Equal Employment Opportunity Commission v. Townley Engineering & Manufacturing CompanyEqual Employment Opportunity Commission v. Townley Engineering & Manufacturing Company
Lorraine C. Davis, Asst. Gen. Counsel, E.E.O.C., Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before SNEED, HALL and NOONAN, Circuit Judges.
SNEED, Circuit Judge:
Townley Manufacturing Company appeals the district court‘s injunction halting its mandatory devotional services at its Eloy, Arizona plant. We substantially affirm the district court, but remand to permit the framing of its injunction more narrowly.
I. FACTS AND PROCEEDINGS BELOW
Townley Manufacturing Company (Townley) is a closely held corporation organized under the laws of Florida. It manufactures mining equipment. It was founded in 1963 by J.O. (Jake) and Helen Townley, who still own about 94% of the stock. When they founded the company, Jake and Helen Townley made a covenant with God that their business “would be a Christian, faith-operated business.” The Townleys were and are “born again believers in the Lord Jesus Christ” who “are unable to separate God from any portion of their daily lives, including their activities at the Townley company.” Appellant‘s Brief at 6. Townley opened its first plant in Florida; it has since opened other plants, including one in Eloy, Arizona in 1973.
Townley reflects its founders’ covenant with God in several ways. For example, the company encloses a Gospel tract in every piece of outgoing mail; it prints Biblical verses on all company invoices, purchase orders, and other commercial documents; it gives financial support to various churches and missionaries; and, of particular importance to this case, it holds a devotional service once a week during work hours.
Townley‘s Florida plant has had weekly devotional services since its inception. They typically last from thirty to forty-five minutes, and may include prayer, thanksgiving to God, singing, testimony, and scripture reading, as well as discussion of business related matters. Townley required all employees to attend the weekly services; failure to attend was regarded as equivalent to not attending work.
In November 1979, Townley hired Louis Pelvas as a machinist in its Eloy plant. At that time there were no devotional services conducted at the Eloy plant. In December 1982, Townley gave its employees an employee handbook, which stated the company‘s policies and rules. Under the heading of company rules, the handbook stated: “All employees are required to attend the non-denominational devotional services each Tuesday. Employees are paid for their time while attending these services.” Pelvas read the handbook and signed a statement agreeing, inter alia, “to abide by all the requirements and policies stated within that handbook, as a condition of my continued employment with Townley.... I recognize that failure on my part to keep this agreement may result in my dismissal from the company.” Excerpt of Record, tab 49.
Townley did not institute devotional services at its Eloy plant until April 1984. Pelvas attended the services without complaint only until June 1984, when he asked to be excused from the services because he was an atheist. His supervisor told him that attendance was mandatory. The supervisor also stated that Pelvas could sleep or read the newspaper during the services. Pelvas continued to attend the services, but in October 1984 he filed a religious discrimination charge with the Equal Employment Opportunity Commission. In December 1984, Pelvas left the company. Pelvas states that he was constructively discharged; Townley says that Pelvas refused to accept an offer of transfer to another plant.
In July 1986, the EEOC filed this action against Townley. The EEOC charged that Townley violated
The district court had jurisdiction under
III. STANDARD OF REVIEW
We review the district court‘s grant of summary judgment de novo. We affirm if the record, read in the light most favorable to the nonmoving party, reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. International Ass‘n of Machinists v. Aloha Airlines, Inc., 790 F.2d 727, 730 (9th Cir.), cert. denied, 479 U.S. 931, 107 S.Ct. 400, 93 L.Ed.2d 354 (1986).
IV. THE REACH OF TITLE VII
Townley argues both that Title VII was not intended to apply to this employment policy, and that the proposed application of Title VII would violate the Free Exercise Clause of the First Amendment. It is clear that applying Title VII to the devotional services “would give rise to serious constitutional questions.” See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). Therefore, we may not find it applicable unless there is an “affirmative intention of Congress clearly expressed” that it should be so applied. Id.; see EEOC v. Fremont Christian School, 781 F.2d 1362, 1365 (9th Cir.1986); EEOC v. Pacific Press Publishing Ass‘n, 676 F.2d 1272, 1276 (9th Cir.1982).
We hold that Congress did clearly intend for Title VII to cover Townley‘s mandatory devotional services. Sections 701(j) and 703(a) of Title VII make clear that requiring employees over their objections to attend devotional services cannot be reconciled with Title VII‘s prohibition against religious discrimination. Furthermore, we hold that Congress did not intend section 702‘s exemption for religious corporations to shield corporations such as Townley.2 We do hold, however, that Jake and Helen Townley have certain rights under the Free Exercise Clause that Title VII cannot infringe.
