CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS ET AL. v. AMOS ET AL.
No. 86-179
Supreme Court of the United States
Argued March 31, 1987—Decided June 24, 1987
483 U.S. 327
*Tоgether with No. 86-401, United States v. Amos et al., also on appeal from the same court.
Rex E. Lee argued the cause for appellants in No. 86-179. With him on the briefs were Wilford W. Kirton, Jr., Dan S. Bushnell, M. Karlynn Hinman, Benjamin W. Heineman, Jr., Carter G. Phillips, and Ronald S. Flagg. Assistant Attorney General Reynolds argued the cause for the United States in No. 86-401. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, and Andrew J. Pincus.
JUSTICE WHITE delivered the opinion of the Court.
Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended,
†Briefs of amici curiae urging reversal were filed for the American Association of Presidents of Independent Colleges and Universities et al. by Edward McGlynn Gaffney, Jr.; for the American Jewish Congress by Marc D. Stern and Amy Adelson; for the Baptist Joint Committee on Public Affairs by Donald R. Brewer and Oliver S. Thomas; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Christian Legal Society et al. by Michael W. McConnell, Michael J. Woodruff, Samuel E. Ericsson, Kimberlee W. Colby, Philip E. Draheim, and Forest D. Montgomery; for the General Conference of Seventh-day Adventists by Warren L. Johns, Walter E. Carson, and Melvin B. Sabey; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the United States Catholic Conference by John A. Liekweg and Mark E. Chopko; and for the Council on Religious Freedom by Lee Boothby, James M. Parker, Robert W. Nixon, and Rolland Truman.
Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by Michael H. Gottesman, Robert M. Weinberg, David M. Silberman, and Laurence Gold; for the Anti-Defamation League of B‘nai B‘rith by Harold P. Weinberger, Justin J. Finger, Jeffrey P. Sinensky, Jill L. Kahn, Ruti G. Tietel, and Meyer Eisenberg; for the Employment Law Center of the Legal Aid Society of San Francisco by Joan M. Graff, Robert Barnes, and Robert E. Borton; and for the Women‘s Legal Defense Fund et al. by Donna Lenhoff.
Jordan W. Lorence filed a brief for Concerned Women of America as amicus curiae.
I
The Deseret Gymnasium (Gymnasium) in Salt Lаke City, Utah, is a nonprofit facility, open to the public, run by the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB), and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). The CPB and the COP are religious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association sometimes called the Mormon or LDS Church.3
Appellee Mayson worked at the Gymnasium for some 16 years as an assistant building engineer and then as building engineer. He was discharged in 1981 because he failed to qualify for a temple recommend, that is, a certificate that he is a member of the Church and eligible to attend its temples.4
The District Court first considered whether the facts of these cases require a decision on the plaintiffs’ constitutional argument. Starting from the premise that the religious activities of religious employers can permissibly be exempted under § 702, the court developed a three-part test to determine whether an activity is religious.6 Applying this test to
The court next considered the plaintiffs’ constitutional challenge to § 702. Applying the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), the court first held that § 702 has the permissible secular purpose of “assuring that the government remains neutral and does not meddle in religious affairs by interfering with the decision-making process in religions. . . .” 594 F. Supp., at 812.9
II
“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm‘n of Fla., 480 U. S. 136, 144-145 (1987) (footnote omitted). It is well established, too, that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” Walz v. Tax Comm‘n, 397 U. S. 664, 673 (1970). There is ample room under the Establishment Clause for “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id., at 669. At some point, accommodation may devolve into “an unlawful
Subsequently, the court concluded that disputed issues of material fact precluded summary judgment for the Beehive employees (see n. 5, supra). 618 F. Supp. 1013, 1016 (Utah 1985).
A plaintiff added by amendment of the complaint, Ralph Whitaker, claimed impermissible religious discrimination in his discharge from the position of truckdriver by Deseret Industries (Industries) based on his failure to qualify for a temple recommend. Industries, a division of the Church‘s Welfare Services Department, runs a workshop program for the handicapped, retarded, and unemployed, who sort and assemble items and refurbish donated goods for sale in Industries’ thrift stores. Relying on the Church‘s emphasis on charity and work, the court held that Industries is a religious activity because “there is an intimate connection between Industries and the defendants and the Mormon Church and between the primary function of Industries and the religious tenets of the Church.” Id., at 1027. Finding no Establishment Clause violation in applying the § 702 exemption to Industries, the court granted summary judgment against Whitaker, who did not appeal.
The private appellants contend that we should not apply the three-part Lemon approach, which is assertedly unsuited to judging the constitutionality of exemption statutes such as § 702. Brief for Appellants in No. 86-179, pp. 24-26. The argument is that an exemption statute will always have the effect of advancing religion and hence be invalid under the second (effects) part of the Lemon test, a result claimed to be inconsistent with cases such as Walz v. Tax Comm‘n, supra, which upheld property tax exemptions for religious organizations. The first two of the three Lemon factors, however, were directly taken from pre-Walz decisions, 403 U. S., at 612-613, and Walz did not purport to depart from prior Establishment Clause cases, except by adding a consideration that became the third element of the Lemon test. 403 U. S., at 613. In any event, we need not reexamine Lemon as applied in this context, for the exemption involved here is in no way questionable under the Lemon analysis.
