Feature

Liberty or Liability: The Future of Institutional Religious Freedom

December 22, 2010 - Stanley Carlson-Thies

The question of institutional religious freedom concerns whether communities of faith are free not only to worship as they are convinced is right, not only to believe as they feel compelled, but also to serve their neighbour as they regard themselves to be called. Though I serve in Washington D.C., I believe similar troubling institutional religious freedom trends exist in many Western nations.

Let me name a few. First is a widening gap between many of the virtues or norms held to be true by historical religions and the behaviour and values praised by culture-shaping progressive forces. Second, there is increasing government imposition of sweeping requirements and prohibitions on private behaviour and private organizations—thus imposing on everyone the convictions of a part of society. And, third is a trend to privatize religion: to protect in law religious belief, but not faith-shaped action in society; to protect worship and religious instruction, while insisting that religious action out in the world can fairly be subjected to standards other than those of the religion.

The outcome of these trends, I believe, is a continuous decrease in parachurch organizations' freedom to live by standards for their internal life and their external service that diverge from the society's consensus. The Christian Horizons decision is an example, I believe, of a troubling trend to constrict institutional religious freedom. Before I analyze what I think is at stake in that decision and suggest how faith communities might respond to it, I will first lay a foundation by discussing what institutional religious freedom is and why it is important—not only to believers, but to society in general.

But even before that analysis, I would like to begin with a bit of history—American history. As you know, the Christian Horizons case, and much of the controversy about institutional religious freedom, concerns so-called employment discrimination: when and on what basis a private employer may use religious criteria in making employment decisions, in deciding both who to hire and who to fire when no longer a suitable employee. In the United States, the national job discrimination standards were first formulated in the 1964 Civil Rights Act, then further refined in 1972 amendments. The Civil Rights Act has a special section—Title VII—that set out, for the first time, national standards about illegal job discrimination.1

The Civil Rights Act was a milestone in American life, for America has a long and shameful history of government-enforced racism and even government-endorsed violence against black people. The Civil War ended the institution of slavery. And yet racial discrimination, abetted and enforced by government, continued on for many decades. And then, thank God, a movement of courageous individuals and brave organizations challenged this tragic government-supported evil of unjust treatment of black persons. The civil rights movement demanded that government and society treat everyone rightly—each individual as a person of dignity, with no one valued more than another because of skin colour, or national heritage, or some other irrelevant characteristic.

The Civil Rights Act put American government on the side of suppressing, rather than supporting, unjust discrimination. It prohibited wrongful discrimination in employment not only on the bases of race and colour, but also on the bases of sex, national origin, and religion.

Religion is central to the civil rights movement not only in this way—i.e., bringing the federal rule forbidding job discrimination based on religion—but also as a powerful motivating force and source of values.2 The civil rights movement was a campaign about the dignity of every person as made in God's image. It was filled with religious imagery and many of its visible leaders and unseen foot soldiers were people of faith. It is no accident that the great leader, the Rev. Martin Luther King, Jr., was a pastor steeped in the Bible.

I will stop the history there, for now. Keep a number of points in mind. For one, the great Civil Rights Act outlawed job discrimination not only on the basis of race but also religion—but what, then, of religious organizations that, quite naturally, desire to consider, not ignore, the religion of applicants and employees? Also, in this mighty and righteous and acclaimed movement for change in society, religion was the central force—religious leaders, religious convictions. And then this: in this story of moral renewal, private prejudice and discrimination had to be overcome, to be sure, but a great target was the government. The government had to be turned from indifference or even support of discrimination to working to end unjust treatment. Religion here provided the ideas and leaders and masses and organizations to challenge a government policy that was wrong, not right.

Returning to institutional religious freedom: Our focus is not on religious freedom for individuals or for churches and pastors. Religion, for all major faiths, is not only a matter of individuals and worship. It is also a matter of service to others through organizations—we can call them faith-based organizations or parachurch organizations. Religious schools, homeless shelters, health clinics, group homes, and so much more are the hands and feet of faith out in society—the structures through which believers offer a cup of cold water as well as a witness to God.

