A Ninth Circuit panel issued three very interesting opinions on this subject today in Spencer v. World Vision, Inc. The opinions are long and detailed; if you’re interested in the issue, you should read them. But here’s the short summary:
1. “World Vision describes itself as ‘a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.’” It is not affiliated with any particular church organization, but it is self-consciously Christian, and insists that its employees be Christian.
2. Title VII of the Civil Rights Act of 1964 bars religious discrimination in employment, but exempts (in § 2000e-1) religious discrimination by “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” (This is separate from the bona fide occupational qualification exemption and the ministerial exemption; for more on those, see here.) Churches and sufficiently religious schools qualify; the question is whether religious charities that don’t focus on worship or education do.
3. Judge O’Scannlain offers this test: “a [A] nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it [B] is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), [C] is engaged in activity consistent with, and in furtherance of, those religious purposes, and [D] holds itself out to the public as religious.” (All prong lettering here and below is mine.)
4. Judge Kleinfeld, concurring in the judgment, offers this: “To determine whether an entity is a ‘religious corporation, association, or society,’ [note the exclusion of "religious ... educational institution[s], which Judge Kleinfeld would treat somewhat differently -EV] determine whether [B] it is organized for a religious purpose, [C] is engaged primarily in carrying out that religious purpose, [D] holds itself out to the public as an entity for carrying out that religious purpose, and [E] does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” (The lettering doesn’t start at A, because my point here is to note the similarities between the O’Scannlain and Kleinfeld tests.)
5. Judge Berzon, dissenting, seems to offers this: “Congress used the terms ‘religious corporation, association … or society’ … to describe a church or other group [F] organized for [F1] worship, [F2] religious study, or [F3] the dissemination of religious doctrine.” (I assume this is the exclusive test that the opinion proposes; please correct me if I’m misreading it.)
The policy arguments are too long and detailed for me to summarize here; please read the opinions and see what you think of them. Thanks to Prof. Rick Hasen for the pointer.
UPDATE [Jan. 25, 2011]: The panel issued a revised opinion which includes a two-judge per curiam explicitly agreeing on a rule: “[A]n entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.”
Just Dropping By says:
From the opinion:
(1) I would love to know how this came up 10 years into their employment.
(2) I assume Judge O’Scannlain meant that the plaintiffs denied the divinity of Christ. I think all major forms of western Christianity would deny the deity of Christ.
August 23, 2010, 4:10 pmpete the elder says:
It would be pretty hard to argue that World Vision does not disseminate religious doctrine at least to some extent. Although most of what they give is food, medicine, school supplies etc. they also spend some money distributing bibles in third world countries. Their main webpage right now mentions the book “The Hole In Our Gospel”, written by the organization’s president.
And the BBC refers to them as a Christian group in this story about when their offices in Pakistan were bombed by Muslim terrorists.
August 23, 2010, 4:11 pmJust Dropping By says:
I have to let Judge O’Scannlain off the hook — reading the decision further down, it appears the defendant organization itself uses the phrase “We believe in the deity of our Lord Jesus Christ,” in its articles of incorporation.
August 23, 2010, 4:18 pmerp says:
These arguments are getting more and more like the arguments about how many angels can fit on the head of a pin. Yeah, yeah, I know, angels, being incorporeal, the question doesn’t apply.
August 23, 2010, 4:38 pmNickM says:
Kleinfeld’s opinion looks like potentially bad news for the Salvation Army, Deseret Industries, or similar thrift stores operated by religious entities, if their hiring practices include religious belief requirements. Their stores engage in a substantial amount of sales for non-nominal amounts.
Nick
August 23, 2010, 5:17 pmADF Alliance Alert » When may religious charitable groups discriminate in employment based on religion? says:
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August 23, 2010, 5:31 pmConservative Evangelical says:
As a political libertarian, I always oppose government interfering with anyone’s exercise of their professed faith.
