(from Marty Lederman) re: The Brownstein / McConnell thread

[Volokh, Eugene]

Prof. Berg raises many interesting points.  Perhaps most provocative --
and most revealing of list participants' variance in views on this
subject -- is his claim that when the Salvation Army "asks employees to
sign a statement of commitment to Christian beliefs and principles the
distinction between `religion' and `the employer's goals and principles'
collapses."  This raises the important question of what the government
means when it prohibits discrimination on the basis of an employee's
"religion."

I think the usual understanding is that an employer may not discriminate
against an employee because of (i) the religion with which the employee
identifies herself (e.g., "I am Muslim."); (ii) the "religion" that the
employer attributes to the employee, regardless of the employee's own
identification ("You are Jewish because you were born of Jewish
parents."); or (iii) the religious *practices* in which the employee
engages.  These forms of "religious" discrimination generally are
forbidden, especially for funding recipients. For instance, many
statutes provide that recipients of certain forms of government funding,
Sierra Club and Salvation Army alike, may not engage in these types of
religious discrimination.  (The third type raises difficult questions
(not relevant here) where, as is often the case, the employer burdens
the practice whether or not the employee is religiously motivated --
e.g., "Because Sunday is our busiest day of the week, all my employees
must work Sundays.")

To these three -- status, "apparent" status, conduct -- Prof. Berg adds
a fourth (and possibly a fifth) form of religious discrimination:
discrimination on the basis of religious *beliefs,* e.g., preferring
employees who share a "commitment to Christian beliefs and principles."
I think it is helpful, at least as a matter of statutory law, to
separate the two types of requirements -- "beliefs" and "principles" --
to which that Prof. Berg refers.  I may be wrong, but I don't think
Title VII, or funding statutes generally, forbids discrimination on the
basis of "principle," religious or otherwise.  Thus, the Sierra Club can
prefer persons who are "committed to environmental principles"; NOW can
prefer persons who are "committed to feminist principles"; and the
Salvation Army can prefer persons who are "committed to Christian
principles," as well as persons who are "committed to providing for the
poor."  The problem, of course, comes if and when the Salvation Army
insists on certain religious *conduct* as proof of the committment to
certain principles, or if the SA requires that its employees have
certain "beliefs."  PETA (ok, assume arguendo that PETA receives federal
funds) can insist on employees who practice vegitarianism.  And the
Salvation Army can inisist on employees who have, through their actions,
demonstrated a commitment to helping the poor.  But can either PETA or
the Salvation Army insist on employees who have certain fundamental
"beliefs" (e.g., that God forbids the killing of animals or requires
assistance to the poor), or who engage in certain religious practices
unrelated to the functions for which the government provides funds
(e.g., prayer, ritual)?  I think that as a matter of statutory law, the
answer generally is "no."  The question then becomes -- as discussed by
Profs. Brownstein and Berg -- whether the EC would permit the
legislature to provide religious organizations with an exemption from
this prohibition against discrimination on the basis of religious
"belief" or religious "conduct."  As I understand it, the issue does not
involve discrimination on the basis of "principle," which is permissible
for all employers.  I am fully aware that, in discussing certain
religions, it makes little or no sense to discuss "principles" and
"beliefs," or "principles" and "conduct," as though they were distinct
and/or separable.  My only point is that the civil law does draw these
distinctions, for better or worse.

Marty Lederman
(in my personal capacity)




Tom Berg wrote:

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.



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