By institutional religious freedom, I mean to emphasize the legal space that such parachurch ministries require in order to maintain their religious identity, to carry on an inner life that is marked by their religious convictions, and to serve the public in a way that is shaped by those religious convictions. Institutional religious freedom is the freedom a faith-based organization requires to be faithful—to be conformed to the norms of the religion, even when those norms differ from the society's values that the government desires to enforce. This is a vital freedom if an organization is to be faith-full, full of faith—to be marked by faith in its operations, and not just its name or heritage. Robust protection of that freedom to be different is vital in our era.

Why should institutional religious freedom be protected? Why should government protect the ability of religious organizations to act in ways that the society has decided are not right? Why protect their deviant views and actions? Why protect their conviction not to offer certain medical procedures that the government has declared to be legal? Why protect their insistence on considering religion when evaluating job candidates?

Here, in brief, are four reasons. First, as I have already suggested, parachurch organizations are a major avenue through which religious believers live out their faith. If religious believers are to live faithful lives, their organizations need to be able to follow those religious convictions, even when the convictions lead to a different place than the government may desire.

Second, and closely following: for a nation actually to manifest its professed commitment to religious freedom, it must protect both worship and faith-based service, not only in the church but also in the parachurch—exactly because so much of religion takes place outside of the church in faith-based health, education, and social service organizations.

Third, institutional religious freedom is good for society because faith-based organizations contribute much to society, even in a welfare state. But that flourishing contribution will wither if parachurch organizations are hampered by being required to suppress their religion. Want the good works? Then protect the religious roots!

And fourth, it is vital for the nation that there be checks on the government, because government is not always right—and may be seriously wrong. The needed creative alternatives exist in a thriving civil society, a culture with institutions that can dissent from the society's—and governments'—popular views. A thriving civil society is one with strong and independent organizations that can protect and promote views that are unpopular, but may turn out to be right. To keep a necessary check on government, society needs alternative moral voices, and those voices will only exist if their institutional framework is protected.3

Recall the American civil rights movement, in which individuals who were backed by organizations were able to think different thoughts and put into action powerful and persuasive (and non-violent!) challenges to the government, and thus correct the government's injustice. Government is not infallible. It often needs correctives. Those correctives need a social underpinning. Protecting free speech and associational rights and religious freedom are all ways of making possible real alternatives to the government's ideas—which might be deadly wrong ideas.

For at least these reasons governments should protect, not suppress, institutional religious freedom. It should protect the ability of parachurch organizations to operate differently than secular organizations. And one of the most important freedoms is for a parachurch organization to be able to use religious criteria in deciding who to hire and who to fire. I know that this practice—which critics claim is merely an unjust freedom to engage in immoral religious job discrimination—is controversial. And yet, although their specific practices differ widely, many religious organizations take account of religion when selecting their staff.

Why is this so? Ask a politician who is dead set against religious hiring just how many people of an opposing political ideology her office should be required to hire. Should an NDP M.P. be required to ignore the fact that the eight years of policy experience the job candidate has amassed were all gained by working for a Conservative or Liberal policy group? Should a pro-choice clinic be required to hire pro-life staff members? Must an environmental group pick a climate-change denier as spokesperson? Nobody thinks so. Nor does anyone believe that a Catholic church must hire a rabbi as its new minister simply because the rabbi has the most years of education and the most worship experience.

What then of a Jewish day school, or a Catholic adoption agency, or a Muslim outreach to new immigrants, or an evangelical Protestant residential facility for disabled adults? As the saying goes, personnel is policy: those who make and those who carry out the decisions determine what, in fact, the organization stands for. Organizations, whether religious or secular, must be sure that the people making and carrying out decisions are committed to the mission and values of the organization.