A. Sections 701(j) and 703 of Title VII
1. Discrimination on the Basis of Religion in General
As originally enacted, Title VII of the Civil Rights Act of 1964 simply prohibited employment discrimination on the basis of religion.3 This prohibition clearly covered discrimination on the basis of religious belief; whether it protected employees’ religious practices was less clear. To clarify the point, Congress amended Title VII in 1972 by adding a definition of religion.4 The definition, contained in section 701(j), states:
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee‘s or prospective employee‘s religious observance or practice without undue hardship on the conduct of the employer‘s business.
2. Order of Proof
We have read sections 703(a) and 701(j) as creating a two-part framework in religious practice cases. First, the plaintiff must establish a prima facie case of religious discrimination. We have elaborated on the requirements of the plaintiff‘s burden in other opinions. We need not review the requirements in detail here, because Townley does not contest that the EEOC has met them.5 Suffice it to say that after the plaintiff has made out a prima facie case, the burden shifts to the employer “to prove that [it] made good faith efforts to accommodate [the employee‘s] religious beliefs and, if those efforts were unsuccessful, to demonstrate that [it was] unable reasonably to accommodate his beliefs without undue hardship.” Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir.1978).
Townley admits that it has made no effort to accommodate Pelvas’ objections to the services. It argues that Title VII does not require accommodation because (1) any attempt at accommodation would have caused it “undue hardship,” and (2) Pelvas “waived the accommodation requirement when he voluntarily consented to attending the devotional services at the time he executed the signature page of the Employee Handbook agreeing to comply with all the policies of Townley,” Appellant‘s Reply Brief at 8-9.6
The language from Anderson quoted above might be read to imply that an employer cannot bring up “undue hardship” unless it first proves that it made good faith efforts to accommodate the employee‘s practice. See also American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986) (“it is incumbent upon the employer to undertake some initial steps to reach a reasonable accommodation of the particular religious belief at issue“); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 405-06 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). However, it is doubtful that this language should be read so broadly. If an employer can show that no accommodation was possible without undue hardship, it makes no sense to require that he engage in a futile act. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (1986) (“the extent of undue hardship on the employer‘s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship“).7 The language in our cases merely emphasizes that the burden of attempting an accommodation rests with the employer rather than the employee. When an employer does not propose an accommodation, or when its proposed accommodation does not eliminate the employee‘s religious conflict, the employer must accept the employee‘s proposal or demonstrate that the proposal would cause the employer undue hardship. See American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986); Burns, 589 F.2d at 406.
Pelvas proposed that Townley accommodate his religious objections to the devotional services by excusing him from attendance. The district court found that this accommodation would have caused Townley no undue hardship. It stated, “Excusing Pelvas from the mandatory devotional services would have cost Townley nothing in the operation of its business activities, and would not have disrupted other workers.” 675 F.Supp. at 568. We agree.
Townley argues that the district court should have considered the spiritual hardship the accommodation would have caused. We acknowledge that spiritual costs can exist. Congress has so recognized by its enactment of sections 702 and 701(e).8 Townley is, of course, right when it says, “Cost cannot always be measured in terms of dollars. Spiritual ‘costs’ must also be given consideration....” Appellant‘s Brief at 27. It is very doubtful, however, that such “costs” can impose on a corporate employer the required level of hardship.
The difficulty is that under the statute the employer must show that the accommodation of a religious practice would cause “undue hardship on the conduct of the employer‘s business.”
It is true, of course, that Title VII does not ignore entirely the spiritual objectives of employers. Section 702 of Title VII expressly excludes religious corporations, associations, educational institutions, and societies from Title VII‘s prohibition against religious discrimination.
However, even if this is not so, any effort in this case by Townley to show that its religious nature makes any accommodation of the religious belief of Pelvas an “undue hardship” under section 701(j) must fail. At most, Townley has stated that the ease with which it spreads its word to its employees would be slightly reduced were it to accommodate Pelvas. But “[u]ndue hardship means something greater than hardship.” Anderson, 589 F.2d at 402. Pelvas was allowed to listen to the radio and read at the services, and the Eloy plant operated for eleven years without requiring its employees to attend services. This hardly provides an adequate foundation for asserting that excusing Pelvas would have imposed undue spiritual hardship on Townley‘s business.
Nor does the fact that the services also contain “business discussions” alter this conclusion. Townley argues that these business discussions cannot be separated from the rest of the service. Its only support for this assertion is Jake and Helen Townley‘s statement that they cannot separate God from their business. It does not argue that the attempt to separate the secular aspects of the service from the religious would cause hardship to coworkers or disrupt the work routine. Stripped to its core, then, this argument is the one considered and rejected above—that the accommodation would cause spiritual hardship to Townley. Even if undue hardship to Townley‘s business could be supplied by establishing a high degree of “spiritual hardship,” a rather doubtful proposition, Townley has failed to establish that level of hardship.
