Certainly the state has no business dictating to an organization the criteria for being a Jew (matrilineal; degree of observance; appropriate beliefs; etc) or being of any other faith. The reasoning behind the ministerial exception would preclude such a determination by the state, would it not? How would disputes over religious identity be settled?
On Wed, Jul 23, 2014 at 3:37 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > (A) Say a Jewish religious organization insists on hiring only religious > Jews (even of only slight religiosity), a status that is much easier for > ethnic Jews to acquire than for non-ethnic Jews. Is that covered by the > sec. 702 exemption? > > > Under cases such as Wuerl, the answer appears to be "yes," although I have > some doubts about whether that's correct. > > > > (B) Say a Jewish religious organization insists on hiring > only people that it sees, under the rules of Judaism, as Jewish, whether or > not they believe in God or follow Jewish religious rules. “Volokh, you’re > a very bad Jew,” they tell me, “but you’re a Jew because your mother was > Jewish, and that’s good enough for us to hire you.” Is that covered by the > sec. 702 exemption? > > > Well, it wouldn't be covered by the exemption, because they *hired *you. > But if they *refused *to hire you because your mother was *not *Jewish--even > if you are a perfectly observant Jew -- then I believe governing case law > would say that 702 protects them (although no such cases come to mind right > offhand). > > > > On Wed, Jul 23, 2014 at 6:22 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > >> As I understand it, >> >> >> >> (1) Discrimination based on whether someone is >> *ethnically* Jewish would likely be national origin discrimination under >> Title VII. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756, 758 (D. >> Colo. 1994) (accepting a Title VII claim of discrimination based on "Jewish >> ethnicity"). >> >> >> >> (2) While religious Jews believe that someone can >> convert to Judaism, it takes work -- whereas people like me, who are Jewish >> by birth but irreligious -- can become religious Jews simply by wising up >> and becoming “religious,” whatever exactly that means in the context of >> Judaism. So it’s not quite that they believe non-ethnic-Jews “simply >> cannot be members of” the religion, but it’s much harder for them to become >> members of the religion. >> >> >> >> Two questions: >> >> >> >> (A) Say a Jewish religious organization insists on >> hiring only religious Jews (even of only slight religiosity), a status that >> is much easier for ethnic Jews to acquire than for non-ethnic Jews. Is >> that covered by the sec. 702 exemption? >> >> >> >> (B) Say a Jewish religious organization insists on >> hiring only people that it sees, under the rules of Judaism, as Jewish, >> whether or not they believe in God or follow Jewish religious rules. >> “Volokh, you’re a very bad Jew,” they tell me, “but you’re a Jew because >> your mother was Jewish, and that’s good enough for us to hire you.” Is >> that covered by the sec. 702 exemption? >> >> >> >> Eugene >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Wednesday, July 23, 2014 3:10 PM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: Question about the President's executive order on sexual >> orientation discrimination >> >> >> >> 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 >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> >> ------------------------------ >> >> >> This message and any attachments are intended only for the use of the >> individual or entity to which they are addressed. If the reader of this >> message or an attachment is not the intended recipient or the employee or >> agent responsible for delivering the message or attachment to the intended >> recipient you are hereby notified that any dissemination, distribution or >> copying of this message or any attachment is strictly prohibited. If you >> have received this communication in error, please notify us immediately by >> replying to the sender. The information transmitted in this message and any >> attachments may be privileged, is intended only for the personal and >> confidential use of the intended recipients, and is covered by the >> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. >> >> In accordance with Internal Revenue Service Circular 230, we advise you >> that if this message or any attachments contains any tax advice, such tax >> advice was not intended or written to be used, and it cannot be used, by >> any taxpayer for the purpose of avoiding penalties that may be imposed on >> the taxpayer._______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.