Free exercise extravagance

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The United States Court of Appeals for the Third Circuit last week refused to disturb a panel opinion in Petruska v. Gannon University (Sept. 6, 2006), which crowned religious organizations with a constitutional right to practice racial, gender or national origin discrimination in hiring persons to espouse their creed. The ruling contributes to a rising tide of extravagant interpretations of the Free Exercise Clause of the First Amendment to defeat secular laws. They are second cousin to the belief that to teach Darwinism is sacrilegious. They should be repudiated by the United States Supreme Court.

The Free Exercise Clause declares that "Congress shall make no law ... prohibiting the free exercise [of religion]." The prohibition was not intended to create religious enclaves free from evenhandedly applied secular laws. Otherwise, chaos and convulsions would be threatened.

Congress banned polygamy when the practice was a central tenet of the Mormon religion. The Supreme Court sustained the constitutionality of the criminal prohibition in Reynolds v. United States (1878). The defendant proved that he was a member of the Mormon Church; that he was a believer in its doctrines; that it was an accepted precept of the Church, fortified by books thought to be of divine origin, that male members were saddled with a duty to practice polygamy; and, that a failure or refusal to do so would be punished by damnation in the life to come. Chief Justice Morrison Waite denied that the Free Exercise Clause was transgressed by the defendant's conviction.

The chief justice reasoned that, "Congress was deprived of all legislative power over mere opinion, but was left free to reach activities in violation of social duties or subversive of good order." He added: "To permit [a religious motivation to justify non-compliance] would be to make professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Associate Justice Antonin Scalia endorsed Reynolds in Employment Division v. Smith (1990) in denying the religious use of peyote a Free Exercise Clause exemption from Oregon's anti-drug laws.

Congress outlawed employment discrimination based on race, sex, national origin or religion in Title VII of the 1964 Civil Rights Act to promote equal opportunity and to avert social strife. Title VII culminated a prolonged and bloody civil rights struggle that vivified the divisions and subservience wrought by invidious employment practices. The landmark statute might be styled the Magna Charta of civil rights.

It scrupulously honors religious freedom. Title VII authorizes religious entities to make employment decisions based on an individual's religious preference. Thus, religions are entitled to insist that their missions be executed by genuine adherents. But they are not permitted to practice racial, gender or national origin discrimination.

In Gannon University, the Third Circuit preposterously held that Title VII unconstitutionally intrudes on the Free Exercise Clause, a conclusion that invites segregated religious institutions reminiscent of Jim Crow. Gannon is a private Catholic diocesan college. It hired Lynette Petruska as the university chaplain. She brought suit under Title VII alleging that Gannon demoted and constructively discharged her because of her gender and opposition to sexual harassment at the university. The complaint did not question Gannon's right to demote or to discharge based on religious insincerity or ineptness in proselytizing Gannon's spiritual message.

The Third Circuit affirmed the dismissal of Ms. Petruska's Title VII claims. It declared that Congress is prohibited by the Free Exercise Clause from protecting against invidious employment discrimination by religious organizations for positions whose primary duties include "teaching, spreading the faith, church governance, supervision of a religious order, or supervision of participation in religious ritual and worship." The court added: "[A]ny restriction on the church's right to choose who will carry its spiritual message necessarily infringes upon its free exercise right to profess its beliefs."

That argument is absurd. To prohibit a church from refusing to hire or to discharge an individual performing a spiritual function because of that individual's race, gender or national origin leaves a church free to insist that its spiritual message be delivered by true or charismatic believers. And if a church's doctrine requires racial, gender or national origin discrimination, the Reynolds and Smith precedents make clear that Congress may prohibit religions from practicing tenets that violate legitimate and evenhandedly applied secular statutes, like Title VII. If Mormons could be criminally prosecuted for following a central Mormon belief thought necessary to avoid eternal damnation without upsetting the Free Exercise Clause, then surely a church may be held civilly liable for adhering to a doctrine that runs afoul of a generally applicable civil rights statute. The Supreme Court enlisted similar reasoning to sustain Bob Jones University's loss of a tax exemption because of its ban on interracial dating.

The Gannon University decision forgot that all constitutional rights are matters of degree. The Free Exercise Clause is no exception.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.