Lemon requires first that the law at issue serve a “secular legislative purpose.” Id., at 612. This does not mean that the law‘s purpose must be unrelated to religion—that would amount to a requirement “that the government show a callous indifference to religious groups,” Zorach v. Clauson, 343 U. S. 306, 314 (1952), and the Establishment Clause has never been so interpreted. Rather, Lemon‘s “purpose” requirement aims at preventing the relevant governmental decisionmaker—in this case, Congress—from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.
Under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Appellees argue that there is no such purpose here because § 702 provided adequate protection for religious employers prior to the 1972 amendment,
After a detailed examination of the legislative history of the 1972 amendment, the District Court concluded that Congress’ purpose was to minimize governmental “interfer[ence] with the decision-making process in religions.” 594 F. Supp., at 812. We agree with the District Court that this purpose does not violate the Establishment Clause.
The second requirement under Lemon is that the law in question have “a principal or primary effect . . . that neither advances nor inhibits religion.” 403 U. S., at 612. Undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702. But religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster: for example, the property tax exemption at issue in Walz v. Tax Comm‘n, supra, or the loans of schoolbooks to schoolchildren, including parochial school students, upheld in Board of Education v. Allen, 392
The District Court appeared to fear that sustaining the exemption would permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world. 594 F. Supp., at 825. The cases before us, however, involve a nonprofit activity instituted over 75 years ago in the hope that “all who assemble here, and who come for the benefit of their health, and for physical blessings, [may] feel that they are in a house dedicated to the Lord.” Dedicatory Prayer for the Gymnasium, quoted, 594 F. Supp., at 800-801, n. 15. These cases therefore do not implicate the apparent concerns of the District Court. Moreover, we find no persuasive evidence in the record before us that the Church‘s ability to propagate its religious doctrine through the Gymnasium is any greater now than it was prior to the passage of the Civil Rights Act in 1964. In such circumstances, we do not see how any advancement of religion achieved by the Gymnasium can be fairly attributed to the Government, as opposed to the Church.15
We are also unpersuaded by the District Court‘s reliance on the argument that § 702 is unsupported by long historical tradition. There was simply no need to consider the scope of the § 702 exemption until the 1964 Civil Rights Act was passed, and the fact that Congress concluded after eight years that the original exemption was unnecessarily narrow is a decision entitled to deference, not suspicion.
Appellees argue that § 702 offends equal protection principles by giving less protection to the employees of religious employers than to the employees of secular employers.16 Appellees rely on Larson v. Valente, 456 U. S. 228, 246
It cannot be seriously contended that § 702 impermissibly entangles church аnd state; the statute effectuates a more complete separation of the two and avoids the kind of intrusive inquiry into religious belief that the District Court engaged in in this case. The statute easily passes muster under the third part of the Lemon test.17
Notes
“Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any—or all—religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a message of government endorsement . . . of religion, a core purpose of the Establishment Clause is violated.” Grand Rapids School Dist. v. Ball, 473 U. S. 373, 389 (1985).
In these cases, as JUSTICE O‘CONNOR cogently observes in her concurrence, “[t]he Church had the power to put [appellee] Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.” Post, at 347.
“[W]e hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Crеator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” J. Madison, Memorial and Remonstrance Against Religious Assessment, in 2 Writings of James Madison 184 (G. Hunt ed. 1901) (quoting Virginia Declaration of Rights, Art. 16).
See also Wallace v. Jaffree, 472 U. S. 38, 50 (1985) (“[T]he Court has identified the individual‘s freedom of conscience as the central liberty that unifies the various Clauses in the First Amendment“).
Appellees argue that § 702 creates danger of political divisiveness along political lines. As the Court stated in Lynch v. Donnelly, 465 U. S. 668, 684 (1984):
“[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does nоt involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into political
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.
I write separately to emphasize that my concurrence in the judgment rests on the fact that these cases involve a challenge to the application of § 702‘s categorical exemption to the activities of a nonprofit organization. I believe that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular.
These cases present a confrontation between the rights of religious organizations and those of individuals. Any exemption from Title VII‘s proscriptiоn on religious discrimination necessarily has the effect of burdening the religious liberty of prospective and current employees. An exemption says that a person may be put to the choice of either conforming to certain religious tenets or losing a job opportunity, a promotion, or, as in these cases, employment itself.1
At the same time, religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to:
“select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, аnd these organizations must be protected by the [Free Exercise] [C]lause.” Laycock, Towards a General Theory of the Religion Clauses: The
See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976) (church has interest in effecting binding resolution of internal governance disputes); Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94 (1952) (state statute purporting to transfer administrative control from one church authority to another violates Free Exercise Clause). For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.3 Determining that certain activities are in furtherance of an organization‘s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church‘s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital that, if certain activities constitute part of a religious community‘s practice, then a religious organization should be able to
This rationale suggests that, ideally, religious organizations should be able to discriminate on the basis of religion only with respect to religious аctivities, so that a determination should be made in each case whether an activity is religious or secular. This is because the infringement on religious liberty that results from conditioning performance of secular activity upon religious belief cannot be defended as necessary for the community‘s self-definition. Furthermore, the authorization of discrimination in such circumstances is not an accommodation that simply enables a church to gain members by the normal means of prescribing the terms of membership for those who seek to participate in furthering the mission of the community. Rather, it puts at the disposal of religion the added advantages of economic leverage in the secular realm. As a result, the authorization of religious discrimination with respect to nonreligious activities goes beyond reasonable accommodation, and has the effеct of furthering religion in violation of the Establishment Clause. See Lemon v. Kurtzman, 403 U. S. 602, 612 (1971).
