Compelling state interest in banning discrim in hiring clergy

[Eugene Volokh]

    The compelling state interest in banning discrimination in hiring
clergy is the same as the interest in banning discrimination in any
other profession:  It protects what many (but not all) people believe
to be a basic human right to pursue one's choice of living without
one's skin color getting in the way.

    True, granting an exemption to religious organizations in hiring
clergy won't interfere with this right quite as much as would, say,
granting an exemption to all religious objectors:  Fewer people would
be affected by it.  But if one believes that every instance of
discrimination is a deep moral wrong to the discriminated-against
person, then whether the exemption would affect 100,000 people or
10,000,000 people doesn't matter.  Letting churches trespass on other
people's property, for instance, would also affect relatively few
people, but because we think that trespasses are generally moral
wrongs, we don't grant an exemption to churches from trespass laws.

    Why then should clergy hiring get an exemption but not other
kinds of hiring?  Because, it seems to me, clergy hiring decisions
affect the nature and survival of religious institutions in a way
that other hiring decisions do not.  Therefore, discrimination in
clergy hiring should be allowed *even if* banning such discrimination
is the least restrictive means of serving a compelling government
interest.  Clergy hiring decisions are properly governed by a test
that's toothier than strict scrutiny -- a test that's essentially per
se invalidation of regulations (subject perhaps to some exceptions for
things such as requiring churches to abide by their contracts, or at
least pay damages for violating their contracts).  Query what the
status of minimum wage law or child labor law as to clergy hiring
would be; but in any event, we shouldn't assume that these laws would
be governed by the same strict scrutiny standard that we apply to
nonclergy hiring decisions.


Marie Failinger writes:

>     But what would be the compelling interest in a state forcing any
> religion to accept priests of any kind?  This case is different than Bob
> Jones, it seems to me, because:
>     a)the Bob Jones rule against interracial dating, if the state had done it,
> would have at least implicated a clear violation of the
> Constitution given the Loving holding that interracial
> intimate relationships, or at least marriage, are constitutionally
> protected. In this sense, although we might not want to use this frame,
> there is more of a sense that Bob Jones was infringing on a constitutional
> "right" than on the "privilege" or "calling" of serving as a minister,
> given to very few.
>     b)the Bob Jones rule affected many more people than the ordination
> rule would affect; and on a much more a "public" concern  and perhaps even
> arguably a "secular"  question (though I would not want to push these
> distinctions) than the issue of ordination.
>     c)Bob Jones could have achieved its purposes almost as easily by
> asking students as a matter of conscience not to date interracially, so
> the harm to the University of complying with IRS expectations would be
> pretty minimal--anyone who defied the
> rule could have been socially ostracized or encouraged to transfer.  By
> contrast, if this gender (or even, I hate to say it, race) minister thing
> was critical to the understanding of the religion as a sacrament, there
> would be no alternative way for the religion to effectuate its interest
> if the state demanded a gender-neutral ban;
>     d)what purpose would the state be serving by withdrawing
> tax-exemption for the gender exclusion for ordained ministers?  The
> message that gender discrimination in religious ministries
> is a bad thing would not be nearly as cleancut as the message sent by the
> tax exemption in Bob Jones (the public would probably say, "well, let her
> join another church if she doesn't like it," in a way that they might not
> say, "well, let the couple transfer to another school if they don't like
> it" given public perceptions on religious voluntarism.)
>
> And the complications caused by the message
> that the government was singling some religions out for their different
> beliefs would defeat whatever minimal benefits it might confer on actual
> women. (Indeed, this perception that some religions were singled out for
> punishment for their views on race was perhaps the biggest problem with
> the Bob Jones result, even if I have to agree with it.) In terms of
> benefit to the students from coercing the religious body to comply, in Bob
> Jones, interracially dating students could still get an education even if
> under a cloud of disapproval; in the ordination case, however, it is
> doubtful that a woman minister would have a very good
> job if she were forced on a polity that rejects her authority.


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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010