*1 Minnesota, the Matter STATE McCLURE, Marilyn and her suc E. Gomez-Bethke, cessor, Irene Commis
sioner, Rights, Department Human (CX- (C4-84-771) Relator, Respondent
84-936),
v. CLUB, INC., HEALTH AND
SPORTS Sports and Health Park
d.b.a. St. Louis (C4-84-771) Relators, al., Club, Re et (CX-84-936).
spondents, C4-84-771, CX-84-936.
Nos. Minnesota.
Supreme Court
May 1985.
Rehearing Denied June 1985. also, Minn.App., 365 N.W.2d
See *2 III, Gen., Humphrey, Atty. H.
Hubert Cutter, Paul, State, Elizabeth V. St. et al.
Clyde Anderson, Minneapolis, F. Club, Sports and Health Inc. Heard, considered and decided en court banc.
KELLEY, Justice. against appellants Sports
In this action Club, (Sports and Health Inc. Health)1, Owens, Crevier, appellants. appellants Forest Lar- also For convenience Arthur Marc son, Club, Sports owners of and Health Inc. are Because the class certification was un acting Commissioner of er. respondent, Department duly scope, of Human narrow we reverse class Minnesota (Commissioner) enjoin cer sought to order.2 certification ac appellants. These tain actions Owens, Arthur Marc Forest Crevier prospective questioning tions consisted operate Sports and Health Larson own *3 and reli about marital status employees Club, Inc., closely-held, for-profit Min- terminating employees of because gion; corporation. Sports nesota and Health religious beliefs; refusing in to difference Club, operates sports Inc. and health seven employees differing of re promote because metropol- in operations the Twin Cities club beliefs; failing provide and to ligious recreational provides itan area. Each and The mat public accommodations. “open” counseling exercise facilities re- as well by hearing heard examiner who ter was garding appropriate programs exercise that, fact, engaged in had appellants found 18,000 Approximately members. to practices in violation of in the asserted people currently employed by are the (1983) (Minnesota Hu ch. 363 Minn.Stat. parties The the agree clubs. clubs’ Act). hearing examiner Rights man excellent, by facilities are described some practices. enjoined continuation of those industry,” and as the “Cadillac of the appellants Throughout proceedings, these membership generally dues are lower than Human asserted the Minnesota have competition Minneapolis- those of the Act, facially applied, uncon Rights and as metropolitan St. Paul area. stitutionally infringes upon rights their Owens, are Crevier and Larson “born- speech, exercise of reli freedom of free again” Christians. Their fundamentalist In addi gion, and freedom association. them to in religious require convictions act tion, sufficiency appellants challenge teachings of accordance with the Jesus hearing to offi the evidence sustain and the will of God their business Christ law, findings and conclusions of cer’s lives. personal as well as their These certifying hearing order examiner’s held, deeply supported are convictions classes, they the same claim violates scripture, sincere.3 Biblical rights. respondent Com constitutional Sports The owners of and Health admit hearing challenges the examin missioner religious practices spill and beliefs their refusing certify to certain er’s order into, require, employ- their Min over fact we that the classes. Since conclude practices. practices ment These consist of imper- Human nesota Act does prospective employees infringe upon questioning about missibly appellants’ constitu applied religion, terminating to marital status and rights, facially either or as tional hearing employees examin a difference in we affirm the other because of appellants, Sports them to as and Health unless cide these motions but reserved hearing until a will be referred merits, being on the but before able to otherwise indicated. so, petition do for accelerated review had granted been court. Later the Commis- procedural history of this case is some- 2. The petition to sioner’s this court for acceleration of Sports and Health first what convoluted. pending Appeals appeal its in the Court sought before Court review the Minnesota Sports ap- and Health’s for consolidation with peal Subsequently, Appeals granted. which was granted. appellants was Meanwhile moved petition re- Sports and Health’s for accelerated appeal dismiss the because to Commissioner’s granted Commis- this court. The view appeal she had failed to file a brief in her within Appeals moved the Minnesota Court of sioner Minn.R.Civ.App.P. days required by 131.01. Sports appeal and Health's dismiss Therefore, are both motions to dismiss before hearing sought ground examiner’s orders final, the court at this time. appealed from were not and therefore unappealable. Later the Commissioner filed hearing religious clearly are appeal the owners from the examiner in 3. The beliefs of her own ruling addressing Appeals challenging legitimate. In the issues here the Court of given presented, scrupulously due def- aid and abet we have individual defendants did not three these corporate appellants beliefs and the denial of class erence reaching consideration Appeals de- our The Court of did not decision. certification. beliefs; refusing em- on their promote belief that are for- differing religious God, Bible, be- ployees because bidden as set forth in the liefs; failing provide “open” accom- (See work with “unbelievers.” 