The Brownstein/McConnell thread

[Thomas Berg]

Marty Lederman wrote:

> I think Prof. McConnell is confusing discrimination *motivated by* the
> *employer's* religion with discrimination on the *basis of* the *employees'*
> religion.  As I understand Prof. Brownstein, he is not addressing whether
> religious institutions that receive federal funding for a secular function
> should be able to discriminate "on religious grounds."  (I'm reading "grounds"
> to be synonymous with "motives" or "reasons.")  Instead, he's addressing
> whether such organizations should be able to discriminate on the basis of
> their employees' (or beneficiaries') *religion.*  NOW, the Sierra Club, the
> Federalist Society, Planned Parenthood, the ACLU, et al.:  If they receive
> certain federal funds, then by statute *none* of them can discriminate, e.g.,
> in employment, on the basis of employees' race, religion, sex, etc.  And they
> are prohibited from doing so *even if* they have an "ideological preference"
> for such discrimination.  They can, of course, generally discriminate on the
> basis of employees who "share their goals and principles," since there's no
> statute forbidding discrimination on the basis of employees' "goals and
> principles."  But they may not discriminate on the basis of their employees'
> religion, or religious practices, whether that discrimination is motivated by
> the employer-groups' religious beliefs, religious hostility, religious
> stereotypes, etc.  (In other words, if the organization's "goals and
> principles" are that persons of a particular religion/sex/race should not be
> hired, they may *not* abide by those goals and principles.)

But surely the point is that with respect to religious organizations, the
distinction between "religion" and "the employer's goals and principles"
collapses.  The Sierra Club could receive government funds even if it asked
employees to sign a statement of commitment to environmentalist beliefs and
principles.  But under the proposal being discussed here, the Salvation Army men's
shelter cannot receive government funds if it asks employees to sign a statement
of commitment to Christian beliefs and principles.  In this situation, religious
beliefs and ends ARE a set of employer goals and principles.  And unless there is
an exemption from a no-religious-discrimination condition on funding, religious
organizations will be the only ideological organizations that cannot demand such a
commitment from their employees without being put at a disadvantage by the
withdrawal of funds.



> Title VII does, of course, provide that religious organizations, and only
> religious organizations, may discriminate on the basis of their employees'
> religion.  (By contrast, such organizations may not discriminate on the basis
> of their employees' race, whether such discrimination is religiously motivated
> or not.)  In Amos, the Court held that this disparate treatment -- permitting
> religious organizations to discriminate on the basis of employees' religion,
> where other employers cannot -- was a permissible accommodation even as to
> ostensibly "secular" job positions, in large part because it is often
> difficult to tell whether a certain job does or does not have a religious
> component, and because religious organizations should not be under the cloud
> of possible liability as to the close-to-the-line job categories that some
> government official might consider to be "secular" rather than religious.
>
> As I understand him, Prof. Brownstein wonders whether the logic of Amos should
> carry over to an exemption for religious discrimination by religious
> organizational employers, as to employees who are performing those functions
> that the government has funded (e.g., family planning or drug counseling,
> child care).  Under current S. Ct. doctrine, such funds *may not* be used for
> religious activities such as proselytizing or religious teaching.  (I know, I
> know, many think that doctrine is wrong.  But assume that we still operate
> under current law, as declared by all nine Justices in Bowen.)  Therefore, the
> employees in question -- unlike the employee in Amos -- necessarily will *not*
> be performing certain religious functions (at least insofar as they are
> employed in the program for which funds were provided).  Can the Amos
> justification for the religious exemption be justified as to this discrete
> group of "government-funded," "secular function" employees?  Or does the EC
> require that under these circumstances and with respect to these employees,
> religious employers be subject to the same antidiscrimination constraints as
> all other government funding recipients?

