Religious exemptions from Title VII, et. al.

Volokh, Eugene VOLOKH at
Tue Dec 18 12:40:07 PST 2001

        The BFOQ exception, I think, can't be dismissed quite so easily,
because the whole question is when we consider gender to be relevant to
one's ability to do a job.  The law favors people's secular preferences for
privacy (locker room attendant) and authenticity (actor/actress), and says
that it's OK to discriminate in order to satisfy those preferences.  Under
Fred's and Rick's theory, why can't a religious employer argue that it
should equally favor his religious preferences?

        But in any event, even setting aside the BFOQ provision, under
Fred's analysis employers who feel a religious compulsion to discriminate
based on sex -- or, I take it, race and religion, since the small business
exception applies there too -- would have a Free Exercise Clause right to do
so.  And I think that indeed religious objectors would have to have similar
exceptions from copyright law, the duty to testify, and the myriad other
laws that have various exceptions.  Notwithstanding U.S. v. Lee, for
instance, I take it that there'd have to be religious exemptions from tax
laws, which are chock full of exceptions for various favored secular causes.

        Can that really be right?  This wouldn't just be the
Sherbert/Yoder-era rule.  This wouldn't even just be a forceful "least
restrictive alternative" rule.  It would be the same sort of
strict-in-theory-nearly-fatal-in-fact rule that's applied to content-based
speech restrictions.  (The underinclusiveness prong of free speech strict
scrutiny is, in my view, what makes this scrutiny particularly demanding.)
People would be free to do a wide range of things, including things that the
law sees as harmful (discrimination, copyright infringement, refusal to
testify in court, etc.), simply because they feel their religion requires
them to do this, and the law recognizes at least one other exception that
fits Fred's fairly generous test.  That just doesn't seem quite sound to me,
but I'd love to hear what others think on the subject.


> -----Original Message-----
> Sent: Tuesday, December 18, 2001 11:56 AM
> Subject:      Re: Religious exemptions from Title VII, et. al.
> In response to Eugene's first hypo, Title VII exists to eradicate gender
> discrimination.  The small business exception is significant--given the
> large number of such businesses in the United States, this exemption
> permits lots of gender discrimination that otherwise would be subject to
> the sanctions of Title VII.  It significantly undermines the purposes of
> Title VII.  Presumably Congress thought that the purposes served by the
> exemption--which probably included getting Title VII passed at all, given
> the strength of the small business lobby--were worth the corresponding
> erosion of the purpose of Title VII.
> The question, then, is why owners of small businesses should be treated
> more favorably than those with sincere religious beliefs?  Legislation
> always favors some over others, but this can be problematic when the
> interests burdened are constitutionally preferred--that is the teaching of
> the fundamental rights/equal protection cases.  One could argue that so
> many more people could claim the religious exemption than the small bus.
> exemption that allowing the former would completely frustrate the goals of
> Title VII, rather than merely undermine them, compare Lee & Yoder, but
> this seems unlikely.  Assuming, as seems probably,  that a religious
> exemption would undermine Title VII the same or less than the small
> business exemption, then the government must explain why the interests
> protected by the small business exemption are more important than the free
> exercise interests that would be protected by the religious exemption.  If
> free exercise is a preferred right, that will be diffic!
> ult to do--the government cannot simply respond that it likes small
> business owners better than religious folks (constitutionally illegitimate
> purpose), or that the law serves the pupose of eradicating gender
> discrimination except when it occurs in small businesses
> (classic/meaningless rational basis review).
> Presumably the foreign business exemption existed in recognition that many
> other countries have different cultural norms relating to gender than
> those reflected by Title VII.  Again, why can antidiscrimination norms be
> degraded to protect the cultural norms of countries that do business in
> the US, but not to protect the free exercise interests of actual citizens
> and residents of the US?  The government, under my analysis, must provide
> a constitutionally acceptable answer.
> The BFOQ exemption is different.  It recognizes (I assume) that in some
> cases gender is actually relevant to one's ability satisfactorily to
> perform the job.  In a sense, it doesn't undermine the goals of Title VII
> at all, because when gender is relevant to ability to do a job--locker
> room attendant?  Rape crisis counselor?  Semen donor?--then
> "discrimination," or invidious discrimination, is not taking place.  The
> religious exemption (for a nonchurch employer) rests on an entirely
> different rationale, and thus undermines the goals of the law to a far
> greater extent.
> I know just enough about copyright law and evidentiary privileges to be
> dangerous, so I'll pass on those hypos.  The analysis would be similar,
> however.  One would analyze the goals of the law, the exemptions and the
> interests they protect (which a foritori can be taken to outweigh the
> goals of the law), and attempt to ascertain whether a religious exemption
> is in a similar position with the exempted conduct, or protects interests
> of similar constitutional strength.  I would also suggest that the more
> exemptions, the less plausibly the government can argue that it is
> necessary to the goals of a law to deny religious exemptions.
> This is obviously an express balancing approach to exemptions, which is
> one of the reasons I remain skeptical that the Rehnquist Court--and
> particularly Justice Scalia--will read Lukumi as Rick has (though I'd be
> happy to be wrong).  Additionally, Lukumi was such an egregious case of
> legislative gerrymandering against an unpopular minority religion--it
> seemed to apply to no conduct but that of the Santeria--that one can't
> really assess what would be the significance of the dicta Rick quotes in a
> closer case--i.e., a law that by its terms applies against most secular
> conduct most or all religious conduct.
> Fred Gedicks
> BYU Law School
> gedicksf at
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