Free Ex Cl & discrimination in choice of clergy

[Volokh, Eugene]

        Rayburn v. General Conference of Seventh-Day Adventists, 772
F.2d 1164 (4th Cir. 1985), concluded that the Free Ex Cl barred sex and
race discrimination claims against the church; the court explicitly
refused to "inquire whether the reason for Rayburn's rejection had some
explicit grounding in theological belief" (the standard inquiry under
Sherbert et al.).  To my knowledge, the Seventh-Day Adventists don't
claim any religious justifications for discriminating based on race; my
sense is that they denied such discrimination in this case.  I believe
other cases follow Rayburn in this respect.

        This, by the way, is another reason why it seems to me that Free
Ex Cl clergy discrimination claims don't fit well into the RFRA
framework.  They haven't (unlike RFRA) required a substantial burden in
the traditional sense; they aren't, as I have argued in my Penn piece,
easily explained as application of strict scrutiny -- they are more by
way of a per se prohibition.  I don't think it's doctrinally helpful to
try to treat them as if they were standard applications of general
Sherbert / Yoder principles.  And while I agree with Michael that, as a
practical matter, churches might well like at least the possibility of
protection under RFRA as well as under the post-Smith Free Ex Cl, it
seems to me that post-Smith cases have given them quite adequate
constitutional protection against clergy discrimination claims.

> -----Original Message-----
> From: Lederman Marty [SMTP:Marty.Lederman at USDOJ.GOV]
> Sent: Friday, November 06, 1998 7:40 AM
> To:   RELIGIONLAW at LISTSERV.UCLA.EDU
> Subject:      Re: RFRA
>
> Has a court ever held that a church has the "absolute" freedom to hire
> clergy, even if it does so on racial grounds and even if that race
> discrimination is *not* religiously motivated?  In any event, if
> churches do in fact have that "absolute freedom" under the FEC, then
> they don't need a statutory right under RLPA.  As I understand it, the
> RLPA proponents' arguments against a carve-out for race discrimination
> laws is not that RLPA should ever require an exemption from such laws;
> but that it would be dangerous and/or wrong and/or politically
> impossible for Congress itself to start declaring which state
> interests are, or are not, most compelling.
>
> Marty Lederman
> (in my personal capacity)
>
>
> -----Original Message-----
> From: Michael McConnell
> Sent: Friday, November 06, 1998 8:50 AM
> To: RELIGIONLAW at LISTSERV.UCLA.EDU@inetgw2
> Subject: Re: RFRA
>
>
> Why should RFRA, or RLPA, or whatever, wholly exclude race
> discrimination laws? That would mean, among other things, that
> disappointed applicants for clergy positions could sue churches for
> failure to hire them. I thought that absolute freedom to choose
> clergy was one of the few rights left after Smith.
> -- Michael McConnell (U of Utah)