But as a theologically conservative Evangelical Christian, I have to admit that a part of me would have felt vindicated by a finding that Worldvision is essentially a secular humanist organization (albeit an extremely good one, that’s full of lots of good people!) with a little Christian terminology sprinked in to blur the boundary.
Again, nothing wrong with secular humanism…it’s just a different worldview from Classical Christianity, and some of us feel that’s a meaningful distinction.
(Of course, the libertarian in me still fully supports the right of secular humanists to pretend that they are religious if they wish.)
August 23, 2010, 6:04 pmArthur Kirkland says:
Another special interest group demanding special treatment.
Next they’ll want to shirk on taxes, and expect government money.
Thank goodness conservatives will stand up to people like this.
August 23, 2010, 6:15 pmKirk Lazarus says:
It’s a particularly strange conjunction of objections because if anyone maintains the deity of Christ it would be nontrinitarian christians (AFAIK most non-sectarian scholars of religion regard nontrinitarian christians as a sort of christian).
August 23, 2010, 6:30 pmOwen H. says:
Several local companies (contractors and the like) include the fact that they are Christian in their ads. Does this decision mean they can claim to be “Christian corporations”, and refuse to hire non-Christians?
August 23, 2010, 8:20 pmSo says:
…can PETA require its employees to be vegetarian? Or to not practice a religion that involves animal sacrifice or animal products in its rituals?
August 23, 2010, 8:29 pmShelbyC says:
I sure would hope so.
August 23, 2010, 9:48 pmReaderY says:
The First Amendment’s Free Exercise Clause protects the free “exercise” of religion. If the Framers had intended to limit “exercise” only to the speech-like activities of prayer and religious intstruction, it would seem a rather odd choice.
Moreover, the Constituition has an establishment clause. That Clause prevents Congress from providing benefits to religions that don’t have sacrifices, temples, and money-changers because it prefers religions without sacrifices, temples, and money-changers to religions with them. And Congress can’t implement its choices simply by defining “religion” to mean only the activities it likes and exclude the activities it doesn’t.
If Congress could arbitrarily limit the definition of “religion”, Congress could control who the Temple money-changers get to be, who can perform or supervise the ritual slaughtering of kosher or halal meat, who makes the holy water or the wine, who provides child-care, who has the power to heal.
August 23, 2010, 9:54 pmConservative Evangelical says:
Unfortunately this happens all the time, as the caselaw always seems to pick on certain worldviews as “religious” and privilege others (like liberal PC orthodoxy, in its many forms) as somehow an establish-able philosophy.
August 23, 2010, 10:37 pmBarb says:
I don’t see much difference in dictionary between deity and divinity–Christ is divine and He is God. “If you’ve seen me, you’ve seen the Father.” “I and the Father are one.” Most of western Christianity believes in a Triune Godhead–i.e. the Trinity –Three in One –Father, Son, and Holy Ghost. Yet, there is a submission of the Son to the Father’s will –as when Jesus prayed to the Father that the cup of suffering be passed from Him –yet “nevertheless, not my will but thine be done.” John writes, “In the beginning was the Word (the ultimate Logos/message) and the word was with God –and the Word WAS God.” “And the Word became flesh –and dwelt among us.” “And His own received Him not.”
Jehovah’s Witnesses are one group that says Jesus is not God since He is subserviant and they don’t want us to worship Christ –but I always tell them when they come to my door, that I don’t see in scripture any jealousy on the part of the Father toward the Son –that the Bible says that someday, “every knee will bow and every tongue confess that Jesus Christ is Lord.” And they will say, “Worthy is the lamb that was slain for the sins of the world.” Praise of Christ the Son as Divine and Deity –is appropriate.
World Vision has always been a Christian organization –started by Bob Pierce? or Bob Cook? they used to have an annual convention to raise awareness of their work at the Winona Lake Bible conference grounds. I was there as a child. They are a missionary-aid group –and the gov’t should not make them hire people who do not bear their message of Christ as Divine and Deity any more than they should do it to a Christian school or church. What about the Salvation Army? the Christian homeless missions in cities? The Gospel is the motivation for their aid –and it is the life-changing message of renewal that most effectively combats all the problems of poverty and misery. therefore, the aid workers need to believe in the message in order to represent the organization appropriately.
