Church Discrimination

If there are no limits to the ministerial exception, was Bob Jones wrongly decided?

Churches don’t have to do good to be tax exempt. Most of them do good but that isn’t the reason they are tax exempt. The First Church of Epstein’s Witnesses could be tax exempt. But if we subsidize do-gooders must we subsidize churches’ too when their religious practices do bad? We do not have to subsidize illegal behavior, not even by Epstein’s Witnesses. But what if a church does bad, according to our fundamental or firmly established public policy, rather than our penal code? Must we still subsidize them as we subsidize the rest of Civil Society? I think so, but how far does the rule expand? Are there any limits on that thing?

Benjamin Fleshman, a dashing young scholar at the Becket Fund, has posted his forthcoming new article, Church Autonomy as a Framework for Conditions on Government Benefits. He might just have answers, even if he doesn’t admit it. You can read the abstract and download the article here. I have only skimmed it so far but the table of contents suggests a thorough discussion. I can’t tell whether he addresses the implications on Bob Jones University. I did a word search and didn’t find mention of that case. But are churches entitled to tax exemption and other subsidies even if church doctrine requires them to treat some people as though they are children of a lesser God? Here it is the only part of the article (sans footnotes) I have read closely:

B. Church Autonomy as a License to Discriminate

In a similar (though more specific) vein, the second argument against church autonomy is that the doctrine is essentially a license for religious institutions to discriminate against people based on their sexual orientation, gender identity, race, disability, or any other typically protected characteristic. If we use church autonomy as a framework for public benefits cases, then the government would be forced to fund all kinds of discriminatory behavior with no ability to avoid doing so.

Just as the church autonomy doctrine does not exempt churches from every secular law, the doctrine does not operate as a license to discriminate. Religious institutions generally need to comply with nondiscrimination requirements that do not interfere with their internal religious matters, like they do with any other appropriate condition.

However, as I pointed out above, there are some times when antidiscrimination laws do intrude into areas of church governance that are protected by the church autonomy doctrine. In such cases, the antidiscrimination law would need to yield to the First Amendment, despite the importance and value of antidiscrimination laws. As Paul Horwitz has explained, “[d]eference to self-regulation, though disturbing in individual cases, is justified in light of the institutional … value of church autonomy” and the need to protect the church’s independence from state control.

The Supreme Court has said as much in the ministerial exception context. In Hosanna-Tabor, a unanimous Supreme Court explained that “[t]he interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” Because of the significance of the church’s interest in maintaining its sovereign sphere, “the First Amendment has struck the balance for us.” Thus, even when a minister sues for racial or any other kind of discrimination, the ministerial exception bars the claim outright. That’s because the “purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s alone.”

This same principle of respect for the church’s autonomous sphere is embodied in many of our nation’s existing antidiscrimination laws, several of which contain exemptions for religious institutions. I’ve discussed Title IX already. Both Title VII and the Americans with Disabilities Act also contain robust exemptions for religious employers that allow them to make religiously-rooted employment decisions. These exemptions “are legislative applications of the church-autonomy doctrine” and encompass a similar scope of protection. Many state antidiscrimination laws—both in and out of the employment context—similarly exempt religious institutions from certain provisions in order to protect their religious autonomy. Most of these laws prevent discrimination, even by religious institutions, in the majority of cases. But they also recognize that religious institutions must be given latitude to manage their internal affairs free from state interference, even when the state’s goals are both legitimate and laudable. As these laws demonstrate, we already accept the possibility that religious institutions may make decisions that, in other contexts, civil laws would prohibit because a church’s autonomy over its own internal affairs is “a fundamental part of a legally pluralistic society” that is simply outside the state’s power to regulate. That is no less true in the context of government funding.

The state could not walk into a church and forbid it from preaching or structuring itself around religious doctrine that the state finds offensive. Nor can the state punish the church for adhering to its own doctrine. Withholding access to government programs or benefits based on the church’s theological decisions is as much a punishment as any fine would be. That does mean that there is a chance that program recipients will believe and conduct their affairs in accordance with doctrine that the state does not agree with. But it is not within the state’s power to coerce the church into making different theological decisions.

So far, the law does not tolerate church discrimination when it does not matter for the church. But when discrimination matters, churches may discriminate. A church can discriminate in the hiring of clergy, basically. At that point, the First Amendment takes priority over the Fifth and Fourteenth Amendments. But what are the limits on non-criminal bad things a church can do and still retain tax exemption?

Some on the Supreme Court think it always matters, whether the church is hiring a minister or a janitor. To them, the logical end of the ministerial exception is that a church can discriminate whenever it believes. Based on the excerpt above, I don’t think Fleshman sees are any limits on how much non-criminal “bad” a church can do. To him and some on the Court, a churches’ tax exemption or other government subsidy simply may not be conditioned on a church’s avoidance of public bad. Never.

Which might also mean that Bob Jones was wrongly decided. I am still entirely perplexed by the question.