Two kinds of purpose inquiries

Tue Aug 23 15:29:30 PDT 2005

Do Title VII and the religion clauses (the latter of course applied only
to governmental employers) permit an employer to fire an employee for
engaging in conduct that offends his religious beliefs?  For an extreme
example that answers the question "no," see Venters v. City of Delphi, 123
F.3d 956 (7th Cir. 1997). Recounting the evidence that Ives (the
supervisor) fired Venters (the employee) based on Ives' religious
objections to Venters' lifestyle, the court wrote:

"Matters came to a head on February 14, 1994, when Ives called Venters
into his office and asked if she had attended church services the previous
Sunday.  When Venters admitted that she had not, Ives told her that she
had a choice to follow God's way or Satan's way, and that she would not
continue working for Ives if she chose the latter.  Ives then began
talking about Venters' sinful life and the disgust he felt toward her
because of her obstinate refusal to be saved, indicating to Venters that
he believed she was repeating a cycle of abuse she had experienced as a
child with her family.  Ives told Venters that after having observed her
behavior, he became convinced that she had had sexual relations with
family members and perhaps even animals, and that she was sacrificing
animals in Satan's name.  Ives also suggested to Venters that suicide
would have been preferable to her continuing a life of sin, and that he
would not allow the "evil spirit that had taken [Venters'] soul" to
continue to live in the police department."

The court describes the role of the religion clauses (and later Title
VII similarly):

"It is readily apparent from this rough sketch of the two clauses that
coercing a person to conform her beliefs *or her conduct* to a particular
set of religious tenets can run afoul of both the establishment as well as
the free exercise clauses."

The court focused throughout its opinion on Ives' religiously motivated
objections to Venters' conduct; with sufficient evidence from which to
conclude that Ives used conduct as a proxy for religion faith, firing
Venters because of her conduct was firing her because of her failure to
conform her conduct to his religious beliefs; the court held that would
violate both Title VII and the religion clauses.  

Michael R. Masinter			3305 College Avenue
Professor of Law			Fort Lauderdale, FL 33314
Nova Southeastern University		(954) 262-6151 (voice)
Shepard Broad Law Center		(954) 262-3835 (fax)
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Tue, 23 Aug 2005, A.E. Brownstein wrote:

