The First Amendment, Employment Law, and the Regulation of Religious Institutions

May-June 1996

By Julia K. Stronks

SPOKANE, Washington—[In this monograph in the Crossroads series on faith and public policy, Julia Stronks, a political science professor at Whitworth College and an associate of the Center for Public justice, examines employment rules in order to illustrate the problems of current church-state jurisprudence and to propose a better approach, one based on a pluralist understanding of religion, society, and government. Crossroads is a program of Evangelicals for Social Action, supported by the Center for Public justice, which aims to encourage biblical reflection on public policy by Christian graduate students and professors. Dr. Stronks's monograph is vol. 1, no. 4, in the Crossroads series, and can be ordered for $5.00 from Crossroads, ESA, 10 Lancaster Ave., Wynnewood, Pennsylvania 19096; 610-645-9399.—Eds.]
 

In the United States, the legal relationship between the state and religious institutions is fraught with confusion. The First Amendment says that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." Christians and other members of religious communities believe this means that they ought to be able to define their religious institutions in a manner that best reflects their faith. But does the government have no interest in or authority over those institutions? When and how is it legitimate for a state to regulate a religious institution?

Current public law manifests major contradictions concerning the nature of religion and the requirement of government neutrality toward religion. For example, if an organization asserts that its religious mission requires faith-based preferences in employment decisions, it will discover that the Civil Rights Act's prohibitions against religious discrimination appear to conflict with the First Amendment's religious freedom guarantee. Legislative and judicial assertions that religion can and must be excluded from the public sphere ignore the all-encompassing nature of religion. When an employer believes that his or her religion prohibits the hiring of people from outside that faith, the government's insistence on nondiscrimination becomes a religious statement for that employer. The government's position reflects a fundamental belief sanctioned by majority consensus; it is not religiously "neutral." But in a conflict between a religious employer's belief system and the belief system defended by government, who should win?

The dilemmas that American courts face in protecting religious interests is due only in part to unquestioned assumptions about religion. Judges' decisions and the Civil Rights Act's anti-discrimination rules manifest internal tensions, but organizations that claim to be religious cannot escape responsibility for their part in the jurisprudential confusion. Churches, church-related organizations, and religious businesses claim the right to make employment decisions without regard to some of the requirements set forth in public law. They base this right on the First Amendment. Yet no matter how religion is defined or protected, in some cases the public authorities will be required to limit the expression of religion. If, for example, a religion's precepts hurt children, or prevent citizens from participating in the defense of a country, or deceive the public, or discriminate against women, government cannot remain unconcerned and uninvolved. But how can it properly balance these harms against the importance of freedom of religion?

Substantive conflicts at the core of judicial decision making are reflected in current case law concerning religion and employment. Most of the cases illustrate the inherent conflict between the idea that if something is religious it should be beyond the reach of government control and the reality that religion affects much of life and necessarily has a real, social presence. A tension thus exists between government's desire not to become entangled in the fundamental choices that people make in directing their lives and government's responsibility, as part of its public justice obligation, to be involved in social life.

If a religious institution regards an action to be critical to its identity and purpose, then the presumption must be that the act should be protected. Lawmakers and judges are then limited to two roles: first, they may probe the sincerity with which the institution has asserted its religious identity; second, under the stringent compelling interest standard, they may restrict actions which would harm other institutions or individuals.

Churches, church-owned organizations, and other faith-based institutions ought to be allowed to hire employees in accordance with their self-professed identity, but they should also be held accountable for their decisions. When the actions of faith-based institutions intrude on the ability of individuals and other institutions in society to fulfill the role to which God has called them, government may legitimately limit their liberty.