2nd place: FFRF Law School Student Essay Contest — Vasili Sgourakis
By Vasili Sgourakis
Because antidiscrimination laws are neutral and generally applicable laws governing outward physical acts, they may, in accordance with the Constitution, be enforced against religious schools receiving public funds.
“The Free Exercise Clause protects religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status.” As such, “the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon . . . religious beliefs and practices.” The First Amendment’s Free Exercise Clause thus protects the religious against improper discrimination by government.
But the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Indeed, “conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law” because “the mere possession of religious convictions . . . does not relieve the citizen from the discharge of political responsibilities.” In other words, a law may mandate religious people or institutions behave in a certain manner, even contrary to their religious beliefs, so long as the law is neutral and generally applicable.
Antidiscrimination laws meet the neutrality requirement because they do not single out religious practices or institutions for unique burdens. When “the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” And the neutrality requirement is similarly violated when institutions are disqualified from a public benefit “solely because of their religious character.” Accordingly, a “nonsectarian requirement for otherwise generally available tuition assistance payments” was held to “violate the Free Exercise Clause of the First Amendment” because it discriminated against an institution’s religious character. However, when a law’s adoption is unrelated to “the object of suppressing the exercise of religion,” it will satisfy the neutrality requirement. In the case of antidiscrimination laws, this condition is generally satisfied. Antidiscrimination laws apply to all persons, regardless of their religious inclination. They possess a “broad scope” and their “objective” is deterring “the act of discriminating against individuals . . . on the proscribed grounds.” As opposed to other non-neutral legislation, antidiscrimination laws were not “enacted because of their suppression of religious practice.” Instead, these laws seek to discourage discriminatory practices, irrespective of their religious backdrop. “The object of Title VII” “is not to target religion, but rather to eliminate discrimination in employment.” It is evident, therefore, that antidiscrimination laws generally do not target religion in an unneutral manner.
Likewise, antidiscrimination laws are generally applicable because there is no mechanism for individualized exemptions, and they seek to proscribe discrimination writ large rather than only in the religious context. “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” Moreover, “a government policy will fail the general applicability requirement if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Antidiscrimination laws aim to promote equality and apply universally. Title VII, for instance, broadly prohibits employment discrimination because of “race, color, religion, sex, or national origin.”4 To be sure, Title VII and Title IX contain “categorical exemptions” but “[t]heir application does not depend on individualized discretion” so “they do not invite ‘the government to decide which reasons for not complying with the law are worthy of solicitude.’” Moreover, these exemptions largely apply to religious institutions and therefore do not operate in a manner which “favors comparable secular activity” to the same activity in a religious setting. It is evident, therefore, that antidiscrimination laws meet the general applicability requirement since they apply to employers broadly without any process for individualized exemptions.
Still, when antidiscrimination laws provide mechanisms for personalized exemptions, they are not generally applicable. For instance, in Fellowship of Christian Athletes v. San Jose Unified School District, the Ninth Circuit held that a school district’s antidiscrimination policies were “not generally applicable because the District retain[ed] discretion to grant individualized exemptions for its own programs and students alike.” But antidiscrimination laws are laws of general applicability so long as they neither permit individualized exemptions nor draw a distinction between discrimination in the religious versus secular context.
Nevertheless, religious institutions may, in some instances, be exempt from neutral and generally applicable laws because “the First Amendment protects their right to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Although “[t]his does not mean that religious institutions enjoy a general immunity from secular laws, it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission.” Accordingly, the “ministerial exception” “precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers.”
Critically, however, the court’s ministerial exception doctrine distinguishes between “government regulation of only outward physical acts” and “government interference with an internal church decision” because the latter “affects the faith and mission of the church itself.”
Like the permissible prohibition on the ingestion of Peyote in Smith, antidiscrimination laws govern “only outward physical acts.” They proscribe the “act” of discriminating based on a given characteristic. Title VII, for instance, prohibits “treating a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex.” And rather than interfering with decisions central to a religious sect’s identity, such as the selection of its faith leaders, applying antidiscrimination laws to religious schools merely obligates the schools to refrain from certain discriminatory actions. After all, the exception “was not developed to provide protection to individuals who wish to contravene a generally applicable law” but instead to preserve the notion “that churches are to be free from government interference in matters of church governance and administration.” Although some positions might meet the ministerial exception standard because they are “essential to the institution’s central mission,” the application of antidiscrimination laws to religious schools generally comports with the Free Exercise clause.
In sum, antidiscrimination laws may constitutionally be applied to religious schools receiving public funds. First, antidiscrimination laws may be enforced against religious schools because they are neutral and generally applicable to both religious and non-religious institutions alike. Furthermore, their application to religious schools does not per se offend the ministerial exception since antidiscrimination laws govern outward physical acts and do not generally interfere with matters of faith and doctrine.
Vasili Sgourakis is a 3L at Iowa Law School. He plans to practice corporate law at Mayer Brown in New York. “My background in political science and constitutional law courses have instilled a strong interest in constitutional law,” Vasili writes. “I plan to continue to pursue this interest going forward through pro bono work and personal study.”
