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Religious Discrimination

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Do churches and other religious organizations have the right to discriminate? Even advocates of discrimination laws in general are usually willing to make an exception for churches and religious organizations to practice discrimination in employment based on religious creed, sex, marital status, or sexual orientation.

Thus, a church of a particular denomination is free to limit offers of employment to ministers of that particular denomination and discriminate against all others; a church that considers homosexuality to be a sin is free to hire only heterosexuals and discriminate against homosexuals; a church that believes in having only men in leadership positions is free to hire only men and discriminate against women; and a church that believes in having an unmarried priesthood is free to employ as priests only those who are unmarried and discriminate against those who are married.

Regardless of our personal feelings about religion and morality, that is what we expect. That is, we expect a Jewish community center to be staffed by Jews, we expect a Catholic mass to be said by an unmarried male priest; we expect the minister of a theologically conservative church to be a heterosexual; we expect a Baptist church to be pastored by a man who is a Baptist; and we expect a Christian school to have Christian teachers.

Yet a Christian school in Thousand Oaks, California, and two former teachers are fighting over that very point.

Calvary Chapel, a Christian church in Thousand Oaks, purchased the previously secular Little Oaks School in 2009. According to the Ventura County Star,

While the vast majority of religious schools are nonprofit and tax-exempt, church leaders said they organized Little Oaks as a for-profit because they were on a tight deadline. They said forming a tax-exempt corporation is a lengthy process. They said the school is operated not as a profit-generating entity but as a spiritual arm of the church. Its students include about 130 children in preschool through fifth grade.

In 2012, the church requested from all employees a statement of faith and a reference from a pastor in order to have their contracts renewed. Two teachers, Lynda Serrano and Mary Ellen Guevara, refused to provide the documents and lost their jobs.

“We’re a Christian school,” said the Rev. Rob McCoy, pastor of the church and headmaster of the school. “We were coming to the point where we were establishing a Christian curriculum. We wanted to make sure teachers subscribed to that faith.”

The teachers retained a law firm in Los Angeles and were prepared to sue, but asked for $150,000 apiece from the school to settle the case. “They did not believe they should be required to obtain a pastoral reference in order to continue their employment,” their attorney wrote in a letter to the church.

The church and school say their right to hire teachers who share their beliefs is protected by civil rights laws, the U.S. Constitution, and the California Constitution, which says in its Declaration of Rights in Article I,

SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

The teachers cite the California Fair Employment and Housing Act, which, although it has some religious discrimination exemptions, supposedly don’t include for-profit religious groups.

But instead of settling, church and school leaders filed their own lawsuit in U.S. District Court seeking an injunction to prevent the teachers from filing their lawsuit in a different venue because they wanted to make sure litigation took place in federal court. Their suit alleges that the Fair Employment and Housing Act is unconstitutional when used to restrict a religious school’s hiring practices, even if the group is for-profit.

The lawyers for the teachers maintain that the “Fair Employment and Housing Act has been upheld in hundreds of cases in state and federal courts.” They described the school’s lawsuit as a desperate attempt to “avoid the consequences of their illegal and discriminatory practices.”

But the lawyer representing the church and its school believes “the question is ultimately, do the nondiscrimination rights of the teachers under state law trump the religious rights of the school under federal law?”

There is no question that California’s Fair Employment and Housing Act outlaws discrimination in employment as a matter of public policy:

12920. It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general. Further, the practice of discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations is declared to be against public policy.

It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices.

This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.

Therefore, according to section 12921(a), “The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation is hereby recognized as and declared to be a civil right.”

But there is also no question that the Fair Employment and Housing Act contains a religious exemption: “12922. Notwithstanding any other provision of this part, an employer that is a religious corporation may restrict eligibility for employment in any position involving the performance of religious duties to adherents of the religion for which the corporation is organized.” And, as it states in section 12964(b)(5)(j)(4)(B), “Notwithstanding subparagraph (A), for purposes of this subdivision, ’employer’ does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2” (which has to do with religious entities that operate health-care facilities that are not restricted to adherents of the religion that established the entity).

The problem is that a religious organization not organized for profit (Calvary Chapel) operating something as a for-profit entity (Little Oaks School) is not something that was envisioned by the writers of the California Fair Employment and Housing Act.

But there is an even bigger problem here: the folly of discrimination laws in the first place.

First of all, if discrimination is wrong; if discrimination is bad; if discrimination is mean-spirited; if discrimination is hateful; if discrimination is bigoted; if discrimination is immoral; if discrimination is racist, sexist, xenophobic, and homophobic; if discrimination “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general,” then it doesn’t suddenly cease to be or do those things because the entity doing the discriminating is religious instead of secular, or nonprofit instead of for-profit.

Second, it would be madness for employers not to discriminate in hiring. People with physical disabilities are discriminated against by owners of coal mines. People without accounting experience are discriminated against by owners of accounting firms. People without a driver’s license are discriminated against by owners of taxi companies. People without typing skills are discriminated against by executives looking for secretaries. Any company that requires a college degree is discriminating against those without degrees.

Third, “discrimination” is not a dirty word. Discrimination is not necessarily something bad. Discrimination is not something inherently evil. To discriminate is simply to distinguish, differentiate, or make a distinction. Discrimination involves choosing between or among options. We used to say that a man had discriminating taste.

Fourth, to discriminate against someone is not an act of aggression against him. The underlying premise of libertarianism is the nonaggression principle; that is, it is wrong to threaten or employ violence against someone unless in defense of one’s person or property. No one of any race, religion, sex, color, national origin, or sexual orientation has the right to be employed by anyone else. Not hiring or not promoting someone on the basis of any of those things — however undeserved or irrational it might be — is not aggressing against him.

And fifth, to outlaw discrimination is to outlaw freedom of thought and freedom of association. Every man has the natural right to think or not to think whatever he wants about any other man. Every man has the natural right to associate or not to associate with any other man who is willing to associate with him. It doesn’t matter if those decisions are or are not based on someone’s identification with a group. It doesn’t matter if the decisions are unwise, unreasonable, or ridiculous. It doesn’t matter if they are based on prejudice, bigotry, or racism. Every free man has the right to think or not think what he wants about anyone else and associate or not associate with anyone else on any basis and for any reason. At least in a free society he does.

A free society must be free of discrimination laws altogether, not just laws without exceptions for religious discrimination.

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