2 Corinthi- practices In some modations. instances 6:14-18). Sports ans and Health also ad- illegal by hearing examin- were found mits that Bible are a studies substantial instances, allegations In other no er. part weekly meetings managers. illegality operation were asserted. Voluntary Bible studies also held for all clubs, of the the owners share an evan- personnel. sales gelical proselytize or convert oth- fervor Finally, interpretation based on an of the place ers to their beliefs. The owners book Bible, hire, Sports and Health will not racks in the entrance of each club contain- fire, living will individuals with but not literature. The state claimed Christian sex; opposite married to a illegal no on this action. conduct based working young, single woman without her *4 prospective employees, all Interviews of father’s consent or a married woman work- locker-room attend- exception with the consent; per- without her husband’s a in babysitters, and are conducted vio- ants commitment to a son whose non-Christian l(4)(a) 363.03, subd. lation of Minn.Stat. § religion strong; and someone who interviews, (1982).4 applicants In those Bible,” “antagonistic to the which accord- church, whether attend were asked ing to 5:19-21 includes fornica- Galations divorced, Bible, are married or read the hearing exam- tors and homosexuals. engage pre-marital in or extra-marital pray, in practice iner found this to be violation of relations, God, in heaven or sexual believe 363.03, 1(2) (1984).5 Minn.Stat. subd. § hell, questions of a na- and other Sports hiring and and Health defended its explains prac- this Sports ture. and Health firing actions on individual violations prospective attempt tice as an to advise rigid (requir- rules on the work based Bible interview, ex- employees, during the of the discipline ing high degree and submis- fervent beliefs to istence of owners’ siveness),6 “backbiting” “non-joyful” and sincerely their held be- determine whether part employee, and in attitude on the may prospective employee. liefs offend hired, applicants case on the lack Moreover, Sports and Health believes the spirit” “disciplined life- of a “teachable and help the questions answers to the will own- maintain are more style,” which owners (1) applicant possesses ers determine if the background in important than a technical (2) spirit” follows a “disci- “teachable sales, nutrition. exercise and/or plined style.” life belief Appellants assert sincere Sports and Health admits born- ex- practices proper lawful their again permitted to be man- Christians speech, free rights of the of free ercises managers. hearing agers or assistant religion freedom of associa- exercise of illegal practice found this to be examiner guaranteed by the First Amendment Sports Act. tion Human under the and Article policy by relying the United States Constitution justifies rigid Health 5. Minn.Stat. § vides, employment practice pertinent part, practice marital mation that * * * religion, refuse to hire ment; Minn.Stat. status * * require * * * (b) pertinent part, pertains [*] * * [f]or 363.03, * * that "it sex, discharge [an *." * an marital status applicant] * subd. is an unfair employer, * * * subd. * * that "it is an l(4)(a) [f]or employee; 1(2) provides, to furnish seeking employ- because of an * * (1984) sex, * * employer *, ** unfair (a) infor- * pro- * * 6.For tain a certain number for sales. Some ments solicit prospects be requirements for the “referral" grams system imposed member members. instance, potential periodic (for be appointments; periodically prospective recorded; updated; weighing the Clubs use a "book” members; are: logging required updated; that lists that the features of the “book” members) of “referral” that each requirement measuring "cold" calls and "cold” members’ of clients and service of a each recording appoint- calls to system of the to ob- week; pro- and, accordingly, granted, the Minnesota Constitution. the Commission Section 16 of motion to dismiss is denied. forms the main contention er’s This assertion this case. (b) Sports and Health contends the Com- (Case CX-84-936) allegations appeal
Despite all the discrimination missioner’s Sports in this case and Health has should be dismissed because the Commis- asserted employ, days did not file her brief employed, and continues to mar- sioner within male persons, required by Minn.R.Civ.App.P. ried and female unmarried 131.01. persons, and divorced males and females of In fact the Commissioner has never filed Sports races. The and Health appeal. various in that the relator’s brief How- employed, have also ever, clubs and continue to did brief issues she Commissioner persons employ, of various faiths appeal responding raised in her in her brief —Jews, Catholics, Roman Protestants of Sports appeal to the brief of and Health denominations, long various and others —so Sports C4-84-771. We note that persons other are not offended as such technically Health’s dismissal motion is faith, antagonistic to- the owners’ are not Minn.R.Civ.App.P. meritorious. 142.02. comply gospel the Christian and will ward However, grant this court did the Commis- management’s work rules a cheer- with petition sioner’s for accelerated review and spirit. ful and obedient (CX-84-936), appeal of her consolidation (C4-84- Sports appeal and Health’s (1) pending address first the motions We 771) argument and ordered counsel on oral to dismiss. prepared to be discuss substantive *5 (a) The Commissioner contends that fact, appeal. in each In issues raised coun- Sports appeal and Health’s from the hear argument, sel did discuss all issues on oral (C4-84-771) ing examiner’s orders should court, and, pursuant Sports to leave of the liability respect be dismissed with responding and Health did file a brief appeals the are class certification because by issues raised the Be- Commissioner. appeal may from orders from which an rights prejudiced, cause no have been they since are not final within the be taken parties given oppor- the have since been meaning Minn.R.Civ.App.P. of 103.03. We tunity argue brief issues raised address the in this case. need not issue Commissioner, by grant discre- we will discretionary grant choose to review of We tionary review of those issues in the inter- by Sports the issues raised and Health’s justice. est of re In Commodore Hotel appeal “appro this is one of those because Cases, Explosion supra. Fire & justice priate cases where the interest (2) merits, Turning requires liability immediate review of de we ad damages Sports dress first and Health’s contention terminations before issue fact, litigated.” findings that conclusions of has In re Commodore been law, Case, hearing Explosion 318 N.W.2d and orders of the examiner Hotel Fire & 244, 247, (Minn. 1982), evidence Sigler “unsupported n. 2 also v. substantial see Bank, entire record as a whole.” First American National 325 view of the (1982). 