Townley also argues that it did not have to accommodate Pelvas’ objections to the services because Pelvas waived his rights to accommodation by signing a page of the Employee Handbook which committed him to complying with Townley‘s policies. The Supreme Court has stated that “there can be no prospective waiver of an employee‘s rights under Title VII.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974); see also Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C.Cir.1979); McClure v. Salvation Army, 460 F.2d 553, 557 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972); cf. J.I. Case Co. v. NLRB, 321 U.S. 332, 337, 64 S.Ct. 576, 580, 88 L.Ed. 762 (1944). There are exceptions to this general rule, see, e.g., Alexander, 415 U.S. at 52, 94 S.Ct. at 1022 (voluntary settlements); Bauman v. United States District Court, 557 F.2d 650, 658 n. 9 (9th Cir.1977) (plaintiff ineligible for class action), but we decline to add another. Allowing the waiver of Title VII rights through covenants in employment contracts would undermine Title VII‘s policy of eradicating discrimination in employment.
B. The “Religious Corporation” Exemption of Section 702
Townley next argues that it is a “religious corporation” exempt from Title VII by the terms of section 702, which states in part:
This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
A brief review of the relevant legislative history is necessary. In 1963, the House Judiciary Committee drafted H.R. 7152, the bill which was the basis of much of the Civil Rights Act of 1964. Title VII of the bill included a section that stated the title would not apply to a “religious corporation, association, or society.” The committee report accompanying the bill did not elaborate on the section. However, the section was the subject of some debate in the House after Representative Purcell proposed amending H.R. 7152 to allow an educational institution to discriminate on the basis of religion if the institution was wholly or partly supported or managed “by a particular religion or by a particular religious corporation, association, or society,” or if the institution‘s curriculum was “directed toward the propagation of a particular religion.” EEOC Legislative History of Titles VII and XI of the Civil Rights Act of 1964, at 3197 (1968).
Although this debate is far from comprehensive, it is the only useful legislative history we have on this section. Section 702 was amended by the Senate in 1964, and amended again by Congress in 1972, but the debate on the amendments sheds no more light on the definition of religious corporations.12 The debate over Representative Purcell‘s amendment does indicate, however, that Congress‘s conception of the scope of section 702 was not a broad one. All assumed that only those institutions with extremely close ties to organized religions would be covered. Churches, and entities similar to churches, were the paradigm.
As the district court noted, the case law on this question is not very helpful. In most cases, the defendant is clearly a “religious corporation, association, educational institution, or society” within the meaning of section 702 of the statute. See, e.g., EEOC v. Fremont Christian School, 781 F.2d 1362, 1364 (9th Cir.1986) (defendant was “private educational institution ... wholly owned and operated by the Assembly of God church“); EEOC v. Pacific Press Publishing Ass‘n, 676 F.2d 1272, 1274 (9th Cir.1982) (defendant was “nonprofit corporation ... affiliated with the Seventh-Day Adventist Church” engaged in publishing “religiously oriented material“); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1164-65 (4th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) (defendant was church); EEOC v. Mississippi College, 626 F.2d 477, 478 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981) (defendant was college owned and operated by convention of Southern Baptist churches). These cases, like the legislative history, demonstrate that the central function of section 702 has been to exempt churches, synagogues, and the like, and organizations closely affiliated with those entities.13
At least one case has tested the limits of this exemption. In Fike v. United Methodist Children‘s Home, 547 F.Supp. 286 (E.D.Va.1982), aff‘d, 709 F.2d 284 (4th Cir.1983), the plaintiff alleged that the Children‘s Home dismissed him from his position as director because it wanted a Methodist minister in the position. The court found that the Children‘s Home “was founded by and over the years has had close ties with the Methodist Church.” Id. at 288. The Methodist Church became worried that the Home was becoming too secular, and as a result recommended that the Home hire a Methodist minister as director “in order to bring the Home back to the Church structure.” Id. at 289. Despite these facts, the court refused to find that the Home was a “religious corporation” within the meaning of section 702. After examining the purported religious and secular characteristics of the Home at length, id. at 289-90, the court stated:
While the original mission of the United Methodist Children‘s Home may have been to provide a Christian home for orphans and other children, that mission has not remained unchanged. The facts show that as far as the direction given the day-to-day life for the children is concerned, it is practically devoid of religious content or training, as such. While the purpose of caring for and providing guidance for troubled youths is no doubt an admirable and charitable one, it is not necessarily a religious one. For an organization to be considered “religious” requires something more than a board of trustees who are members of a church. The Court, therefore, holds that for the purposes of the exemption in Sec. 2000e-1 the United Methodist Children‘s Home is, quite literally, Methodist only in name. It is a secular organization.