Surely that is so with parachurch organizations. Religion is more than words—it is actions. It should shape the relationships within the parachurch ministry, as well as the ways it serves those who turn to it for assistance. Moreover, faith-based organizations, which are expressions of faith communities and dependent especially on those communities for donations and volunteers, are rightly concerned to display and embody the convictions of those originating communities.

In short, religious hiring by religious organizations is not invidious and mystifying and immoral. Instead, it is natural, necessary, and logical. It should be protected, not suppressed.

What then of the Christian Horizons decisions, which concerned hiring and firing based on religion? I will not examine the details, but will focus on part of the Ontario Division Court's decision last May4, a troubling and dangerous decision that incorporates an unsustainable contradiction and validates unjust governmental interference with religious practice.

Christian Horizons is a large network of evangelical Christian residential homes that serves people with developmental disabilities. Staff members agree to a statement of Christian belief and conduct. It receives a great deal of government money to carry out its services, although the government money was not a factor in the court decisions. There were two decisions: a ruling by the Ontario Human Rights Commission against Christian Horizons, and then a ruling by the Ontario Divisional Court that partly favoured Christian Horizons and partly went against it.

All of this started with a Christian Horizons support worker who, going against the lifestyle statement to which she had agreed, entered into a same-sex relationship. She was offered counseling and later disciplined for allegedly harassing a fellow worker, and she resigned. She then filed a complaint, claiming discrimination based on sexual orientation and a negative work environment.

The Human Rights Tribunal claimed that Christian Horizons could not legally have a religious employment policy because, as an organization that serves people of all faiths and not just evangelical Christians, it was not an exempt religious organization. Fortunately, the Ontario Divisional Court rejected that argument. Just imagine if a parachurch ministry was allowed under the law to follow religiously based policies only if it first agreed to violate Jesus' teaching that the neighbour who should get our help is every person who needs our help—whether the person is of our own faith or not!

Instead, the Ontario court ruled that Christian Horizons is in fact an organization that is legally free to make employment decisions based on religion. However, applying the law, the court also said that this was not a blanket permission: rather, for each job, Christian Horizons must demonstrate how religious behaviour is necessary, and thus how religion constitutes a bona fide occupational qualification (BFOQ) for that specific job. Christian Horizons claimed that religion was an authentic qualification for every employee, since every employee must hold evangelical Christian convictions and live the corresponding lifestyle. But the Court disagreed. In its view, it was not a reasonable requirement for a support worker to have to follow the organization's lifestyle requirements. Christian Horizons had not shown that her job was in fact a job for which religion was relevant. Thus Christian Horizons was not free to impose the religious requirement on her.

I believe there is a tension, a contradiction, in the Court's ruling. Didn't it rule one thing and then rule something else that conflicts with the first ruling? Christian Horizons as an organization is exempt from the law's requirement that employment decisions must ignore religion, and yet it must prove that religion is relevant to each specific job position.

Indeed, there is a tension. I would like to bring it into relief and to explore its negative consequences by briefly discussing the religious employment requirements of America's 1964 Civil Rights Act, in its Title VII, as I mentioned earlier. Title VII originally had a requirement very similar to what the Ontario Court required in its Christian Horizons decision, but that requirement was overturned.5 Why it was changed may be, I believe, instructive also for Ontario and Canada.

Title VII was intended to ban, at long last, unjust discrimination by private employers in the United States. This was a major step: to put aside America's discriminatory past by requiring employers to set aside prejudice based on race, colour, religion, and so on, and to hire the best candidate for a job. And yet everyone knew that it did not make sense to ban all consideration of religion by religious employers. The Baptist church shouldn't have to hire a Dutch Calvinist to be its pastor! So Title VII had a religious exemption—a special rule for religious organizations. Religious job discrimination by secular employers was banned. But religious organizations continued to be free to consider religion in making employment decisions—when considering persons responsible for carrying out the organization's "religious activities."