I am so aware from first hand acquaintances of the relationship between poverty, and unbelief, immorality and family breakdown. Christianity addresses that issue, calling us to repentance, renewal from within, and moral discipline. Liberals just want to redistribute wealth from the working to the non-working.
August 23, 2010, 10:50 pmK. Chen says:
Wouldn’t the E prong of the Klenfield test exclude a Goodwill like organization that is otherwise religious, but raises money by selling donated goods? Or those donate-your-car charities?
August 24, 2010, 4:20 amJeff Black says:
Damn that First Amendment!
August 24, 2010, 11:53 amMark Horning says:
And if so, how does Goodwill differ from St. Vincent de Paul, which basically does the exact same thing, but is named after a dead saint and is pretty explicitly Catholic.
Can an organization demarcate between non-religious activities such as working in the retail thrift shop, and religious activities such as distributing aid to the homeless?
Running a till seems to be a prety secular act, but handing out food and saying “Jesus loves you” seems to be religious.
If a bunch of militant Atheists put together an explicitly Atheist charity with the motivation of showing that Atheists were more charitable than religious folks, could they discriminate in hiring against those whith a theological bent?
August 24, 2010, 12:16 pmJust Dropping By says:
Coming from a Catholic school background, referring to Christ as “deity” sounds like monophysitism – elevating Christ’s status as an aspect of God ahead of his human nature.
August 24, 2010, 12:25 pmeyesay says:
An interesting case. Under Judge Kleinfeld’s opinion, a bookstore, even organized as a 501(c)(3) nonprofit organization, selling books of interest to adherents of some religion, would not be exempt from Title VII’s prohibition against religious discrimination. While I am generally sympathetic to the notion that a for-profit business can’t practice religious discrimination in employment (for instance, a Buddhist auto parts store is basically an auto parts store and can’t refuse to hire non-Buddhists) I would be more sympathetic to a Buddhist bookstore that refuses to hire non-Buddhists, because the public expects a Buddhist bookstore to be staffed by people who really believe and practice, and those employee beliefs and practices are not incidental to the experience of being a customer of the bookstore.
August 24, 2010, 1:59 pmDennis N says:
Are they Cherubim or Seraphim? Archangels would be tough.
August 24, 2010, 2:03 pmeyesay says:
Even though I was within the editing time, when I tried to do so, the system put up a dialog box saying “You do not have permission to edit this comment.” Why did this happen? I wanted to change “the public expects” to “the public might expect” or “the customer might expect.”
August 24, 2010, 2:03 pmBarb says:
Yes, why aren’t the atheists more charitable?? where are their hospitals and missions and schools and clinics around the world? And yes, I say, let them discriminate in hiring and call themselves the religion of atheism for their tax deductions –as long as they do good works. But they won’t. There is no love motivation there; love is the powerful impetus to all Christian missions.
August 24, 2010, 2:45 pmBarb says:
Why? They were always evangelical Christian in the past. Have they gotten more liberal? Perhaps when they hired these 2 unbelievers 10 years ago –but they must be demanding more now.
I have to admit my stupidity –or my hurried manner of not reading the details –but what WAS the legal decision here??? Does World Vision lose tax exemption if they don’t hire unbelievers? or did the court uphold their right to discriminate?
August 24, 2010, 2:52 pmDavid M. Nieporent says:
Fun with successive adjectives. What exactly are “Buddhist auto parts,” anyway?
August 24, 2010, 3:08 pmerp says:
Author: David M. Nieporent said”
What exactly are “Buddhist auto parts,” anyway?
Careful David, this is a family blog!