136, 137, examining In (Minn.1982). n. 1 14.69 Sports N.W.2d Minn.Stat. § contention, permitted we are not appeal and Health’s is this court before granted our view of the evidence for that we accelerated review. substitute because if Minn.R.Civ.App.P., adopted by hearing examiner sub providing Rulé 118 of review, incorporates supports stantial evidence in the record for accelerated ref discretionary County decision. Dakota Abstract erence the review found See 353, 356, Richardson, fully 312 Minn. 252 117. The issues have been Co. v. Rule (1977). 126-27 The test for proceeding. in an The N.W.2d briefed adversarial specific finding justice, deciding determining all issues whether a interest of supported by substantial evidence is wheth arising hearing from the examiner’s order evidence, entirety, in its compels to the conclu er the considered proceeding, in one us evidence; (2) (1) more than a scintilla of discretionary review should be sion that might accept considering mind it complaint, such that a reasonable each hearing conclusion; (3) support prima examiner found a adequate showing facie Sports “some evidence” and more than discrimination. more than and Health then presented evidence in an “any Taylor attempt v. Beltrami Elec- evidence”. to estab- Inc., legitimate lish a Cooperative, nondiscriminatory 319 N.W.2d tric rea- (Minn.1982). son for the action taken. Sports Where the evidence is con- proferred Health employ- evidence that flicting may or more than one inference it, ees who were terminated had trouble findings drawn from the with hearing (the system” the “book basis of the clubs’ upheld. examiner must be City Minne- membership efforts); they solicitation Richardson, apolis 80, 88, v. 307 Minn. attitude, had a and uncooperative bad (1976). N.W.2d they had violated rules such as the use of this, In a contested case such as premises intoxicants on the or the unautho- prima Commissioner must make a facie “borrowing” money rized from certain showing discrimination defined funds; club personal or that did busi- (1982). employer Minn.Stat. 363.03 job, ness while on contrary company then legitimate has the burden to establish rules; as well as other claims of rule viola- nondiscriminatory reasons for the actions instance, tions. In each hearing exam- taken. The Commissioner then has the Sports iner held that and Health had ad- establishing burden of the reasons legitimate vanced nondiscriminatory pretext stated are a mere for discrimina discharges. Sports reasons for the tion. Hubbard v. United Press Interna Health likewise offered evidence articulat- Inc., 428, 441, tional 330 N.W.2d n. 12 why complainants reasons certain (Minn.1983). rejection religion, not hired such as their In this case there are numerous attitude”, their personali- “bad or that their charging parties.7 In examining the claim ty was not such as to demonstrate an abili- charging party, of each hearing exam get ty along people.8 hearing meticulously procedure iner followed the examiner found that these reasons for *6 outlined Hubbard. Several of Sports generally and Health’s actions were charges alleged Sports in and Health However, legitimate. considering both hiring practices its violated the statute promotional the claims of discrimination making inquiry religious discrimination, as to beliefs and hiring hearing ex- practices and marital status. Other aminer found the articulated reasons for charges alleged promotion practices that in pretextual taken and the actions were statutorily prohibited the same conduct oc employees’ real reasons related to the curred, charged beliefs, applicants’ religious while still others their em or lack there- of, ployment was terminated their and/or their because of marital status. Had we finder, partake might marital status and refusal in been the fact we have arrived religious place classes at the of business. at a different conclusion in some of these cases, Finally, complainant, replete one who was but the record is in demon- faith, alleges strating parties charging Jewish that she was each of the status, give up membership questioned forced to her in one of had marital been about and, indeed, by Sports religion, the clubs run and Health because several instances Health, Sports through “preached Sports its insistence at” officers of upon displaying fundamentalist Christian Health at the time of their termination or application recognize literature in the literature racks denial. We club, intelligent en order to make em- sports and on the walls of the informed and decisions, per- gaged ployment employers that was to her. must be conduct offensive group, being queried charging party after 7. A is a who claims he or 8. One or two of this status, religion illegally against by she about attitude toward or marital discriminated pursue employment application. employer. did not an 850 employ- arguments. assert its leeway question
mitted
an
constitutional
some
corporation
here is not
ee or
his or her back-
issue
whether a
has
applicant about
ground,
perspective.9
“standing”
litigate,
upbringing and
but rather whether
Health, in
case, however, Sports
Sports
“standing”
this
and Health has
to assert
instances,
beyond legally
far
some
went
the first amendment as a
defense to
questioning appli-
permissible bounds
claims of discrimination. The Commission
clearly
The evidence
employees.