> 
> I don't want to belabor the point since no one else is joining this thread 
> --- but let me take one more shot at explaining why I don't get Eugene's 
> point -- despite his very good efforts to help me understand his position.
> Then I'll give him the last word and end the dialogue.
> 
> Eugene writes:
> 
> >I think it's important to distinguish, as the subject line
> >suggests, two kinds of purpose inquiries.  The "primary purpose" inquiry
> >under Epperson/Aguillard/etc. asks whether the primary goal of the
> >legislature was motivated by a desire to further religion. (emphasis 
> >added) The
> >intentional discrimination inquiry under the Equal Protection Clause,
> >the Free Exercise Clause, and so on asks whether the government actor
> >intended (whether primarily or not) to treat a particular group worse.
> 
> Why is the primary purpose analysis under the Establishment Clause 
> different than the purpose analysis
> under Equal Protection or Free Exercise? What's different about the purpose 
> of furthering religion
> and the purpose of treating a particular group worse? Is the relevant 
> difference between "furthering" and "treating worse"
> or is it the difference between a "group," say Blacks or Jews, and a 
> "belief system", say religion, Christianity or Judaism.
> 
> I don't think the distinction between "furthering" and "treating worse" is 
> controlling. First, the EPC applies to racial favoritism as well as racial
> mistreatment. If a neutral law is enacted because it disproportionately 
> benefits Whites, it is as unconstitutional as a law that is enacted because 
> it disproportionately
> burdens Blacks.
> 
> Second, I think the religion clauses should apply with equal force whether 
> the school board is vetoing material solely because it is inconsistent with 
> Christianity (furthering), for example, or is vetoing material
> solely because it is consistent with Christianity (treating worse). (I'm 
> not talking about religious doctrine itself, which would be evaluated under 
> an effects test, or a content test, but rather material that is neutral but 
> resonates with or against religious beliefs -- and therefore would be often 
> evaluated under a purpose analysis.) Eugene, are you saying that it would 
> be OK to consider purpose if the Board was vetoing material solely because 
> it was consistent with Judaism  -- treating worse (e.g. the school says 
> teachers can't say anything bad about eating pork because it is indirectly 
> consistent with Jewish beliefs), but it is unacceptable to consider purpose 
> if the Board is vetoing material inconsistent with Judaism (furthering).
> 
> If the focus is on the difference between a group and a belief system, I 
> don't see why that distinction should matter either. There is a close 
> connection between religious beliefs and the community or group holding 
> those beliefs. A law benefiting or burdening the former is likely to 
> benefit or burden the latter as well. If a neutral law is enacted for the 
> express purpose of making it more difficult to practise a particular 
> religion,  I think that law is unconstitutional. I don't think the State 
> can avoid the constitutional challenge by arguing the law is not intended 
> to make Catholics worse off, but is just intended to suppress Catholicism.
> 
> As for Eugene's Title VII analogy, I think I understand his point. But 
> Title VII doesn't encompass the range of equal protection doctrine. When we 
> look at neutral state action that can be challenged on equal protection 
> grounds, we see it raises the exact same kind of application problems 
> Eugene wants to avoid. Eugene argues that under Title VII:
> 
> "There's no need to disentangle, for instance, an employer's religious 
> opposition to
> adultery from his secular objections to adultery from his business
> objections to adultery -- the employer is perfectly free to fire all
> adulterers, regardless of the religiosity of his underlying motivation.
> If did ask this, then it would be like the Epperson/Aguillard primary
> religious purpose test."
> 
> But what about an equal protection challenge to a neutral land use 
> regulation -- say a minimum lot size requirement. Don't courts have to 
> disentangle environmental purposes of the ordinance, e.g. lower density 
> reduces environmental impacts (like secular objections to adultery), from 
> economic purposes for the ordinance, e.g. keeping property values high 
> (like business objections to adultery), from racially exclusionary purposes 
> of the ordinance, e.g. the higher the cost of housing, the fewer Blacks 
> will be able to afford to buy housing in town (like religious objections to 
> adultery). The city isn't deliberately treating blacks differently than 
> whites in the Title VII sense. The land use regulation is facially neutral. 
> But the city isn't free to regulate the size of lots regardless of its 
> purpose. Isn't the purpose inquiry here as complicated as the Establishment 
> clause inquiry.
> 
> Eugene argues that the question under the EPC "is simply
> whether the government deliberately treated one group worse because of
> its race, religion, and so on." Why is this so different than saying that 
> the question in Establishment Clause cases is simply whether the government 
> deliberately treated one subject of study better or worse because of its 
> consistency or inconsistency with religious beliefs?
> 
> You can take it from here. Eugene. Over and out.
> 
> Alan Brownstein
> UC Davis
> 
> 
> 
> 
> 
> 
> 
> >         Note, incidentally, that the inquiry there isn't into whether
> >the government actor has a "racist purpose":  A legislature that enacted
> >a policy aimed at burdening blacks but only because it wanted to
> >diminish social tension coming from the white majority wouldn't be
> >acting with a racist purpose.  Likewise, the judge in Palmore v. Sidoti
> >probably wasn't motivated by a racist purpose.  The question is simply
> >whether the government deliberately treated one group worse because of
> >its race, religion, and so on.
> >
> >         Again, consider my Title VII analogy:  Title VII now asks
> >whether an employer treated someone worse because of his race, religion,
> >etc.  It doesn't matter whether the long-term goal was (for instance) to
> >attract religiously bigoted customers; if in order to do this, the
> >employer deliberately treated an employee worse because of his religion
> >(e.g., fired a Catholic employee), the employer is liable.  That's like
> >the Equal Protection Clause/Free Exercise Clause test.
> >
> >         Title VII does not ask whether the employer's actions were
> >primarily motivated by his own religion:  There's no need to
> >disentangle, for instance, an employer's religious opposition to
> >adultery from his secular objections to adultery from his business
> >objections to adultery -- the employer is perfectly free to fire all
> >adulterers, regardless of the religiosity of his underlying motivation.
> >If did ask this, then it would be like the Epperson/Aguillard primary
> >religious purpose test.
> >
> >         It seems to me that these tests are quite different, and the
> >Epperson/Aguillard test is considerably harder to apply than the Equal
> >Protection Clause/Free Exercise Clause test.
> >
> >         Eugene
> >
> >Alan Brownstein writes:
> >
> > > I don't understand why your argument would not undercut any purpose
> > > analysis for any
> > > doctrinal area. If the government can adopt a policy endorsed by the
> > > majority to serve impermissible purposes (whether it involves
> > > advancing
> > > religion, making it harder for blacks to get government jobs
> > > or to move
> > > into  a community, pre-condemnation down zoning, or any
> > > constitutional area
> > > where purpose analysis has been applied) and then explain it, the
> > > government's purpose, as the constitutionally legitimate one
> > > of making the
> > > majority happy, and thereby getting themselves reelected --
> > > and that is
> > > sufficient to avoid the constitutional challenge -- then it
> > > seems to me
> > > that purpose analysis can always be circumvented. All the
> > > government ever
> > > has to do is say that its purpose is to do what the majority
> > > wants. There
> > > is certainly an argument to that effect. But it extends way
> > > beyond the
> > > religion clauses.
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