Sorry, that was too flip:
Obviously, if a religion literally excludes, or excommunicates, persons of
a particular protected class, such as blacks, then perhaps black people
would literally not be "of [that] particular religion" and the 702
exemption by terms would kick in. But that scenario-- highly unlikely ever
to occur, and probably not contemplated by the legislators-- would be
directly contrary to the understanding in the Senate Managers'
section-by-section analysis, which has longed been respected as
authoritative w/r/t 702 (see page 31 of the 2000 OLC opinion).
I trust we will not see a case such as that -- where a contractor claims
that gays or blacks simply cannot be members of his church -- but if and
when we do, I suppose it will be just another one of those cases in which
we'd need to ask whether clear legislative intent trumps a statutory lacuna
in an unlikely situation that the legislators could not have specifically
imagined.
On Wed, Jul 23, 2014 at 5:59 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:
> no and no
>
> That was an easy test!
>
>
> On Wed, Jul 23, 2014 at 5:51 PM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
>> Here's a test case. A religious organization only allows members of one
>> race to be members, based on its view that God rejects all others. It then
>> hires only "co-religionists." Does that fall within the exemption under
>> Title VII? Under the EO?
>>
>> Mark
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>>
>>
>> Sent from my iPad
>>
>> On Jul 23, 2014, at 2:43 PM, "Nelson Tebbe" <nelson.te...@brooklaw.edu>
>> wrote:
>>
>>
>>
>>
>> I think Marty has the better argument here. The exemptions to the EO and
>> Title VII allow certain religious organizations to favor co-religionists in
>> hiring, but that exemption does not allow them to discriminate on
>> prohibited grounds, even if they do so based on religious belief. *Boyd*
>> is not to the contrary -- that case involved discrimination based on
>> religiously-prohibited conduct, namely sexual activity outside marriage,
>> not discrimination on the basis of sex. Similarly, *Little v. Wuerl*
>> involved someone who was fired for a divorce and remarriage, not for being
>> a woman (rather than a man) who divorced and remarried (outside the rules
>> of the faith).
>>
>> Cases where the religious organization wanted to discriminate on
>> prohibited grounds, even pursuant to a religious belief, have come out the
>> other way. See, e.g., EEOC v. Fremont Christian Sch., 781 F.2d 1362,
>> 1364-67 (9th Cir. 1986) (church owned school violated Title VII by
>> providing health insurance to married men but not married women, even
>> though such discrimination reflected a religious belief that only married
>> men can be heads of households).
>>
>> Now that sexual orientation is a prohibited ground under the EO, a
>> religious organization could not discriminate on the basis of sexual
>> orientation even for religious reasons. Nor could it discriminate on the
>> basis of activity that is correlated with sexual orientation, I would
>> think. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (O'Connor, J.,
>> concurring) ("“[T]he conduct targeted by this law is conduct that is
>> closely correlated with being homosexual. Under such circumstances, [the]
>> law is targeted at more than conduct. It is instead directed towards gay
>> persons as a class.”); Elane Photography v. Willock, 309 P.3d 53, 61 (N.M.
>> 2013). ("[t]o allow discrimination based on conduct so closely correlated
>> with sexual orientation would severely undermine the purpose of [New
>> Mexico’s antidiscrimination law]."). I admit there is room for argument in
>> the cases on this point, though, and we can expect litigation on it.
>>
>> Nelson
>>
>> On Jul 23, 2014, at 4:48 PM, Kniffin, Eric N. <eknif...@lrrlaw.com>
>> wrote:
>>
>> Marty is correct: Monday’s executive order leaves Section 204—the
>> religious exemption Bush added in 2002—as is. The tweaks to the existing
>> order are minor: in the only four places where the phrase “sex or national
>> origin” appears (three times in 202 and once in 203), that phrase is
>> amended to read “sex, sexual orientation, gender identity, or national
>> origin.” That’s it.
>>
>> However, I take issue with Marty’s statement that Title VII and the
>> executive order do not “give the organization the right, even on religious
>> grounds, to discriminate on the basis of sex, or race, or sexual
>> orientation. . . .” That’s not the law. Marty’s linked text (p.32) cites
>> *Boyd v. Harding Acad. of Memphis, Inc.*, 88 F.3d 410 (6th Cir. 1996),
>> where a court upheld a religious school’s decision to fire an unmarried
>> pregnant teacher.