What makes the application of a religious-secular distinction difficult is that the character of an activity is not self-evident. As a result, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. See id., at 613. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree. A religious organization therefore would have an incentive to characterize as religious only those activities about which there likely would be no dispute, even if it genuinely believed that religious commitment was important in performing other tasks as well. As a result, the community‘s process
The risk of chilling religious organizations is most likely to arise with respect to nonprofit activities. The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation. In contrast to a for-profit corporation, a nonprofit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners. See generally Hansmann, The Role of Nonprofit Enterprise, 89 Yale L. J. 835 (1980). This makes plausible а church‘s contention that an entity is not operated simply in order to generate revenues for the church, but that the activities themselves are infused with a religious purpose. Furthermore, unlike for-profit corporations, nonprofits historically have been organized specifically to provide certain community services, not simply to engage in commerce. Churches often regard the provision of such services as a means of fulfilling religious duty and of providing an example of the way of life a church seeks to foster.4
Sensitivity to individual religious freedom dictates that religious discrimination be permitted only with respect to employment in rеligious activities. Concern for the autonomy of religious organizations demands that we avoid the entanglement and the chill on religious expression that a case-by-case determination would produce. We cannot escape the fact that these aims are in tension. Because of the nature of nonprofit activities, I believe that a categorical exemption for
JUSTICE BLACKMUN, concurring in the judgment.
Essentially for the reasons set forth in JUSTICE O‘CONNOR‘S opinion, particularly the third and final paragraphs thereof, I too, concur in the judgment of the Court. I fully agree that the distinction drawn by the Court seems “to obscure far morе than to enlighten,” as JUSTICE O‘CONNOR states, post, at 347, and that, surely, the “question of the constitutionality of the § 702 exemption as applied to for-profit activities of religious organizations remains open,” post, at 349.
JUSTICE O‘CONNOR, concurring in the judgment.
Although I agree with the judgment of the Court, I write separately to note that this action once again illustrates certain difficulties inherent in the Court‘s use of the test articulated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). See Wallace v. Jaffree, 472 U. S. 38, 67 (1985) (O‘CONNOR, J., concurring in judgment); Lynch v. Donnelly, 465 U. S. 668, 687 (1984) (O‘CONNOR, J., concurring). As a result of this problematic analysis, while the holding of the opinion for the Court extends only to nonprofit organizations, its reasoning fails to acknowledge that the amended § 702,
In Wallace v. Jaffree, supra, I noted a tension in the Court‘s use of the Lemon test to evaluate an Establishment Clause challenge to government efforts to accommodate the free exercise of religion:
“On the one hand, a rigid application of the Lemon tеst would invalidate legislation exempting religious observers from generally applicable government obligations.
By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.” Wallace v. Jaffree, supra, at 82.
In my view, the opinion for the Court leans toward the second of the two unacceptable options described above. While acknowledging that “[u]ndoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702,” the Court seems to suggest that the “effects” prong of the Lemon test is not at all implicated as long as the government action can be characterized as “allowing” religious organizations to advance religion, in contrast to government action directly advancing religion. Ante, at 337. This distinction seems to me to obscure far more than to enlighten. Almost any government benefit to religion could be recharacterized as simply “allowing” a religion to better advance itself, unless perhaps it involved actual proselytization by government agents. In nearly every case of a government benefit to religion, the religious mission would not be advanced if the religion did not take advantage of the benefit; even a direct financial subsidy to a religious organization would not advance religion if for some reason the organization failed to make any use of the funds. It is for this same reason that there is little significance to thе Court‘s observation that it was the Church rather than the Government that penalized Mayson‘s refusal to adhere to Church doctrine. Ante, at 337, n. 15. The Church had the power to put Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.
The above framework, I believe, helps clarify why the amended § 702 raises different questions as it is applied to nonprofit and for-profit organizations. As JUSTICE BRENNAN observes in his concurrence: “The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation.” Ante, at 344 (opinion concurring in judgment). These cases involve a Government decision to lift from a non-
It is not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as likely to be directly involved in the religious mission of the organization. While I express no opinion on the issue, I emphasize that under the holding of the Court, and under my view of the appropriate Establishment Clause analysis, the question of the constitutionality of the § 702 exemption as applied to for-profit activities of religious organizations remains open.
divisiveness is even called for, Mueller v. Allen, 463 U. S. 388, 403-404, n. 11 (1983).”