August 24, 2010, 4:07 pmK. Chen says:
The skill set of being able to run a Buddhist bookstore is not dependent on religious affiliation, anymore than the skillset of being able run an Maserati parts supply requires being a Maserati aficionado. (Not that religion and car love are exactly the same thing)
The problem with the E prong is that it restricts religious communities from engaging in commerce to fulfill their (socially desirable) religious missions while maintaining their immunity. Now, I probably would prefer a world with the current number of religious charities who all hired without worrying to much about affiliation, but it seems a world with less charities is a more likely result.
August 24, 2010, 5:02 pmtheobromophile says:
By which you probably mean “not at all” for either, but I have to disagree. If customers are coming in there and know exactly what they want, then all you have to do is give it to them or point them in the right direction. Bookstore employees, however, are asked for recommendations, host book-signings, suggest new authors, etc., so a knowledge of the subject (although not belief in it) is helpful. Likewise, having gone to auto-parts stores quite a bit, I’m here to tell you that an auto-parts salesman who knows about car repair is a good thing. When I go to the Parts Department at the dealership, they actually know enough about my car (and when some parts were no longer manufactured) to be more helpful than, say, a website with free shipping.
Of course, neither of those requires any actual belief, just knowledge (and an ability to not antagonise the customer). I don’t care if the Volvo parts people do not recognise the superlative nature of my vehicle, but it would be nice if they knew more about it than some schlep who wouldn’t know a Volvo from a Ford Taurus. Ditto to the Buddhist bookstore employees.
August 24, 2010, 5:38 pmeyesay says:
Barb wrote,
There may or may not be any explicitly atheist hospitals, missions, schools and clinics, but so what? Non-believers organize, work for, volunteer for, and donate to these and other charitable organizations, and they are as likely as theists to be motivated by love.
If person A believes in God and founds a school in Afghanistan, and person B does not believe in God and founds a school in Afghanistan, is there any basis for knowing which of them is more motivated by love, and even if we could determine that one of them was more motivated by love than the other, would that make that person’s contribution more important in any way?
August 24, 2010, 5:42 pmMark Horning says:
Atheists are no more or less charitable than anyone else. My point was that World Vision has a specific religious reason for their charatable actions.
If I started Non-Believers Charities United as a charatable organisation who’s goals and mission statement are “to promote charatable giving and rationality” could the courts force me to hire theists to staff the place?
August 24, 2010, 6:26 pmK. Chen says:
Right, so by that logic, it wouldn’t be a valid reason to allow Buddhist bookstore to exclude non-Buddhist clerks who were also knowledgeable about Buddhism.
August 24, 2010, 7:45 pmBarb says:
If person B founds a school, good for him. Does he? I’m betting that most of the private schools, clinics, hospitals, here and abroad have been started by Christians –more than any other group historically –because of Christian compassion, love, work ethic, etc. Lately, gov’t and private business interests — medical groups and insurance companies and town governments start new hospitals and clinics –but Christianity has been behind most charitable institutions and relief efforts in the past and in poor countries abroad. In Haiti, the Christian groups were noteably present –but atheists don’t organize for good works. They may ride the coattails of the gov’t and religious aid groups, but do they initiate great relief movements? I’ve not heard of it.
August 24, 2010, 8:50 pmEric827 says:
It sounds like you would expect any charity from atheists to be done in the name of atheism. Why would atheists donate money in the name of something they don’t believe in? They probably just, you know, donate it, without specifying that they’re donating it out of their lack of belief in any deities.
August 24, 2010, 11:58 pmeyesay says:
Barb, just because you haven’t heard of something doesn’t mean it doesn’t exist.
Just as homophobic attitudes have led many gays to live “in the closet” and not generally reveal that they are gay, anti-atheist attitudes have led many atheists to keep their views secret. Hostility to atheists in the United States is so pervasive that there is only one openly atheist member of the U.S. Congress, Rep. Pete Stark (D-CA). A 2008 Gallup poll showed 6% of Americans not believing in God or a “universal spirit or higher power,” so it is extremely unlikely that only one out of 535 senators and representatives is an atheist. But all of the others besides Pete Stark are closeted, because it’s bad politics in the United States to admit to being an atheist.