cants and
conclusory
er’s
assertion
corporation
that a
findings
hearing
substantiates
right
has no constitutional
to free exercise
questioning concerning
reli-
examiner
religion
unsupported by any
cited
beliefs,
gious
practices
concerning
Though
precisely
point,
authority.
permeated
marital status
Supreme
per
the United States
Court has
process and were the true reasons for the
employers, corporate
indi
mitted
as well as
by Sports
actions taken
and Health.10
viduals,
rights.
to assert first amendment
e.g.
See
First National Bank
Boston v.
(3) We come then to the crucial issue: do
Bellotti,
765,
1407,
435 U.S.
98 S.Ct.
fact,
findings
conclusions of law and
(freedom
(1978)
speak
L.Ed.2d 707
on a
hearing
orders
examiner unconstitu-
issue);
Lee,
referendum
v.
United States
tionally infringe upon Sports and Health’s
252,102
1051, 71
455 U.S.
S.Ct.
L.Ed.2d 127
speech,
freedom of
free exercise of reli-
(1982)(individual employer claimed that his
beliefs,
gious
and freedom of
association
rights
religion
free
exercise of
provided by the First Amendment to the
by facially
governmental
violated
neutral
1,
and Article
United States Constitution
Act).
Security
law—the Social
See also
Section 16 of the Minnesota Constitution?11
Tony
v.
Alamo
Donovan
and Susan
(a)
preliminary
address first a
We
(8th
Foundation,
Cir.1983),
851
doing,
By
The fact remains that he did.
so
But that does not resolve the issue.
action,
When an
Owens',
Larson,
reality,
individual’s
exercised un
Crevier and
der
guarantees,
first amendment
violates a
asserting
the ones
the first amendment
facially
regulation
neutral
such as the Min
Thus,
religion.
right to the free exercise of
Rights Act,
nesota Human
the courts fol
“stand-
we conclude the Commissioner’s
step analysis
low a three
to determine
impediment
ing” argument presents no
whether
exemption
a constitutional
is re
allowing the
issue to be as-
constitutional
quired. Using
analysis,
we first must
serted in this case.
requirements
determine whether the
of the
(b)
argues
if
Sports and Health
Rights
Human
actually impose
Act
a bur
employment discrimination
violations of the
upon Sports
den
and Health’s free exercise
public
accommodation sections of the
Lee,
religion.
See United States v.
455
Rights
Minnesota Human
Act are sus-
252, 257,
1051,
U.S.
1055,
102 S.Ct.
tained,
protected
such conduct is
under the
(1982). Second,
L.Ed.2d 127
if such a bur
right to exercise
under the United
exist,
den is found to
it must be determined
States and Minnesota Constitutions.13
justified
whether
the burden is
by a com
pelling government
interest. Bob Jones
Because the Staté of Minnesota is
—
States,
University v. United
U.S.-,
attempting
regulate religious
neither
be
2017, 2035,
(1983).
103 S.Ct.
Accordingly,
(city’s
while the freedom to
interest
in compliance with
an absolute constitution-
zoning
beliefs is
ordinance sufficiently compelling to
right
practice
right,
al
an individual’s
outweigh
right
constitutional
to free exer
circumstances,
religion, in certain
or her
religion).
cise of
See also United States v.
governmental
may
subject to reasonable
Lee,
252,
455 U.S.
1051,
102 S.Ct.
71
government
if the
an over-
regulations
has
(1982);
L.Ed.2d 127
Equal Employment
compelling interest.
riding
See Cantwell Opportunity Commission v.
Press
Pacific
Connecticut,
296, 303-4,
310 U.S.
v.
Association,
Publishing
(9th
The state’s
contention is buttressed
rejected the law
appli
firm’s defense that
number of recent decisions of the federal
cation of Title
infringe upon
VII would
courts.
University,
See Bob Jones
103 firm’s
constitutional
first
amendment
(fundamental
overriding
S.Ct.
2034-35
rights
expression
and association.