I had a good discussion with Alan recently about this line of argument, arising
out of a fine paper he wrote about the charitable-choice provisions of the welfare
reform bill.  (By the way, I thought Alan's position was stronger than that
religious organizations could be subjected to a statutory condition against
religious discrimination; I took him to be arguing that it would be
*unconstitutional* to provide funds to a religious organization and allow it to
engage in religious employment discrimination in the funded activity.  The
distinction is important, because many statutes imposing conditions on federal
funding do not include religious discrimination as a prohibition; thus the bar on
religious hiring by a funded religious organization in those cases would come only
from the Establishment Clause.)

In any event, here are a few responses to the argument :

1.  Even if we accept the argument -- that there's no reason to hire on a
religious basis when employees are constitutionally forbidden to engage in
religious teaching anyway -- by its own terms it does not apply when the mechanism
of funding is indirect or voucher-like.  When money is given to beneficiaries to
use at various institutions (rather than given directly to the institutions
themselves), there does not appear to be any Establishment Clause bar to the
application of that funding to religious teaching that is intermixed with the
secular activity the government is supporting.  I take that to be a holding of
Mueller, Witters, and Zobrest, each of which upheld the use of
beneficiary-channeled support at, among other places, "pervasively sectarian"
schools where religious teaching permeated all aspects of the schools.  So in an
indirect or voucher-type scheme (which by the way I prefer constitutionally for a
number of reasons), the organization that is the ultimate recipient does retain
the right to teach religion throughout its activities and therefore has a strong
interest in considering its employees' religious commitments.

2.  Even in cases of direct funding, where current law continues to put limits on
religious teaching by funded organizations, the organization may have many other
legitimate reasons for considering its employees' religious commitments in making
hiring decisions.  Even if employees in a funded activity cannot engage in
religious teaching, the organization surely has the right to ensure that the
employees will not say things at odds with its religious views; to avoid constant
burdensome policing of employees' day-to-day statements, the organization may well
want to hire only employees of its own faith, or least prefer them.  Moreover, the
employees do not only interact with clients (i.e. students or welfare-service
recipients); they interact with each other, and an employer may well decide that
even if there can be no direct religious teaching to clients, the employees should
be supporting each other religiously "behind the scenes" (at office meetings,
prayer meetings, break sessions, etc.).  The employer may believe that such shared
activities are extremely important to maintaining the sense of religious
motivation behind the client-oriented services.  And there are probably numerous
other non-invidious, religiously-grounded reasons why a religious organization
might want employees committed to the faith (or a certain number of them, and
therefore have a hiring preference), even if the employees do not engage
specifically in religious teaching.

3.  To say that the above concerns that a religious organization might have about
employees' religious commitments are not as important or convincing as the
concerns about employees who engage in religious teaching is to engage in
precisely the kind of second-guessing of a religious organization's mission that
the Court (agreeing with Congress) feared in Amos.  (I realize that Amos dealt
with regulation and we are now talking about funding, but I don't see how the
government's inquiry into what is or is not within an organization's religious
mission is any less entangling in the funding situation -- nor, if we accept the
unconstitutional conditions doctrine here, is the selective withholding of funding
any less burdensome on the religiousorganization.)

4.  Finally, as Marty notes, one could question the whole underlying premise:  the
bar on direct funding of an activity or program that provides secular value, just
because the program includes religious teaching.  I'll leave that for now.


Tom Berg
Cumberland School of Law, Samford University






>
>
> Michael McConnell writes:
>
> I do not know whether Alan Brownstein is actually proposing that
> religious institutions that discriminate in their hiring on religious
> grounds be excluded from otherwise available neutral funding, but if
> he is, I disagree.
>
> IN our society, there are many organizations that "discriminate" in
> their hiring in favor of people who share their goals and principles.
> Examples: NOW, the Sierra Club, the Federalist Society, Planned
> Parenthood, the ACLU. None of these organizations is excluded on that
> ground from participating in government-funded activities. Why are
> religious organizations the only ones whose ideological preference,
> manifested in hiring, are deemed "discriminatory"?
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