But what did the exemption mean? A church could consider religion when selecting a pastor and the head of its Sunday School program. But what about the church music director and the church office administrator? And what about hiring by parachurch organizations? Could a Catholic homeless shelter insist on a Catholic director? What about Catholic staff—if the staff isn't responsible for teaching religious lessons to the homeless? What about the Christian Reformed high school's math teacher? The religious health clinic's doctors and nurses—in distinction from its pastoral counselor?

Just which positions were included in the exemption such that religion could legally be a job qualification? Who in the church, and who in the parachurch ministry, is actually involved in the organization's "religious activities"? Just what are "religious activities"? And just who should get to decide which activities are religious activities? This original exemption was like the legal provision applied to Christian Horizons: an organizational exemption, but also a requirement to prove that each specific job included a bona fide religious aspect.

In 1972, the Civil Rights Act was amended. Congress wanted to strengthen its effect. So, for example, the employment nondiscrimination requirement was now applied to employers of as few as 15 people, whereas the law originally applied only to larger workplaces.

Most important for us, the religious exemption—the rule for religious organizations—in Title VII was dramatically changed. It would no longer apply only to job positions that involved "religious activities." From now on, a religious organization would be exempt as a whole and would be able to consider religion in its employment decisions for every position in the organization—not only for the pastor but also the office administrator. Not only for the chaplain in a health clinic but also the doctors and nurses. Not only for the executive director of a Jewish nonprofit but for all of the staff.

Why did Congress make this dramatic change, this expansion of the exemption from only certain positions supposedly concerned with "religious activities" to all positions within the religious organization? Here is the reason, as stated in Congress by Senator Sam Ervin, a Democrat who was noted for his constitutional expertise and who, a few years later, was a hero in the fight to cleanse the federal government of President Richard Nixon's corruption of power: "[T]his amendment," he said, is designed "to take the political hands of Caesar off the institutions of God, where they have no place to be."6

It is not wrong for a religious organization to care about the religious belief and conduct of its employees, and it is no rightful task of government to tell that organization which of its job positions are relevant to its religious identity and religious operations. In other words: For a religious organization, it is not invidious or discriminatory to take account of the religion of employees and job applicants. So the government should not demand that such practices be justified, nor try to stop them.

On the other hand, religion should not be relevant to a secular organization, and so job decisions based on religion in such an organization can and should be illegal. Yet there can be rightful exceptions to this general principle. On occasion, religion might be relevant to jobs even in a secular organization, just as sometimes gender or ethnicity can be important. Despite the civil rights laws, a women's prison can rightly insist that the guards be women, and an Italian restaurant can rightly refuse to hire Swedes and Australians for the wait staff. In the same way, a secular counseling agency desiring to serve Muslim families can rightly seek out Muslim counselors. In other words, it is in secular organizations that the issue of whether religion might be a BFOQ for specific jobs comes up—because it is in a secular organization that religion normally should be irrelevant.

But in a religious organization, religion is relevant, and the whole organization should have an exemption that allows religion to be taken into account in every employment decision, if the organization considers it to be important.

Of course, this expanded religious exemption was taken to court. Critics demanded to know how religion could possibly be relevant when hiring case workers, or office administrators, or janitors. And so a religious job discrimination case went all the way to the United States Supreme Court. The case, called Corporation of the Presiding Bishop v. Amos, actually did concern a janitor—at a Mormon health club—who was fired because he was not being a faithful Mormon.7

A janitor! At a health club! And yet the United States Supreme Court, in a unanimous decision in 1987—nine justices to zero—declared that the health club was within its rights to fire the janitor, and that the expanded Title VII exemption was constitutional, was not too broad, was not a mistake.