Like the Fike court, we shall not attempt to outline section 702‘s precise scope. The effort to do so would fail. Rather, each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation‘s purpose and character are primarily religious. Only when that is the case will the corporation be able to avail itself of the exemption.14
Townley and the EEOC do not dispute the “primarily religious” standard. They differ over whether Townley is primarily religious or secular. On the secular side, the company is for profit. It produces mining equipment, an admittedly secular product. It is not affiliated with or supported by a church. Its articles of incorporation do not mention any religious purpose. Against these elements are the facts that Townley encloses Gospel tracts in its outgoing mail, prints Bible verses on its commercial documents (such as invoices and purchase orders), financially supports churches, missionaries, a prison ministry, and Christian radio broadcasts, and, of course, conducts a weekly devotional service. Underlying these facts, of course, is “the discipleship Jake and Helen Townley have for the Lord Jesus Christ.”
When viewed together, we have no difficulty in holding that these characteristics indicate that Townley is primarily secular. We do not question the sincerity of the religious beliefs of the owners of Townley. Nor do we question that they regard the conduct of their company as subject to a compact with God. We merely hold that the beliefs of the owners and operators of a corporation are simply not enough in themselves to make the corporation “religious” within the meaning of section 702. We therefore agree with the district court that Townley is not exempt under section 702 from Title VII‘s prohibition against religious discrimination.
V. FREE EXERCISE CLAUSE
We now address Townley‘s contention that this application of Title VII violates its rights under the Free Exercise Clause of the First Amendment.
Townley urges this court to hold that it is entitled to invoke the Free Exercise Clause on its own behalf. Because Townley is merely the instrument through and by which Mr. and Mrs. Townley express their religious beliefs, it is unnecessary to address the abstract issue whether a for profit corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers. Townley presents no rights of its own different from or greater than its owners’ rights. See Appellant‘s Brief at 35 (“Townley Company is an extension of the beliefs of Mr. and Mrs. Townley, and for all purposes, the beliefs of Mr. and Mrs. Townley are the beliefs and tenets of the Townley Company.“). Thus, the rights at issue are those of Jake and Helen Townley.15
To determine whether the application of Title VII to this employment policy violates Mr. and Mrs. Townley‘s Free Exercise rights, we must weigh three factors: “(1) the magnitude of the statute‘s impact on the exercise of a religious belief; (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief; and (3) the extent to which recognition of an exemption from the statute would impede objectives sought to be advanced by the statute.” EEOC v. Fremont Christian School, 781 F.2d 1362, 1367 (9th Cir.1986); see United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (“The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.“).
Nevertheless, viewing the evidence in the light most favorable to the Townleys, it is clear that enjoining the services would make it more difficult for them to impart their religious message to their employees, and therefore to some extent would adversely affect their religious practices.
The strength of the government‘s interest in eradicating discrimination through Title VII is also clear. We have stated that “Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.” Pacific Press, 676 F.2d at 1280. Protecting an employee‘s right to be free from forced observance of the religion of his employer is at the heart of Title VII‘s prohibition against religious discrimination.
Finally, we must consider whether the elimination of mandatory attendance at the devotional services constitutes an application of Title VII that is the “least restrictive means” of furthering the state‘s goal. We have said that this is “the critical aspect of the free exercise analysis.” Callahan v. Woods, 736 F.2d 1269, 1272 (9th Cir.1984). Callahan teaches that we measure the importance of a regulation by ascertaining the marginal benefit of applying it to all individuals, rather than to all individuals except those holding a conflicting religious conviction. If the compelling state goal can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest. Id. at 1272-73 (citation omitted). Here, there is no doubt that to force the employee Pelvas to attend Townley‘s devotional services would seriously impede Title VII‘s goal.
The rights of the Townley‘s under the Free Exercise Clause do not alter this conclusion. We recognize that allowing a statute to limit a constitutional right alters the normal relationship between a statutory right and a constitutional one. Nevertheless, it is settled that the right to religious practice (unlike the right to religious belief) may be limited by a statute if “it is essential to accomplish an overriding governmental interest.” United States v. Lee, 455 U.S. 252, 255, 102 S.Ct. 1051, 1054, 71 L.Ed.2d 127 (1982); see Braunfeld v. Brown, 366 U.S. 599, 603-04, 81 S.Ct. 1144, 1145-46, 6 L.Ed.2d 563 (1961); Callahan v. Woods, 736 F.2d 1269, 1272-73 (9th Cir.1984); Scott v. Rosenberg, 702 F.2d 1263, 1273-74 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).