In
governmental
in eradicating
interest
race
doing
majority
so the
stated:
discrimination can outweigh
person’s
Moreover, as we have held in another
right
religious beliefs);
to exercise
Roberts
context, “[ijnvidious private discrimina-
—
-,
Jaycees,
v. United States
U.S.
may
tion
be characterized as a form of
3244, 3253,
(1984)
104 S.Ct.
parties to this action on the theory questions there are of law or fact common they aided Sports and abetted class, the Health there exists sufficient similari- in engaging in the discriminatory practices. ty among members, of claims class there is e.g. See Minn.Stat. (1984). adequate representation class, subd. 6 of the Although hearing the respondent grounds the acted on give generally examiner did as one applicable reason for making injunctive the to the class might dismissal what “good called a appropriate. relief exception hearing faith” examiner upon based the sincerity ruled that the state established these crite- beliefs of three these individuals, ria relative to all classes for ruling which certifi- questionable, which is sought. Therefore, cation he was also based class of the ground dismissal on the persons required prohibited furnish in- that the proved Commissioner had that the formation must be certified. were, fact, three individuals corpora- the pierced veil,” tion. He then “corporate the provides 5000.1100 the hear Rule to hold them illegal liable for the actions of ing exercising examiner no room for discre Sports that, Having and Health. done he Moreover, tion. it is not in province the held it inappropriate to hold those indi- hearing power examiner’s to determine separately viduals aiding liable under the proven what claims cannot be further. abetting subdivision of the Human pinned Had the examiner his refusal Rights Act for corpora- actions certify required the class to furnish infor they already tion and had been held liable. mation on one of the factors found in Minn. By act of piercing “corporate his veil” 5000.1100, might Rule we be faced with a legal aiding abetting basis for an conclude, question. different We on re claim is nonexistent. State v. Striml mand, Cf. requested class should be certi (Minn.1978). ing, 265 N.W.2d fied. conclusion, agree. With that we deny We the Commissioner’s motion to (5) The sought Commissioner class appeal Sports dismiss the and Health. persons certification for all ap who had deny Sports We and Health’s motion to plied for with one of the clubs dismiss the appeal. Commissioner’s We af- Sports run and Health and who were hearing rulings firm the examiner’s required to regarding furnish information alleged proved by violations were sub- sex, religion. marital status The hear stantial evidence. We conclude that certify Rights examiner refused to facially class on Human Act is not unconsti- ground “it unduly would be burden tutional and that the state’s overriding compelling [Sports prohibiting some and unfair to and Health and interest discrimi- Owens, Crevier, in employment, nation it in- to include in while does Larson] * * * fringe upon appellant’s any exercise persons the class of reli- who [such] beliefs, gious constitutionally permissi- prove further cannot were not We hearing ble. reverse the examiner’s of one of hired because those reasons.” refusing certify order the class and re- argues that insertion of The Commissioner proceedings mand for further certification “fairness” consideration into the text for opinion. consistent with this Rights under the Human certification class error of law.17 Act is an COYNE, J., part took no in the considera- appropriate test for class certi tion or decision of this case. the Human Act is under fication PETERSON, (dissenting). Justice (1983) in Minn.Rule 5000.1100 contained 107(e)). rule, That (formerly presented Hum.Rts.Rule The issues in this case are of 23.01, pro- substantially profound importance any my like Minn.R.Civ.P. raised in law, Line, reviewing reviewing issues of No Power Inc. v. Minnesota Environmental Council, (Minn. agency Quality the decision of the 262 N.W.2d not bound court 1977). agency’s expertise. defer to the and need court, important is, by confession, personal issues of Owens years on this *11 1967, “Christian,” course, in A Early Christian. is one dur principle. constitutional professes term, who belief in the a “fundamentalist” my ing first Christianity. The Koch, Apostles’ centuries-old activist, publisher Gerda Christian Creed, a statement of the main Christian Action, defamatory made state Facts for as 150 early beliefs in use as A.D. and still concerning the late Professor Arnold ments throughout in by use Christendom both Rose; but, to the first amendment sensitive Protestants, Roman Catholics and recites: and speech press, I right of free wrote for I in judgment Almighty, court to reverse a believe God the Father a unanimous earth; Koch, 235, 154 Rose. v. Minn. of heaven and And in Je- Rose Maker (1967). Lord; sus our who Today, N.W.2d another “funda Christ Son Owens,1 Christian, by Ghost, Holy was the born mentalist” Arthur has conceived guilty violating pro Virgin Mary, found of the suffered under Pon- been various dead, Pilate, crucified, tius was visions the Minnesota Human bur- ied; Act, (1984), arising He into hell: the third ch. 363 out descended Minn.Stat. dead; day again rose from the He operate his determination to his busi He Inc., heaven, ness, Club, into the Sports Health accord ascended sitteth on right Almighty; hand of God the Father to what he understands to be command He judge New from thence shall come to the ments declared in the Old and Testa Holy constituting quick the Be and the dead. I in the ments Christian Bible. believe Ghost; holy Church; the catholic the ing no sensitive the constitutional less saints; forgiveness of communion of the guarantees of freedom free Const, sins, 1, body; and in the resurrection of the speech Minn. art. embedded everlasting. the life Amen. 3 and I would reverse conclu §§ departmental of the sions of law and orders Creed, Christology in its The Nicene similar hearing and dismiss these ac examiner by in adopted A.D. is used tions. Eastern Orthodox Churches.2 judi- has taken
Justice William Brennan
“characteristically
Chris-
cial notice of
I.
