engaging in sex discrimination— even for religious reasons as in the DCS case—is not covered by the exemption. Courts consistently reject arguments from church defendants that they fired female employees who violated church doctrine over such issues as childbearing and child-rearing not because the employees were women, but because they had strayed from the church’s religious teachings. Meanwhile, some states’ employment discrimination laws, which are enforced on top of federal law, grant no religious exemptions at all.27
For many years, religious organizations and, to a lesser extent, individuals sought shelter from the mandates of antidiscrimination laws by relying on the free exercise clause of the First Amendment, as interpreted in the 1963 case of Sherbert v. Verner .28 In Sherbert , the Supreme Court dealt with the issue of generally applicable laws, such as antidiscrimination laws, that only incidentally interfere with the free exercise of religion. The Court held that free exercise rights trump such laws, unless the law in question serves a ‘‘compelling governmental interest.’’ In practice, this seemingly strict test was subsequently enforced so laxly that it provided religious organizations minimal protection from antidiscrimination laws.29 In 1990, the Supreme Court abandoned the compelling interest test, ruling instead that a generally applicable law that incidentally interferes with the free exercise of religion does not violate free exercise rights.30 Religious groups now receive no effective federal constitutional free exercise protection from antidiscrimination laws.
Religious organizations can, however, look elsewhere for protection. The Religious Freedom Restoration Act,31 passed by Congress in 1993, revived the compelling interest test that had been nixed for constitutional purposes in 1990. RFRA provides that laws could substantially burden the exercise of religion only if they constituted the least restrictive means of furthering a compelling governmental interest. Although the Supreme Court held RFRA unconstitutional as to state legislation because it was beyond the power of Congress to force states to define religious freedom so broadly,32 most courts have held that the RFRA still applies to federal legislation.33 Many states have passed their own versions of RFRA,34 and several state supreme courts have interpreted their state constitutions’ free exercise clauses as demanding adherence to the compelling interest test. Some of these states have more clearly protected free exercise by adopting a narrow definition of what constitutes a ‘‘compelling interest.’’35
An even more important development is that religious organizations seeking a constitutional exemption from antidiscrimination laws can now rely on the right of expressive association. In the 2000 case of Boy Scouts of America v. Dale (see Chapter 8), the Supreme Court held that nonprofit, ideological organizations have a First Amendment expressive association right to set employment and membership policies consistent with their beliefs, even if antidiscrimination laws would normally make such policies illegal. Dale therefore implies that Christian schools like Dayton Christian Schools have an expressive association right to refuse to employ teachers who behave contrary to church doctrine; that Christian universities like Georgetown have an expressive association right to refuse to fund gay advocacy organizations; and that schools that have a religiously based racist outlook like Bob Jones claimed to have, have the right to discriminate based on race.36 Dale , in short, is likely to protect religious schools from having their free exercise rights violated by courts and agencies acting to enforce antidiscrimi-nation laws.
However, there are still some conflicts between religious freedom and antidiscrimination laws that Dale cannot resolve. For example, Dale only protects the rights of nonprofit associations, so parties that do not fit into that category, such as the religious landlords described in the next chapter, must either fall back on legislative exemption from antidiscrimination laws or on judicial enforcement of the compelling interest test to protect their freedom to exercise their religion.