Any reluctance to apply this teaching is lessened by the nature of the conflict in this case. Both the Townleys and Pelvas seek to pursue a religious practice. Where the practices of employer and employee conflict, as in this case, it is not inappropriate to require the employer, who structures the workplace to a substantial degree, to travel the extra mile in adjusting its free exercise rights, if any, to accommodate the employee‘s Title VII rights.17
The transcendent principle in cases of this sort is accommodation. Where the religious practices of employers, such as the Townleys, and employees conflict, Title VII does not, and could not, require individual employers to abandon their religion. Rather, Title VII attempts to reach a mutual accommodation of the conflicting religious practices. This is consistent with the First Amendment‘s goal of ensuring religious freedom in a society with many different religions and religious groups.
Townley‘s request for attorney‘s fees is denied. Each party shall bear its own costs on appeal.
We affirm in part and reverse and remand in part.
NOONAN, Circuit Judge, dissenting:
In the performance of its mission in this case, the EEOC is asserting a position that, like the Townley Manufacturing Company‘s, must find its roots in the First Amendment. The right to believe necessarily implies the right not to believe. Conscience cannot be governmentally coerced. The Free Exercise Clause embraces the atheist with the orthodox. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). To exempt an activity from governmental regulation because of its religious nature is to accord a benefit to religion. Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 107 S.Ct. 2862 at 2874, 97 L.Ed.2d 273 (1987) (O‘Connor, J., concurring). The EEOC could not exempt the Townley Manufacturing Company to the disadvantage of Pelvas if the effect of exemption were to coerce Pelvas to practice the company‘s religion or to give up his own.
No such showing of coercion has been made. According to Pelvas he was explicitly told that if he attended the prescribed meetings he could wear ear plugs and read a book or sleep. Wearing ear plugs, he was not exposed to hearing a word of doctrine subversive of his atheism. Reading a book or sleeping, he was not participating in any form of worship.
One can readily imagine gatherings of worshippers where merely entering the church or crossing the temple door in their company would be a symbolic act committing one to worship. Compulsion to attend such gatherings would be deeply offensive to the conscience. One can readily imagine schoolchildren summoned to an auditorium and subjected to religious propaganda. Compulsion of the children would be equally obnoxious to religious freedom. But the gatherings to which Pelvas has objected took place on company property during company time; and he was no child but a mature man. Presence at the gathering was not a religious act nor, as far as the record shows, a symbolic association with worship nor subjection to a religious message. Indeed what Pelvas was permitted to do was the antithesis of worship, the opposite of indoctrination. He was allowed to disassociate himself in the most public way from the devotional services that were conducted. He was allowed to turn off and shut out the inspirational message. If he had been discharged or penalized or even ostracized for such behavior he and the EEOC would have cause for complaint. But in fact there has been no showing that such acts as he was permitted to perform, contemptuous as they were of the services, have been or would have been the subject of discipline or disadvantage to Pelvas. The Townley Manufacturing Company has already accommodated Pelvas’ conscientious unwillingness to participate in its services.
The court appears to gloss Sec. 701(j) to mean that the employer must accept the employee‘s proposed accommodation unless the employee‘s proposal causes undue hardship. That is not the law: “By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.... Thus, where the employer has already reasonably accommodated the employee‘s religious needs, the statutory inquiry is at an end.” Ansonia Bd. of Education v. Philbrook, 479 U.S. 60, 68, 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (1986); see also Hudson v. Western Airlines, 851 F.2d 261 (9th Cir.1988).
That transcendent principle is at the center of the Religious Clauses embodied in the First Amendment to the Constitution. The First Amendment, guaranteeing the free exercise of religion to every person within the nation, is a guarantee that Townley Manufacturing Company rightly invokes. Nothing in the broad sweep of the amendment puts corporations outside its scope. Repeatedly and successfully, corporations have appealed to the protection the Religious Clauses afford or authorize. Amos, supra (1987); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). Just as a corporation enjoys the right of free speech guaranteed by the First Amendment, Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), so a corporation enjoys the right guaranteed by the First Amendment to exercise religion.
The First Amendment does not say that only one kind of corporation enjoys this right. The First Amendment does not say that only religious corporations or only not-for-profit corporations are protected. The First Amendment does not authorize Congress to pick and choose the persons or the entities or the organizational forms that are free to exercise their religion. All persons—and under our Constitution all corporations are persons—are free. A statute cannot subtract from their freedom.