tian belief” that a Divine Saviour
Religious
and Practice in
pur-
Owens’
brought
and that the
into
world
Belief
-
Society
a Secular
illumi-
pose
was to
of His miraculous birth
redemp-
nate
toward salvation and
path
hearing
unique,
This case is
exam-
tion,
exclusive,
holy
precious and
“an
observed,
(hereafter examiner)
be-
iner
[path].”3
If these are basic beliefs
designed
protect
cause
statute
Christians, they
obviously
are
fundamental.
in-
religious from discrimination has been
Christian be-
nonreligious merely
described his
nom-
Owens
basic
voked
Owens,
terms: “born
particularized
lief in more
inally religious against
man
again,” “evangelical,” and “fundamental-
strong
and commitment.
religious belief
that,
have
They
many,
in
ist.”
terms
important
this case cannot be
issues
stereotype
negative re-
understanding
created a
to which
fully
without
understood
range from
actions
amusement
bemuse-
Owens himself.
against
presidents or the
party
complaint
rather than to the vice
whom
Owens
1. The formal
Inc.,
Club,
doing
corporate
Sports was made is
Health
name.
Minneapolis-
at seven locations in the
business
metropolitan
Its officers are Ar-
St. Paul
area.
in The
Apostles’
See
Creed and Nicene Councils
Owens, president
chief executive offi-
thur
cer,
late
Encyclopedia, Notes
World Book
Larson,
Crevier and Forest
vice
and Marc
Archbishop Fulton J. Sheen.
Owens,
religious and
presidents.
whose
busi-
fully
presi-
philosophy
the vice
shared
ness
dents,
—
-,
Donnelly,
Lynch
104 S.Ct.
U.S.
v.
figure
and dominant
the founder
1355, 1377,
(1984).
made aware of business lifestyle,” somewhat “disciplined it” sign, with unrecorded and a 14-foot-wide an [Owens], [your] during Q. the course United Did 6. The Statistical Abstract of the 1985 interview, showing you reports census aware States religious membership latest data as make beliefs, Amer- totals million a 139.6 that he was the fact showing survey 18 for icans. See note a running his business man and was Christian infra United States attendance actual church principles? according to the Christian and Minnesota. Yes. A. 7. Similar sans agerial giant more sent dozens of introverted For Iacocca, Carnegie (1984). illustrative: of ing [Institute courses] Chrysler most autobiography: opening prayer, are than following Institute. of them it made motivational-public speaking Iacocca: motivating Corporation, of Ford testimony Lee An "Management Motor other Iacocca, formerly man- sponsored by Autobiography 53-54 writes guys a company’s real difference.” of Nessa Company people,” to Dale in his best-sell- Moldo is and “I've and now Carnegie the Dale expense. courses, nothing L. [I] then Q. problem with A. I said Q. A. Yes. Q. A. him. A. No. lem Q. So Right. And what Did What did with [******] [******] you asked him he would he ask No my being I had no came to work? problem. you you? did he you answer? if whether problem Jewish say? that would be with have a working that. And prob- a 858 interchangeable attitudinal terms. “Disci- conspicuous of those found the ex “disciple,”
pline”
according to Web- aminer as violative of the anti-discrimina
Dictionary, have
ster’s
common connec-
tion statute. Commonsense and common
tion to the word “teachable.”
objec-
These
law, however, should make them the least
inquiry
tives involved
into family and mari-
subject to sanction. All employees, to a
status,
tal
first,
two reasons:
if it re-
extent,
or greater
lesser
a fiduciary
have
vealed
immoral relationship, Owens was
relationship to their employers, Restate
willing
not
to subsidize it with employment;
(Second)
2,
Agency
(1957),
ment
13
§§ second,
applicant
if the
came from a disci-
duty
act in
interests
plined
environment,
home
it
a fa-
revealed
employer
adversary.
and not as an
This
vorable likelihood
applicant
had
principle
greatly
has
been
diminished
authority, acceptance
learned submission to
following
decades
enactment modern
done,
of a task to be
capacity
com-
laws,
signifi
relations
but it most
labor
plete that
task.9 Owens considered that
uniformly
cant that those statutes
exempt
employees who
authority
resisted
and in-
managerial employees from adversarial col
demonstrated,
words,
struction
Owens’
bargaining
lective
relationships. The fed
They’re
“lack of enthusiasm.
not able to
Labor-Management
Act,
eral
Relations
do,
do,
don’t
want
these task
(1976),
U.S.C.
its definition of “em
things to
goals
reach the
that we have set
ployee,” expressly
“any
excludes
individual
(Emphasis supplied.)
for them.”