If 93% of Americans believe in God or a “universal spirit or higher power,” it’s likely that 93% of the founders of charitable humanitarian organizations do too. Atheists didn’t found a lot of these American-founded organizations because only 6% of Americans are atheists. And of those atheists, a lot of them either keep their atheism to themselves or don’t make a big deal of it, so it’s not surprising that you’ve not heard of any atheist-founded humanitarian charities.
However, there are numerous humanitarian charitable organizations around the world doing great work that were not founded by people motivated by religion, and it is likely that atheists volunteer and give money to these organizations, such as: Doctors Without Borders/Médecins Sans Frontières (“MSF operates independently of any political, military, or religious agendas”); Grameen Bank, Hesperian Foundation. The Grameen Bank was founded by a Muslim, Muhammad Yunus, but the bank has no Muslim agenda; in fact operates in contradiction to the Muslim principle of not charging interest, and bank serves to undermine the authority of Muslim clergy over matters such as the relative power of women and men.
Barb, you have supplied no evidence for the alleged paucity of atheists founding, volunteering for, and donating to humanitarian charities. “I’ve not heard of it” is evidence about you, not evidence about atheists.
August 25, 2010, 1:33 amJ.T. Wenting says:
I’ve always wondered how someone who’s not a fanatical animal “rights” activist and vegan (not just vegetarian) can stomach the kind of things PETA engages in, and can lend their support to the organisation in any way at all.
Same with all radical groups, including religious ones.
Similarly, I would never be able to work for a tobacco company, as I can’t reconsile myself to working towards destroying human life and comfort (especially my own, I’m allergic to tobacco smoke).
August 25, 2010, 2:24 amChris Travers says:
They are parts for Buddhist autos, of course…..
August 25, 2010, 6:21 pmChris Travers says:
Or church-owned cow-based charities?
August 25, 2010, 6:29 pmRichao says:
On the divinity vs. deity question: I don’t know how you avoid affirming the deity of Christ if you affirm the Nicene Creed. What else does “very God of very God” mean, if not that Christ is God, i.e., deity? In the firmly trinitarian Protestant tradition in which I was reared, we looked askance at folks who used the term “divinity” rather than “deity,” to refer to the divine nature of Christ, not because we were closet monophysites but because we suspected that they were trying to downplay the full-throated affirmation of Christ as God that one finds in the Creeds. Whether this was true or not is an entirely different question, but for many evangelicals, this was/is of critical importance.
August 25, 2010, 10:40 pmJohn Pack Lambert says:
NickM,
Actually since Deseret Industries is a wholly owned sub-division of The Church of Jesus Christ of Latter-day Saints it comes under the rules of Amos v. Corporation of the Presiding Bishopric. In that case the Supreme Court upheld religious based regulations on employment as janitors at Deseret Gym owned by the LDS Church.
Deseret Industries has much lesser requirements. I know because as a missionary in Las Vegas I was involved in teaching a DI employee who we were not able to baptize because of two factors that would have caused her being fired from Deseret Gym.
Beyond this Deseret Industries is built around providing job training to people who need it. Some of its programs do not involve stores, but placement of employees in their career goal setting and paying the person’s wages while in that position. I know a man who worked as a photographer with an art museum under this set up.
DI also processes oreders for clothing placed by bishops on behalf of needy people in their ward. This means that some of the clothing is given away and not sold.
I guess one specific question is how precise the entity has to be to get the religious discrimination exemption. The general assumption is that an entire entity is governed under the same rules. This may mean that Deseret Industries as a fully owned component of The Church of Jesus Christ of Latter-day Saints (although I am not sure it is as seperate as that phrase implies) would be granted the conditions of The Church of Jesus Christ of Latter-day Saints, or if it would be a seperate entity.
