Antidiscrimination law and kosher winemakers

[Volokh, Eugene]

                If "the question is really whether the religion can function
with the restraint in place," then the answer here is "yes."  To the extent
that Judaism requires the drinking of kosher wine -- as opposed to simply
requiring that, if you drink wine, it must be kosher -- the needs of
American Jews can easily be satisfied with imported wines.

                Nor am I sure that it's accurate to say that the typical
religion "can[not] function" with antidiscrimination law in place as to
clergy.  Catholicism might be unable to function, in its current form, with
such a constraint, unless sex is considered a BFOQ for clergy (a similar
question to the one raised in the kosher winemaker context); likewise for
those strands in Judaism that reject female rabbis.  On the other hand, for
most denominations, the ban on race discrimination, if enforced, would mean
that the religion "can[not] function with the restraint in place," since
most denominations do not insist on race discrimination.

                The concern animating the clergy exception, it seems to me,
is that applying antidiscrimination law to the clergy -- even when the
relevant denomination doesn't require, as a religious matter, the
discrimination involved -- tend to require courts to routinely investigate
quintessential religious decisions in their investigation of the facts about
why exactly someone was fired or not hired; the usual discrimination
defense, after all, is "no, we rejected this person because we thought he
wasn't doing a good job, or wouldn't do a good job."  That's a hard enough
defense to evaluate in normal cases; dealing with it when "good job" has to
be evaluated from the perspective of "good job preaching the Gospel" or even
"good job creating religiously inspired music" might routinely lead courts
to evaluate religious matters, in violation of the Watson v. Jones
principle.  Moreover, as Smith suggested, and as Boy Scouts v. Dale
reinforced, it might violate more general freedom of expressive association
norms -- after all, it would involve the government interfering with who can
speak for the group, both to group members and to outsiders.

                This is why courts applying the ministerial exception look
to whether "the employee's primary duties consist of teaching, spreading the
faith, church governance, supervision of a religious order, or supervision
or participation in religious ritual and worship, he or she should be
considered clergy," see EEOC v. Roman Catholic Diocese, 213 F.3d 795, 799
(4th Cir. 2000); Rayburn v. General Conference, 772 F.2d 1164 (4th Cir.
1985); and while this may cover religious choir directors, it doesn't
necessarily cover, say, religious school teachers who teach mostly secular
subjects, see, e.g., DeMarco v. Holy Cross High School, 4 F.3d 166 (2nd
Cir.1993); Guinan v. Roman Catholic Archdiocese, 42 F. Supp. 2d 849(S.D.
Ind. 1998), directs of plant operations, Lukaszewski v. Nazareth Hospital,
764 F.Supp. 57 (E.D.Pa.1991), or church chefs, Stouch v. Brothers of the
Order of Hermits of St. Augustine, 836 F.Supp. 1134 (E.D.Pa.1993).  I'm not
sure these cases are correct as to religious school teachers, even those who
teach mostly secular subjects, but the reason why I doubt this is precisely
because I think such teachers often *do* involve themselves in spreading the
faith, albeit indirectly.  Not so, I think, for the kosher winemaker; maybe
so for Rick Duncan's religious bookstore clerk.

                Thus the bottom line:  The focus, I think, has to be on this
"spreading the faith"/"church governance" issue, rather than on "whether the
religion can function with the restraint in place."

                Eugene

> -----Original Message-----
> From: Charles Sullivan [SMTP:sullivch at SHU.EDU]
> Sent: Tuesday, December 19, 2000 5:10 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Antidiscrimination law and bookstores
>
> Perhaps I should have been more expansive.  The ministers exception
> precedes Smith, and is said to be rooted in a line of Supreme Court cases
> which are said to stand for the proposition that the state cannot
> interfere
> with the internal management or government of religion.  The exception has
> been reaffirmed post-Smith on the ground that Smith didn't have this line
> of cases in mind. Therefore, a rule of general applicability does
> implicate
> the first amendment -- even without any intent to target a religion or
> religions -- so long as it interferes with internal management.  On this
> view, the secularly-owned kosher wine producer and the secularly-owned
> religious bookstore are outside the ministers exception, and Eugene is
> correct.
>
> On the other hand, I have never understood the limiting principle of the
> ministers exception -- and, like many ideas which seem obvious in the
> abstract, it is now undergoing a natural expansion as churches try to
> immunize their personnel decisions by invoking the exception for, say,
> choir directors (I am not questioning the importance of music to many,
> maybe most, liturgies -- merely showing how a "narrow" exemption is
> growing).  Certainly, Professor Duncan's posts would suggest that a clerk
> in the church bookstore is also within the exemption! The question,
> obviously, is whether "internal management" is limited to top management,
> middle management, or everyone in the organization.
>
> I know this still doesn't get to the secular employers whose hypothetical
> hiring practices triggered this thread.  But it seems to me (and this is
> clearly contrary to Smith and not saved by the internal management cases)
> that the question is really whether the religion can function with the
> restraint in place.  The original hypothetical (which several subsequent
> posts suggest was  overstated factually) was of a sacramental wine which
> could not be produced if Title VII were to be applied.  I think the BFOQ
> would probably avoid the constitutional question in the hypothetical (but
> not in the bookstore one), but I would join Professor McConnell in
> thinking
> that there has to be a constitutional backstop here, although I think his
> proposed rule has no basis in Title VII, and is too broad under the free
> exercise clause for reasons I've stated in an earlier post.
>
> <<<Eugene Volokh writes:
>         1.  I dismissed the ministerial exception in the context of Kosher
> wine-making.  I don't know how it would work vis-a-vis a clerk in a
> religious bookstore who gives people advice about which books are
> spiritually valuable, but I'm pretty sure that it wouldn't work in the
> wine-making context.  The wine-makers aren't involved in promulgating
> religious doctrine, giving religious advice, or doing anything else other
> than (1) making wine, (2) being Sabbath-observing Jews, and (3) making
> sure
> that no non-Sabbath-observing Jews touch the wine at the relevant points.
> I'm unaware of any cases that have extended the ministerial exception this
> far.>>>
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