Owens
employed
supervisor.” Although
as a
believes,
surprisingly,
person’s
that a
no
“managerial
statute makes mention of
motivates,
any “permeates,
—if —
employee,”
construed,
fortiori,
it is
every thought
and directs
and action
life,”
person’s
private
public.
exclude them as well. See N.L.R.B. v. Bell
Aerospace Co.,
416 U.S.
S.Ct.
undisputed
no
It is
will be
*14
(1974).
Do not to work as (1984), pro Minn.Stat. subd. 2 unbelievers, for it with cannot be done. that “[sjupervisory employees vides shall right wrong can partners? How and be in not be considered the selection of a bar light togeth- can darkness How and live agent.” gaining Goldberg, Paul W. er? How can and the Devil Christ present director the Minnesota Bureau agree? What a believer have in does Services, predecessor, of Mediation and his with common an unbeliever? Obermeyer, E. Peter confirm that units of 6:14-15. Corinthians managerial employees have never been cer purposes religion-related bargaining tified collective standards for mana- The gerial employees pronounced private employer the most a in are with Minnesota. The thought person a from I a Catholic farm er live the more certain I am that enthusiasm 9. Owens * * * basis, was, family promising on this a little-recognized most secret is of success. prospect. matched, nearly equally two men are [I]f who man is enthusiastic will find scales Dictio- 10. "Enthusiasm” is defined Webster’s tipped in And a his favor. man second-rate "inspiration by god nary as its archaic form ability outstrip with will enthusiasm often one or, power” superhuman or usage, in modern other ability first-rate without enthusiasm." The feeling "strong behalf excitement on (Dale ' Carnegie Carnegie Dale Course 66-67 Pub- subject.” Many years ago of a Freder- cause lishers, 1955) original). (emphasis Inc. Williamson, president ick of New York then Railroad, Carnegie: long- Central told Dale "The statutes, inquiry, and com these without such later dis- commonsense statutes, no is that busi charged nonperformance monsense without of the duties re wish or should be person would ness loyal,ty performance owed the em- critical mana at the quired to be associated ployer place at either of business. rejects who gerial level objectives philosophy operational basic Propriety Religious Discipleship enterprise. of the business in a Secular Society just can point stated be illustrated disposition The examiner's of the basic hypothetical example of by the two not-so- as sweeping issue this case was as it was corpora- Minnesota hypothetical business superficial: Owens’ beliefs are publications sell books tions that and other but, put practice sincere when in a into have radically but that different business business, service simply commercial irrele- Corporation philosophies. operates A said, say, To vant.11 examiner selling predominantly religious pub- stores essence of the employer’s business lications, openly “[t]he displayed sections bear- ** * ‘discipleship for not a Christ’ descriptive signs such as “Bible Com- operation of mentaries,” Children,” empori- rather the an exercise “Bible Stories for “Theology”; corporation operates impermissibly B the ex- um” substitute selling only maga- judgment stores secular books and aminer’s business for Owens’ zines, including large examiner, number of so-called judgment. The at the business magazines. pose time, “adult” I what books a dichotomy decrees between same self-answering negative to me answers practices, beliefs and divorces the Owens’ B questions: corporation to these Should secular, sacred from the does not distin- required employ an evan- as a clerk Sunday guish praying on one’s knees on who find that gelical Christian would work- mar- preying persons from on other corpo- ing environment offensive? Should Monday, sig- ketplace perceives no required employ ration A be an atheist nificant difference between the commit- working find its who would environment ment of conviction the detachment of very probably least uncomfortable and who ceremony possibly more casual Sabbath any reluctant to would be read such books community convention. purpose discussing and answer- for the view reflect The examiner’s seems to ing inquiries from interested customers? Berman, Ames Harold J. Barr what James *15 corporation B should It is unthinkable Law, University, Professor of Harvard employ required general to a or be branch changes fundamental that have calls “[t]he position would in a actu- manager who be legal during place in our institutions taken discourage the of materials he ally to sale part of a past generations two the [as] thought just corpo- pornographic, or she legal transformation of entire Western required employ A not be ration should tradition, particularly by marked its discon- position managerial one who would in a the religious nection from foundations her convey his or disinterest or disdain it was built.” He concludes: upon which so, being This employees customers. its legal of a matter historical fact absolutely no [A]s makes sense to forbid it heirs systems of all the nations that are religion-related asking question of legal have to the Western tradition been incompatibilities, these would disclose basic postulates: in certain more rooted beliefs the even absurd