If it were otherwise, we would be back to the bad old days when state governments insisted that religious organizations incorporate in accordance with state law if they wanted to enjoy the benefits made available by the state. E.g., Barnes v. First Parish of Falmouth, 6 Mass. 401 (1810). Barnes attempted to force state incorporation upon Baptists who believed that incorporation was unChristian surrender to the state. See 2 McLaughlin, New England Dissent 1630-1833 1088 (1971). Barnes was possible only in a jurisdiction that frankly recognized a church established by the state. The Barnes court could insist on the form prescribed by the state because the court could celebrate “this religion, as understood by Protestants ... [which] was by the people established as a fundamental and essential part of their constitution.” Barnes, supra, at 406. Such establishment, such forcing of a governmentally chosen form upon religious activity, is incompatible with the Religious Clauses.
True, Congress may create a bright line and exempt from regulation all of the nonprofit activity of religious corporations. Amos, supra. The reason is that regulation would chill religious organizations if they had to speculate which of their nonprofit activities a court would label religious. Id. at 2872-73 (Brennan, J., concurring). That a bright line may constitutionally be created does not mean that on a case-by-case basis other activities, asserted to be religious, may not be found to fall within the First Amendment‘s protection.
Amos did not pretend to decide whether the business activity of a religious corporation should be exempted, see id. at 2875 (O‘Connor, J., concurring); and we do not face here the question unresolved in Amos. But we meet a parallel question: what exemption from governmental interference is required by the First Amendment as to the religious activity of a business corporation?The First Amendment by its express terms is directed against Congress prohibiting the free exercise of religion. Remarkably and regrettably when Congress has found a national interest to be of sufficient importance to be incorporated into federal legislation and that legislation has conflicted with the free exercise of religion, the Supreme Court of the United States has uniformly found the national interest to outweigh the claims of conscience and permitted Congress to prohibit the free exercise of religion in conflict with the legislation. This bleak record is mitigated because the Court has sometimes reinterpreted a federal statute to accommodate the Free Exercise claim. E.g. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). But where the Free Exercise claim has been pressed and the federal statute not glossed, the result has not been good for Free Exercise. School boards, municipalities, states have been subjected to the standard set by the Religious Clauses. When Congress has legislated, the legislative objective has overborne the claims of conscience. The Amish have been forced to contribute to Social Security despite their contention that their religion prescribed other ways of caring for the community. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). Conscientious objectors to war have been compelled to serve in the armed forces contrary to their most deeply held principles. Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). The property of the Mormon church has been confiscated by congressional command in order to force conformity contrary to the religious principles of the afflicted church. Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 478 (1890). In all, in nineteen cases the court has upheld congressional legislation in the face of the Free Exercise Clause. The courts of appeal have followed suit. See Appendix to this dissent.
Secular men and women take secular values seriously. Men and women of the world believe that the world‘s business is important. When Congress elevates this business to a national priority it has been all too easy for officers of the government and even judges to ignore the countervailing command of the Constitution. In the Supreme Court the Constitution has been no shield for the spirit when Congress has ordained that the spirit must yield to secular needs.
Despite these lessons of history it remains possible to say that the Religious Clauses are unimpaired in what they require of civilized government. The weighing of the claims of Congress is not to be carried out with a tilt in favor of Congress.
The result should not be foreordained by Congress choosing a secular value as overriding. The