What is clear is that in the case of Deseret Industries the activities at a particular store, including the Humanitarian Service centers which allow for volunteers to come in and work on clothing sent to disaster relief and other humanitarian aid projects, are not the issue. The issue is the inflow, outflow and other fiscal actions of Deseret Industries as a whole. How much of the system is about selling clothing and other merchandise, and how much of it is about teaching life skills to the trainees.
Many of these same issues would apply to the Salvation Army, including that its stores are only one of its operations.
August 25, 2010, 11:55 pmJohn Pack Lambert says:
Judge Kleinfeld seems to focus mainly on “market rates”. The question of Deseret Industries or Salvation Army is, are they charging market rates?
However, Kleinfeld’s reasoning falls apart when he admits that religious schools can charge market rates and be exempt.
While his argument that non-profit hospitals could too easily fall under the exemption as formulated by O’Scannlain may seem persuasive, and his argument that their is past precedent for “religious” discrimination in hospitals (while failing to examine whether exclusion of Jews is religious or ethnic discrimination) what he fails to explain is why if religious corporations are exempt from the law should this not include non-profit religious hospitals?
Also, the fact he can not cite any actual case since the passing of the 1964 civil rights act that relates to his notions of an under-handed formation of a pseudo-religious hospital suggests that it is a good thing that judges are limited to ruling on cases they actualy get.
The fact of the matter is that Kleinfeld ignores O’Scannlain’s insistance that the institution must hold itself out as religious. This is a much more useful criteria than considering whether the institution charge market rates. Market rates for goods and services are open to a lot of debate in cases like hospitals, second-hand stores and schools. Equally difficult would be figuring out what the market rate for a particular employee is in a given location.
The fact that both judges act as if location is not a factor in what you need to pay a physician is instructive that they do not understand the economics of market rates, and we need a simpler test.
A key factor in the market salary rate is location. Some places people want to live more than others, and some places have a higher cost of living. If you have a high cost of living or a low desirability rating (such as Minot, North Dakota) you will need to pay a doctor more than if you were running a hospital in Mobile, Alabama. On the other hand, if you are running a hospital in San Francisco or Hawaii you may need to pay doctors more just so they can live.
August 26, 2010, 1:05 amJohn Pack Lambert says:
If you merely had to demonstate the religious skills required in a job than the whole religious exemption to Title 7 would be meaningless.
It is established that a church can limit janitors to members of the Church, but no one has argued there is any inherent reason that janitors have to be members of the Church. A Church can not limit janitors to being male, nor can it exclude people on racial or ethnic grounds.
I would say in general a non-profit Buddhist book store that openly advertises itself as a Buddhist bookstore should be allowed to only higher Buddhists by whatever definition it choses (or to fire people who offend it by wearing crosses, but still higher Christians who avoid giving that offense).
The religious atmosphere case is a good one for the Title VII exemption, and if we allow the Title VII exemption for anything we have to allow it totally. Thus, religious organizations have a right to convey their religious message, and the methods they use to do so are within their discretion. If you had a Jewish bookstore, and you wanted your customers to be confortable with the environment, you could fire employees for wearing hijab or crosses, even if you generally permitted Muslims and Christians.
Of course, the O’Scannlain test applies to non-profits. I think the non-profit plus the religious goals in organization plus the open affirmation of religious purpose added together is much simpler than trying to determine if the organizations charges market rates.
August 26, 2010, 1:44 am-Court: World Vision Can Hire or Fire Based on Faith | ANSWERS For The Faith says:
[...] When May Religious Charitable Groups Discriminate in Employment Based on Religion? (volokh.com) [...]
August 26, 2010, 2:59 amRandolph Reynoldson says:
No one seems to be checking out the Bible to see what it says about what a Christian, thereby a christian org.,is supposed to be doing. Most Christian org. use the Bible as their athority or organizational tool. If they are in complience with the Bible then I would say they are acting as a Christian org.
August 26, 2010, 9:31 am