Can Antidiscrimination Laws Corrupt Religious
Schools?
Wednesday, October 15, 2003
By David E. Bernstein
Editor's Note: The article below is excerpted from the
author's new book, "You Can't Say That! The Growing Threat to Civil
Liberties from Antidiscrimination Laws" (Cato Institute, 2003)
Antidiscrimination laws (search) are colliding with civil liberties
at many levels -- on the job, in public spaces, and on campuses. Left-wing
egalitarian activists are pushing hard to eliminate every perceived slight,
offense, injustice and politically incorrect action they can identify. At
religious schools the conflict is intense, as the examples below show--and
it's sparking more court battles that have yet to settle the
problem.
The First Amendment (search) protects the free exercise of
religion and prohibits governmental establishment of religion. The
Constitution prohibits the government from interfering in the hiring and
firing of ''ministerial'' church employees, including religion teachers at
church-sponsored schools. However, courts have held that antidiscrimination
laws can still regulate the employment of teachers of secular subjects in
religious schools.
One such teacher, Linda Hoskinson, felt a calling to teach in
Christian schools. She found employment as a grade school instructor at
Dayton Christian Schools (search), an affiliate of two of Dayton, Ohio's
strict fundamentalist churches. DCS sought to employ only teachers who would
''carry with them into their classes the religious fervor and conviction felt
necessary to stimulate young minds into accepting Christ as savior.''
Hoskinson seemed to have found her niche.
However, when Hoskinson informed the DCS administration that
she and her husband were expecting a baby, she was told that her contract
would not be renewed. The school's sponsoring churches believe that mothers of
young children should not be employed outside of the home, so continuing to
employ Hoskinson would flout church doctrine.
Hoskinson consulted an attorney, who informed DCS that it was
violating Hoskinson's rights under federal and state antidiscrimination laws,
even though DCS had accepted no government funding. DCS responded by
immediately firing Hoskinson for violating the ''Biblical Chain of
Command (search)," a belief adhered to by some Christian
sects, including DCS's sponsors, that all disputes among members of the church
should be resolved within the church. Like all DCS employees, Hoskinson had
agreed in her contract to abide by the Biblical Chain of Command, but had
broken that agreement when she took her problems with church policy to an
outside lawyer.
Hoskinson filed a sex discrimination complaint with the Ohio
Civil Rights Commission. The commission investigated, and urged DCS to sign a
settlement agreement that stipulated, among other things, that contrary to
DCS's belief in resolving disputes within the church, DCS "shall make clear in
its employment contracts that employees may contact the Commission if they
believe they are being discriminated against at any time."
When DCS received the proposed agreement, it filed a suit in
federal court asking that the court protect DCS's free exercise of religion by
prohibiting the commission from investigating and prosecuting the school. The
court rejected DCS's free exercise claim, reasoning that the commission's
enforcement of Ohio's antidiscrimination law placed only ''a minimal burden''
on the plaintiffs' free exercise rights. No mothers with young children would
be forced to work; DCS needed only to refrain from firing
Hoskinson.
The court did not address the plaintiffs' claim that by
forcing DCS to employ a teacher who disobeyed church teachings, the law
threatened the plaintiffs' ability to impress upon the students the importance
of church doctrine.
Although the court downplayed the importance of the case to
the plaintiffs, it found that the state had a compelling interest in
eliminating ''all forms of discrimination,'' and in preventing young people
from being educated ''in an atmosphere of discrimination.'' An appeals court
reversed the lower court decision, finding that the Commission's investigation
violated the plaintiffs' free exercise rights, and that those rights were not
trumped by the government's interest in eradicating discrimination.
The commission appealed to the Supreme Court. The case divided
liberal civil libertarian organizations. The American Civil Liberties Union
sided with the commission, while Americans United for the Separation of Church
and State supported the school's position. The Supreme Court ultimately
sidestepped the civil liberties issue by reversing the appeals court on the
grounds that the federal courts should not have interfered in ongoing state
proceedings.
Finally, after DCS had spent more than $100,000 defending
itself, Hoskinson dropped her lawsuit. Hoskinson, who in the meantime had
given birth to three children, and who had not returned to teaching, was
unapologetic. She said, "If a person who is in a religious institution cannot
have the protection of the law, then I think we're in for some serious
problems, because if they don't have the protection of the law, there's going
to be a vacuum there they're just sucked into."
Recall, however, that Hoskinson had not been "sucked into"
teaching in a school that taught and enforced conservative Christian values.
She had actively sought out such an environment.
...South Carolina's Bob Jones University, which is famously
sponsored by a strict fundamentalist Christian sect, screens its students for
their religious beliefs to ensure compatibility with the school's mission, and
the university requires all students to conform to a stringent code of
conduct.
Until 1971, the university excluded African American students.
In 1971, the school, under pressure from federal civil rights authorities,
began admitting married African American students. Following a 1975 court
ruling requiring private colleges to admit African Americans, the university
began admitting unmarried African American students as well.
The university, however, contemporaneously banned interracial
dating on penalty of expulsion. The university's founders claimed that the
policy stemmed from a belief that the Bible prohibits interracial marriage,
but others suspected that such explanations were merely a weak pretext for
racial discrimination. And then the tax man got involved.
The IRS revoked Bob Jones' tax-exempt status when it concluded
that the university's ban on interracial dating constituted discrimination in
violation of public policy. The university sued, alleging that because the
university was theologically opposed to interracial marriage, the IRS
revocation infringed on the university's free exercise of religion.
The case reached the Supreme Court, which acknowledged that
IRS denial of tax benefits to universities that discriminated on religious
grounds would "inevitably have a substantial impact on the operation of
private religious schools." However, the Court held that this IRS policy was
constitutionally permissible because the burden on universities was
substantially outweighed by the government's ''fundamental, overriding
interest in eradicating racial discrimination in education.''
The university abruptly gave up its purportedly ''sincere
religious belief'' in banning interracial dating in 2000, after the university
came under withering criticism following a visit by presidential candidate
George W. Bush. Facing a loss of credibility, and possibly revenue, the
university suddenly discovered that its ban on interracial dating was not
theologically required, after all.
... The final outcome of the conflict between civil liberties
and antidiscrimination laws remains unresolved. Meanwhile, the fear of
litigation--fear not only of losing a lawsuit, but also fear of being
vindicated only after a protracted, expensive legal battle--is having a
profound chilling effect on the exercise of civil liberties in workplaces,
universities, membership organizations and churches throughout the United
States.
The author is a professor of law at George Mason
University. The article below is excerpted from the author's new
book, "You Can't Say That! The Growing Threat to Civil Liberties
from Antidiscrimination Laws," (Cato Institute,
2003)