Who sweeps a room as for Thy cause
Makes that, and the action, fine.
APPENDIX
A. Decisions of the Supreme Court of the United States Sustaining Congressional Legislation Against A Claim That The Legislation Violated The Free Exercise Clause.
B. Decisions of the Supreme Court of the United States Sustaining State Action Against A Claim That The Action Violated The Free Exercise Clause
| CASE | CITATION | CHALLENGED MATTER | VIOLATIVE OF FREE EXERCISE CLAUSE |
|---|---|---|---|
| Board of Education v. Allen | 392 U.S. 236 (1968) 88 S.Ct. 1923 20 L.Ed.2d 1060 | state educational statute | no |
| Poulos v. New Hampshire | 345 U.S. 395 (1953) 73 S.Ct. 760 97 L.Ed. 1105 | city licensing ordinance | no |
| Zorach v. Clauson | 343 U.S. 306 (1952) 72 S.Ct. 679 96 L.Ed. 954 | state educational statute | no |
| In re Summers | 325 U.S. 561 (1945) 65 S.Ct. 1307 89 L.Ed. 1795 | state bar provision | no |
| Prince v. Massachusetts | 321 U.S. 158 (1944) 64 S.Ct. 438 88 L.Ed. 645 | state employment statute | no |
| Minersville School District v. Gobitis | 310 U.S. 586 (1940) (overruled, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)) 60 S.Ct. 1010 84 L.Ed. 1375 | state educational provision | no |
| Hamilton v. University of California | 293 U.S. 245 (1934) 55 S.Ct. 197 79 L.Ed. 343 | state educational regulation | no |
C. Decisions of the Supreme Court of the United States Invalidating State Action As A Violation of the Free Exercise Clause
U. S. COURT OF APPEALS
D. Decisions of the United States Courts of Appeals Sustaining Congressional Legislation Against A Claim That the Legislation Violated The Free Exercise Clause
| CASE | CITATION | CHALLENGED MATTER | VIOLATIVE OF FREE EXERCISE CLAUSE |
|---|---|---|---|
| United States v. Slabaugh | 848 F.2d 113 (8th Cir.1988) | federal marshal‘s regulation | no |
| Hernandez v. Commissioner of Internal Revenue | 819 F.2d 1212 (1st Cir.1987) | federal tax provision | no |
| Nelson v. I.R.S. | 796 F.2d 164 (6th Cir.1986) | federal tax provision | no |
| United States v. Allen | 760 F.2d 447 (2d Cir.1985) | federal property statute | no |
| Volunteers of America v. N.L.R.B. | 752 F.2d 345 (8th Cir.1985) | federal agency order | no |
| United States v. Rush | 738 F.2d 497 (1st Cir.1984) | federal drug statute | no |
| Denver Post v. N.L.R.B. | 732 F.2d 769 (10th Cir.1984) | federal agency order | no |
| St. Elizabeth Community Hospital v. N.L.R.B. | 708 F.2d 1436 (9th Cir.1983) | federal labor statute | no |
| Wilson v. Block | 708 F.2d 735 (D.C.Cir.1983) | federal agency plans | no |
| United States v. Middleton | 690 F.2d 820 (11th Cir.1982) | federal drug statute | no |
| Tressler Lutheran Home v. N.L.R.B. | 677 F.2d 302 (3d Cir.1982) | federal agency order | no |
| E.E.O.C. v. Pacific Press | 676 F.2d 1272 (9th Cir.1982) | federal employment statute | no |
| N.L.R.B. v. St. Louis Christian Home | 663 F.2d 60 (8th Cir.1981) | federal agency order | no |
| E.E.O.C. v. Southwestern Baptist | 651 F.2d 277 (5th Cir.1981) | federal employment statute | no |
| E.E.O.C. v. Mississippi College | 626 F.2d 477 (5th Cir.1980) | federal employment statute | no |
| Sequoyah v. T.V.A. | 620 F.2d 1159 (6th Cir.1980) | federal dam project | no |
| United States v. Holmes | 614 F.2d 985 (5th Cir.1980) | federal tax provision | no |
| Proffitt v. Ciccone | 506 F.2d 1020 (8th Cir.1974) | federal prison regulations | no |
| United States v. Huss | 482 F.2d 38 (2d Cir.1973) | federal contempt decree | no |
| Christian Echoes v. United States | 470 F.2d 849 (10th Cir.1972) | federal tax provision | no |
| Smilow v. United States | 465 F.2d 802 (2d Cir.1972) (vacated on other grounds, 409 U.S. 944, 93 S.Ct. 268, 34 L.Ed.2d 215 (1972)) | federal contempt decree | no |
| McClure v. Salvation Army | 460 F.2d 553 (5th Cir.1972) | federal employment statute | no |
| United States v. Spears | 443 F.2d 895 (5th Cir.1971) | federal drug statute | no |
| United States v. Wilson | 440 F.2d 382 (8th Cir.1971) | federal conscription provision | no |
| United States v. Reeb | 433 F.2d 381 (9th Cir.1970) | federal conscription provision | no |
| Hearde v. Commissioner | 421 F.2d 846 (9th Cir.1970) | federal tax provision | no |
| O‘Brien v. Blackwell | 421 F.2d 844 (5th Cir.1970) | federal prison regulations | no |
| Leary v. United States | 383 F.2d 851 (5th Cir.1967) (reversed on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)) | federal drug statute | no |
| Application of Georgetown | 331 F.2d 1000 (D.C.Cir.1964) | federal judicial order | no |