How could the U.S. Supreme Court rule that way? Isn't this unfair to secular applicants or to people of other faiths? One of the Supreme Court justices stressed that the U.S. Constitution protects religion and that one way religious communities operate is by deciding what kinds of activities are part of their mission and which people can best carry out those activities. A religious organization can constitute a religious community on its own, too, and thus legitimately seek to be selective about who can join that community.8

But the main argument was different. The Supreme Court said that whether or not religion is relevant for some position in a religious organization is not for the government to say. That decision has to be left up to the religious organization. And the Court said that it is a significant burden on a religious organization, a burden which ought not to be imposed, to require it "to predict which of its activities a secular court will consider religious." It is not always obvious to everyone which activities are religious and which are not. And so, the Court said, parachurch organizations would have to always be worried that a secular judge will see things differently than the religious organization does. And to protect itself, the organization might change its job duties, departing from its best judgment about how to carry out its religious mission.9

So, the government ought to refuse to delve into the internal life of the religious organization. Do not impose a BFOQ requirement on each job in the religious organization; instead, let the religious organization make its own judgments about the relevance of religion for each position. As Senator Sam Ervin said, Caesar should keep its hands off.

Back to the Christian Horizons decision. If I have read it correctly, the Ontario Court insists on two separate and incompatible rules about religious hiring. Religious hiring is legal for a religious organization, the Court affirmed. But wait: in truth, religious hiring is only legal if the organization can say, for each job position, how religion is a job requirement for that position. Or rather, religious hiring for a position is only legal if the organization can convince the courts that religion is a relevant job requirement for that position.

In fact, Christian Horizons claimed that religion was a legitimate qualification for all of the jobs—but the Court disagreed. At the end of the day, it is the Court—the government—that has reserved the power to decide on the relevance of religion to the work of the employees of a religious organization. But why should anyone think that the secular Ontario Divisional Court and the secular Ontario legislature know better than Christian Horizons how important religion is to the work of the employees of Christian Horizons?

The decision contains an inner contradiction. And much worse, it is an instance of the government jumping in to make a decision which it is not competent to decide. If the organization is a religious organization, as the Court agreed it is, then it should be up to the organization itself to decide the relevance of religion to its internal operations, including its employment decisions.

What now can be done? I have three suggestions.

My first suggestion is very pragmatic: Parachurch ministries simply must take a close look at their employment policies and practices, job position by job position, and state a clear rationale for why religious convictions and a religious lifestyle are important to each of those positions. If the courts may second guess those job qualifications, then it is vital to make the case as clearly and comprehensively as possible to help that secular court make the right decision.10

My second suggestion is not at all pragmatic: Proponents of religious freedom ought to work to clarify or amend the Ontario law just as the U.S. Title VII was amended, and for the same reason. Religious hiring by religious organizations is not immoral discrimination and ought not to be suppressed by government. Nor should the government arrogate to itself the power to decide whether religion is relevant to the various jobs in a religious organization. It would be better for religious organizations and for religious freedom if the current religious hiring exemption was made to cover every position in a religious organization. The BFOQ should no longer be applied to religious organizations. Instead, it should be applied only to secular organizations. It is only in secular organizations that the government and the courts should be undertaking a position-by-position review of whether religion might be, after all, a valid occupational qualification.

My third suggestion is even less practical: Parachurch ministries, faith communities, religious freedom advocates, and everyone else who understands the importance of a flourishing civil society must work to help Canadian society, Canadian courts, and Canadian lawmakers to better understand how important a very robust institutional religious freedom is to the welfare and future of the nation. How can a convincing argument be made? Where must it be made and by whom? I must leave those questions to the reader. But I am sure that it is not sufficient to wait until another parachurch organization is hauled into court, and then simply to fight in court for the legitimate freedoms of that organization. Nor is it enough, at that late date, to have even the best media commentary and informative keynote speeches. People and organizations are constantly working in Canada—and in the United States—to undermine the religious freedom needed by faith-based service organizations. Sometimes they do this because of their negative views about religion; sometimes they do this because they want to elevate other views and activities above religion. Whatever the reason, they would rather narrow than honour religious freedom. If we value parachurch service, we ought to find a way to be busy, too—to be forward-acting, taking the initiative—rather than simply hoping and praying that precious freedoms will remain strong even without our active cultivation and advocacy of those freedoms.

