I'm not sure that Marty and Nelson are disagreeing with Eric at the bottom
line. Eric writes that "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."
So here's my question for Eric or anyone else (and this is the question
that one can easily imagine being at the cutting edge): Under the Exec
Order, as now amended, may a religious organization that offers
family/spousal benefits to employees refuse to pay such benefits to an
employee with a same sex spouse (in a marriage recognized as lawful by the
relevant state), on the ground that the employer (on religious grounds)
does not recognize the validity of the marriage? I say no, because there
is no "behavioral standard" that is being applied evenhandedly. (If there
is, please explain what it would be, and how it would be applied and
enforced even-handedly -- that is, not based on sex or sexual orientation.)
On Wed, Jul 23, 2014 at 2:40 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>*
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> *Lewis Roca Rothgerber LLP |*
> *90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662*
> *(T) 719.386.3017 | (F) 719.386.3070*
> *eknif...@lrrlaw.com <eknif...@lrrlaw.com>** | www.LRRLaw.com
> <http://www.lrrlaw.com/>*
>
> *<image002.jpg>*
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>
>
>
>
>
> *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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--
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
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