This summer a divided Ninth Circuit held that World Vision, a noted humanitarian organization, could terminate employees on account of their religious beliefs. Although approved for publication, the case offers little guidance because each member of the three-judge panel provided a different analysis for his or her conclusion.
The plaintiffs in Spencer v. World Vision, Inc., available here http://tinyurl.com/268qch6, worked for several years for World Vision in administrative positions: upkeep and maintenance of technology and facilities, miscellaneous office tasks and logistics. When they were hired, they submitted required personal statements describing their “relationship with Jesus Christ.” All acknowledged their “agreement and compliance” with World Vision’s Statement of Faith, Core Values and Mission Statement. In 2006, World Vision discovered that the employees denied the deity of Jesus Christ and disavowed the doctrine of the Trinity. As this was incompatible with World Vision’s doctrinal beliefs, the employees were terminated, and litigation ensued. As is to be expected for a case raising such hot issues, numerous organizations, such as the U.S. Department of Justice, the Christian Legal Society, Alliance Defense Fund, Association for Christian Schools International, etc., appeared as amici curiae.
The Civil Rights Act of 1964 generally prohibits discrimination based on religion but exempts religious institutions as follows:
“This subchapter shall not apply to … 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 corporation, association, educational institution, or society of its activities. ”
The district court granted summary judgment to World Vision, concluding that it was a religious entity within the meaning of the exemption, and the employees appealed. The court of appeals affirmed.
One of the two affirming opinions, written by Judge O’Scannlain, held that World Vision had met its burden of showing that the organization is “primarily religious.” World Vision had contended that its humanitarian relief efforts have religious meaning. The employees claimed that they do not. The Supreme Court has noted that the “prospect of church and state litigating in court what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Inquiry into religious views “… is not only unnecessary but also offensive…. [C]ourts should refrain from trolling through a person’s or institution’s religious beliefs.” Therefore, Judge O’Scannlain refused to make a determination on that issue.
He also noted that asking whether an organization is affiliated with or supported by a “formally religious” entity was as problematic as looking into whether an activity is religious or secular in nature. That is, this analysis would favor institutions which claim a denominational affiliation over those that do not. To deny World Vision the protection of the exemption also could raise serious constitutional questions in favor of houses of worship and against independent groups which are organized for religious purposes and have religious tenets but are not affiliated with any particular congregation or sect. Similar difficulties arise in weighing the religious or irreligious nature of funding sources.
Judge O’Scannlain believed that the appropriate approach to analyzing the issue could be summarized as follows:
”A nonprofit entity qualifies for the…exemption if it establishes that it 1) is organized for self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.”
He preferred this analysis because it centered on neutral factors (i.e., whether an entity is a nonprofit and whether it holds itself out as religious) and requires the court only to evaluate the purpose provided by the organization against its actual practice. As to the nonprofit factor, Judge O’Scannlain relied on the fact that World Vision is a nonprofit entity that the IRS has classified as a 501(c)(3) tax-exempt organization. Even a cursory review of its Articles of Incorporation, bylaws, core values and mission statement reveal explicit and overt references to a religious purpose; clearly, World Vision is organized for self-identified religious purposes. Does the organization engage in activity consistent with, and in furtherance of, those purposes? World Vision emphasized that providing humanitarian aid to all in need, regardless of religious belief, is a tenet of its faith. Judge O’Scannlain refused to limit the exemption to organizations that engage only in proselytizing and limit their activities to members of their religion. Thus, this factor was satisfied. Finally, World Vision’s logo, religious artwork and texts displayed throughout its campus, its Christian Messaging Guidelines and prayer and worship activities all demonstrated overt Christianity.
In concurring, Judge Kleinfeld reached the same legal conclusion via a different analysis:
“To determine whether an entity is a “religious corporation, association, or society;” [the court should] determine whether it is organized for a religious purpose, is engaged in primarily 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.”
Under that test, the concurring judge affirmed the exemption. World Vision is more like the Salvation Army, which gives its homeless shelter and soup kitchen services away, than a religiously affiliated hospital, which charges the market value of its services. Judge Kleinfeld rejected Judge O’Scannlain’s test as too inclusive, i.e., it would “… facilitate free exercise of religion but would also allow people to advance discriminatory objectives outside the context of religious exercise by means of mere corporate paperwork.” He also believed the focus on nonprofit corporate organization was erroneous, noting that many people worship in informal settings and religious activities, such as a religious summer camp, without benefit of corporate niceties.
Judge Berzon dissented. She believed that the tests of both Judge O’Scannlain and Judge Kleinfeld were too broad and would allow a broad range of organizations to refuse to hire and to fire any employee on the basis of religious belief, including organizations that lack any ties to organized religion and perform daily operations entirely secular in nature. Rather, she believed the religious corporation exemption should be interpreted narrowly to include only organizations that exist for the purpose of worship and religious learning. She pointed out that the statutory exemption was one of three exceptions carved out of Title VII for the purpose of accommodating religious freedom. First, courts have carved out a “ministerial exception” in order to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government. Courts must defer without further inquiry to decision-making about who shall be a minister of a church, even if the decision is based on a classification, such as race or sex, otherwise proscribed by Title VII. Second, any organization may, under the bona fide occupational qualification provision, base particular hiring decisions on religious affiliation to the extent required by operational necessity. The statutory exception for religious corporations, according to Judge Berzon, permits organizations exclusively devoted to propagating religion to conduct all their activities within a community composed wholly of coreligionists.
Applying that test, Judge Berzon noted that World Vision’s Christian beliefs are strongly evident in its organizing documents. However, it is not managed, controlled or operated by, or affiliated with, any particular church. It provided no evidence, other than its conclusory statement, that its donors are “committed Christians.” World Vision did not represent that church outreach or other explicitly Christian work comprises the majority of its daily activities.
“Instead, World Vision’s purpose and daily operations are defined by a wide range of humanitarian aid that is, on its face, secular….
…. [D]eeply-held religious beliefs do not, if combined with primarily secular activities, make the organization religious within the meaning of the statute.”
Thus, the dissenting judge concluded that World Vision did not fit within the exception for “religious corporations.”
Judge Berzon believed that her interpretation enhanced the religious freedom of employees:
“Title VII’s prohibition on religious discrimination aims to protect the religious freedom of employees by insulating their religious beliefs from their economic well-being…. [The statutory exception] reflects Congress’s recognition that for a small group of employers – organizations devoted to prayer and religious instruction – the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.
“[The interpretation of] my colleagues … would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self-declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees. The consequence would be a broadened impact on the religious freedom of employees and prospective employees, who would feel compelled to reshape their religious beliefs so as to assure their economic survival.”
No petition for writ of certiorari as of the time of this writing has been filed, but there is still time left for the employees to do so.