| Otten v. Staten Island Rapid Transit | 229 F.2d 919 (2d Cir.1956) | federal labor regulation | no |
| Mitchell v. Pilgrim Holiness Church | 210 F.2d 879 (7th Cir.1954) | federal labor regulation | no |
| Cannon v. United States | 181 F.2d 354 (9th Cir.1950) | federal conscription provision | no |
| Roodenko v. United States | 147 F.2d 752 (10th Cir.1945) | federal conscription provision | no |
| Hopper v. United States | 142 F.2d 181 (9th Cir.1944) | federal conscription provision | no |
E. Decision of the United States Courts of Appeals Sustaining State Action Against A Claim The Action Violated The Free Exercise Clause
| CASE | CITATION | CHALLENGED MATTER | VIOLATIVE OF FREE EXERCISE CLAUSE |
|---|---|---|---|
| Wilder v. Bernstein | 848 F.2d 1338 (2d Cir.1988) | state childcare scheme | no |
| Smith v. North Babylon Bd. of Education | 844 F.2d 90 (2d Cir.1988) | school board regulation | no |
| Allen v. Toombs | 827 F.2d 563 (9th Cir.1987) | state prison regulation | no |
| Mozert v. Hawkins | 827 F.2d 1058 (6th Cir.1987) | school board regulation | no |
| Paul v. Watchtower | 819 F.2d 875 (9th Cir.1987) | state court decree | no |
| Martinelli v. Dugger | 817 F.2d 1499 (11th Cir.1987) | state prison regulations | no |
| Fellowship Baptist Church v. Benton | 815 F.2d 485 (8th Cir.1987) | state educational statute | no |
| Phan v. Virginia | 806 F.2d 516 (4th Cir.1986) | state constitutional provision | no |
| Azeez v. Fairman | 795 F.2d 1296 (7th Cir.1986) | state prison regulations | no |
| Capoeman v. Reed | 754 F.2d 1512 (9th Cir.1985) | state prison regulations | no |
| Catholic High School Ass‘n v. Culvert | 753 F.2d 1161 (2d Cir.1985) | state labor regulation | no |
| Dreibelbis v. Marks | 742 F.2d 792 (3d Cir.1984) | state prison regulations | no |
| Pinsker v. Joint District | 735 F.2d 388 (10th Cir.1984) | school district regulation | no |
| Grosz v. Miami Beach | 721 F.2d 729 (11th Cir.1983) | city zoning ordinance | no |
| Madyun v. Franzen | 704 F.2d 954 (7th Cir.1983) | state prison regulation | no |
| Lakewood Congregation v. Lakewood | 699 F.2d 303 (6th Cir.1983) | city zoning ordinance | no |
| Int‘l Soc. for Krishna Consciousness v. City of Houston, Tex. | 689 F.2d 541 (5th Cir.1982) | city solicitation ordinance | no |
| Menora v. Illinois High School Ass‘n | 683 F.2d 1030 (7th Cir.1982) | state educational regulation | no |
| Rogers v. Scurr | 676 F.2d 1211 (8th Cir.1982) | state prison regulations | no |
| Africa v. Pennsylvania | 662 F.2d 1025 (3th Cir.1982) | state prison regulations | no |
| Imam Ali Abdullah Akbar v. Canney | 634 F.2d 339 (6th Cir.1980) | state prison regulations | no |
| Walsh v. Louisiana High Athletic Assn. | 616 F.2d 152 (5th Cir.1980) | state educational regulation | no |
| Int‘l Soc. for Krishna Consciousness v. Eaves | 601 F.2d 809 (5th Cir.1979) | municipal solicitation ordinance | no |
| Arsberry v. Sielaff | 586 F.2d 37 (7th Cir.1978) | state prison regulations | no |
| Kennedy v. Meacham | 540 F.2d 1057 (10th Cir.1976) | state prison regulations | no |
| LaReau v. MacDougall | 473 F.2d 974 (2d Cir.1972) | state prison regulations | no |
| Brooks v. Wainwright | 428 F.2d 652 (5th Cir.1970) (contra 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)) | state prison regulation | no |
| Brown v. Wainwright | 419 F.2d 1376 (5th Cir.1970) (contra 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)) | state prison regulations | no |
| Sharp v. Sigler | 408 F.2d 966 (8th Cir.1969) | state prison regulations | no |
| Evans v. Ciccone | 377 F.2d 4 (8th Cir.1967) | state prison regulation | no |
| Sostre v. McGinnis | 334 F.2d 906 (2d Cir.1964) | state prison regulations | no |
F. Decisions of the United States Courts of Appeals Invalidating State Action As a Violation of the Free Exercise Clause**
| CASE | CITATION | CHALLENGED MATTER | VIOLATIVE OF FREE EXERCISE CLAUSE |
|---|---|---|---|
| Murphy v. Missouri Dep‘t of Corrections | 814 F.2d 1252 (8th Cir.1987) | state prison regulation | yes |
| Barrett v. Com. of Va. | 689 F.2d 498 (4th Cir.1982) | state prison regulations | yes |
| Gallahan v. Hollyfield | 670 F.2d 1345 (4th Cir.1982) | state prison regulation | yes |
| Burgin v. Henderson | 536 F.2d 501 (2d Cir.1976) | state prison regulation | yes |
| Teterud Burns | 522 F.2d 357 (8th Cir.1975) | state prison regulation | yes |
| Neal v. Georgia | 469 F.2d 446 (5th Cir.1972) | state prison regulation | yes |
| Walker v. Blackwell | 411 F.2d 23 (5th Cir.1968) | state prison regulations | yes (in part) and no (in part) |