Lastly, a few reflections and reminders. Real religious freedom requires real institutional religious freedom—and that means protecting the ability of faith-based organizations to follow the dictates of their religion even when their religion leads them in a different place than is currently praised by society and government. It is not an actual freedom if it only allows a private group to do what the government values. There do have to be limits—to protect other organizations and to protect persons, especially vulnerable persons. But protecting persons and organizations does not require imposing a sweeping set of rigid common standards on every organization.

Also, at any particular moment, those who are making our laws are convinced they are implementing justice—that is why they are busy in public service. But that self-understanding is no guarantee that they in fact are implementing justice. Governments can be wrong—the evidence is all around us today and in history. So it is essential that government be kept within bounds and that there be in the society strong sources of alternative views. For there to be alternative views that can check governmental mistakes, the government must protect civil society institutions, including religious institutions. Remember the civil rights movement in the United States. It took the action of individuals and organizations, many of them motivated and guided by their deep religious faith, to make the government stop promoting injustice and instead begin to do justice.


Notes

1. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy (New York: Oxford Univ. Press, 1990); Charles and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Cabin John, Maryland: Seven Locks Press, 1985).

2. Mark A. Noll, God and Race in American Politics: A Short History (Princeton: Princeton Univ. Press, 2008.); David L. Chappell, A Stone of Hope: Prophetic Religion and the Death of Jim Crow (Chapel Hill: Univ. of North Carolina Press, 2004).

3. See, esp., Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space between Person and the State (Cambridge: Cambridge Univ. Press, 2010), who makes a strong case that conscience requires a relational—social—underpinning.

4. Ontario Divisional Court, Ontario Human Rights Commission v. Christian Horizons, May 14, 2010. Especially helpful commentaries include LexView 70.0: Associational Rights for Religious Communities, Sept. 27, 2010 (by Kevin L. Boonstra); "Divisonal Court Decision Provides Mixed Results in Christian Horizons Appeal," Church Law Bulletin, no. 29 (Carters Professional Corporation), May 26, 2010; Iain T. Benson, "Court's decision important for Canadian Religious Freedom," ChristianWeek News (ChristianWeek.org), June 29, 2010; Don Hutchinson, "Heintz v Christian Horizons—Win, Lose or Draw?," Activate CFPL Blog (Evangelical Fellowship of Canada), May 19, 2010; and Faye Sonier, "Heintz v. Christian Horizons: "Stripping the Biblical Mission from Evangelical Christian Ministries," Church & Faith Trends (Centre for Research on Canadian Evangelicalism; Evangelical Fellowship of Canada), 2, no. 2 (January 2009).

5. On the Title VII religious exemption and how it was changed, and generally on religious hiring in US law, see Carl H. Esbeck, Stanley W. Carlson-Thies, and Ronald J. Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis (Washington, DC: Center for Public Justice, 2004).

6. Quoted in Esbeck, Carlson-Thies, and Sider, Freedom of Faith-Based Organizations, p. 27. Sen. Ervin's statement is an expression of the US Constitution's strong affirmation of the principle of the separation of church and state, intended to protect religion from government. This principle does not prevent extensive collaboration between religious service organizations and government; rather, it protects their religious character as they interact with government.

7. 483 U.S. 327 (1987).

8. Justice Brennan's concurring opinion.

9. Justice White's opinion, at p. 336.

10. Even without the Bona Fide Occupational Qualification requirement, it is essential that faith-based organizations explicitly connect their employment policies and practices to the organization's religious commitments. See the "Religious Staffing Checklist" posted on the Institutional Religious Freedom Alliance's website: http://irfalliance.org/images/stories/pdf/religious-staffing-checklist.pdf.


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  1. December 2010: Liberty or Liability
    CPIP - Liberty or Liability This issue of Cardus Policy in Public is about institutional religious freedom, specifically, but more generally, the boundaries of conviction and expression in a democratic society. At the heart of this conversation is not simply the question, "What is religion?"—though it is clear we in Canada have anything but consensus on that—but also, what is freedom?


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