>>
>> The school won because the term “religion” in the Title VII is
>> interpreted broadly, to include “all aspects of religious observance and
>> practice, as well as belief.” 42 U.S.C. § 2000e(j). This allows a
>> qualifying religious entity to evaluate employees based not only on what
>> they believe, but also whether they act in conformity with those beliefs.
>> *See Hall v. Baptist Mem’l Health Care Corp*., 215 F.3d 618, 624 (6th
>> Cir. 2000); *Little v. Wuerl*, 929 F.2d 944, 951 (3d Cir. 1991). Thus,
>> the “religion” exemption protects a religious organization’s right to
>> exclude employees based on conduct that both (1) expresses one’s sexual
>> orientation and gender identity and (2) violates the church’s moral
>> teachings.
>>
>> Practically speaking, such organizations have to answer plaintiffs’
>> charges that the adverse decision was not based on “religion” but on
>> prohibited bases. That is why religious employers should be prepared to
>> demonstrate that they have applied behavioral standards evenhandedly. For
>> example, the court in *Boyd* might well have upheld the pregnant
>> teacher’s sex and pregnancy discrimination if the school had not been able
>> to show that it had previously fired male and female employees for
>> premarital sex, even when no pregnancy resulted. 88 F.3d at 412, 414.
>>
>> Eric
>>
>> *<image001.gif>*
>> *Eric N. Kniffin, Of Counsel*
>> *Lewis Roca Rothgerber LLP |*
>> *90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662*
>> *(T) 719.386.3017 <719.386.3017> | (F) 719.386.3070 <719.386.3070>*
>> *eknif...@lrrlaw.com <eknif...@lrrlaw.com>** | www.LRRLaw.com
>> <http://www.lrrlaw.com/>*
>>
>> *<image002.jpg>*
>> *Rothgerber Johnson & Lyons LLP is now Lewis Roca Rothgerber LLP.*
>>
>>
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [
>> mailto:religionlaw-boun...@lists.ucla.edu
>> <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty Lederman
>> *Sent:* Wednesday, July 23, 2014 1:11 PM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Question about the President's executive order on sexual
>> orientation discrimination
>>
>> I don't think that's right, Eugene. Or, more to the point, you are
>> correct that the sec. 204 exemption is not "extended" to sexual
>> orientation discrimination proscribed in sec. 202 -- but that that's
>> true, as well, for all other forms of forbidden discrimination, and
>> retaliation, that are proscribed in section 202 of the E.O. *except the
>> prohibition on religious discrimination. *That is to say: The 204
>> exemption is only a partial exemption from the ban on religious
>> discrimination, allowing certain contractors to prefer coreligionists even
>> if that would otherwise violate the ban on religious discrimination.
>>
>> The exemption - both in 204 and in title VII -- does not give the
>> organization the right, even on religious grounds, to discriminate on the
>> basis of sex, or race, or sexual orientation, or the fact that an employee
>> sued to vindicate one of those protections, etc.
>>
>> See pages 30-32 of http://balkin.blogspot.com/olc.charitablechoice.pdf
>>
>>
>> On Wed, Jul 23, 2014 at 12:51 PM, Volokh, Eugene <vol...@law.ucla.edu>
>> wrote:
>> My apologies if I missed this in past list traffic on the
>> subject, but I just wanted to check my understanding: As I read it, under
>> an existing executive order,
>> http://www.dol.gov/ofccp/regs/statutes/eo11246.htm, federal contractors
>> can’t discriminate based on race, color, religion, sex, or national origin,
>> but religious institutions are exempt from the ban on*religious
>> *discrimination,
>> when it comes to discriminating in favor of “individuals of a particular
>> religion” (sec. 204). The President’s new executive order,
>> http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen,
>> bars federal contractors from discriminating based on sexual orientation
>> and gender identity, but does not extend the sec. 204 exemption to sexual
>> orientation discrimination. One argument against this order is (in effect)
>> that sexual orientation discrimination should be treated more like
>> religious discrimination (in the sense of being exempted when done by a
>> religious institution) than like race discrimination (which is not exempted
>> even when done by a religious institution).
>>
>> Do I have *the facts *right on this? I’m setting aside here what the
>> right answer ought to be; I just want to make sure I’m not misunderstanding
>> the legal scheme. Thanks,
>>
>> Eugene
>>
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