answer were unless first, is, legal themselves systems hired that the should be be may “bigotry,” attorney general’s "ex- the same declaration that tian conviction 11. The Jews, Muslims, Hindus, and bigotry" and intolerance” are said of Orthodox treme "extreme irrational, religion. only the true others who believe theirs is essence of this case is not worse, defaming "Bigotry” close Jesus for cynical. it comes is defined Webster’s Still saying, life; but truth, way, I I am the Dictionary unreasoning "I am the am the as “obstinate attach- * * * goes except me.” own intolerance no one Father ment to one's belief with opposed to Chris- John 14:6. beliefs them.” If Owens’ of validity of those presupposed have next frontier religion is that huge postu- are Today beliefs. those beliefs class of young high-rise, adults —the integrity the structural of high-tech lates —such as people devote tremen- —who roots, law, continuity, its its its energies dous to their careers and take qualities rap- are transcendent [which] the pressure through off a kind of — hedon- only disappearing not from the idly ism. religious stirrings There are among philosophers, of minds from the them, yet few of them are attracted to lawmakers, lawyers, judges, minds group established churches. This teachers, law and other members of the millions of other Americans likely are profession, legal but from conscious- pursue religion entirely privately, which citizens, ness of the majority vast can expression be a fine personal free- whole; people that, as a and more than problem dom when it comes to they are disappearing from the it- law reaching people reforming society. becoming frag- self. The law more Report & (Sept. 24, U.S. News World mented, subjective, geared more tomore 1984). expediency morality, and less to con- Gomes, Ph.D.,14 Peter writing J. cerned more with conse- immediate Tribune, Minneapolis Star and Oct. quences consistency and less with or con- 19A, (Commentary) at wrote: tinuity.12 In what we like describe our Contemporary theologians of national pluralistic secular republic, prob- our scholarly cogently stature more address lem is those appear who now unwill- I, premise advanced in Part prelim- ing enough to leave well alone in the inary reaching the fundamental constitu- religion. “problem” business of issue in tional all these cases. course, with religion, religious, is the Marty, Ph.D.,13 Martin E. wrote in U.S. those take it seriously, who those who Report: News & World unwilling among to be Swift’s power We tend to underestimate “Anythingarians.” They what know Ed- lives, religion people’s because wrote, mund Burke meant when he years many religion in America had be- “Nothing is so fatal to as indif- * * * private come affair. I do not ference, is, least, half infideli- turning churches, believe into schools ty.” these, general religion To such as but our children would be well served is no religion at all. teaching courses about the role reli- Hitchcock, Ph.D.,15 James in an October gion in human life. Schools should teach College, reported 1984 address at Hillsdale reality, reality; and media should cover February in its Imprimis, 1985 issue of yet largely reality out the we’ve screened said: religion in society. youngster A can years years watch children’s TV recent there has a com- been mailperson gro- learn about the together and the of Catholics and Evan- *16 rabbi, gelicals cer never monk growing see or minis- motivated aby recogni- * * * group regard ter. The I tion Christianity would of the threats to itself Morals, Religious oj University, Foundations An Law the West: fessor of Christian Harvard 3, 3, Perspective, Relig. Historical 1 J.L. 41-42 & and Minister of Harvard’s Memorial Church. (Summer 1983). 31, 1979, Time, among Dec. listed him its greatest preachers selection of the seven in the Marty clergy- 13. Dr. is an ordained Lutheran United States. History, professor man and a Church Modern University Chicago. publisher He is of Con- History, 15.Dr. Hitchcock is Professor of St. culture, text, commentary religion on University, Louis a Jesuit school. He chairs the Century magazine. editor associate of Christian League Religious Rights. Catholic and Civil Fellowship past president He is of the of Catho- clergyman Gomes is an in the 14. Dr. ordained lic and former editor Scholars Baptist Communio. American Church. He is Plummer Pro- posed by both the Judaism, secular by culture and being church, more than a is Christianity. liberal broader in its interests than theology and is,
Liberal Christianity fact, can It be defined as ethic. no less than a full assumption religion is under an way of life. Wherefore it seeks to mold obligation adapt completely itself beliefs, morals, worship changing Ultimately, cultures. it does Jew, every act, of the but his eating, not believe in transcendent divine revela- drinking, and play. work Ritual is the tion religion but conceives as born of the designed end, instrument carrying this on-going “religious consciousness” of the religion every Jewish into nook and human Virtually everything race. in reli- cranny being of his until nothing he does gion, including God, finally even is re- by is untouched Judaism. garded creation, a human which hu- Steinberg, (1947). M. Basic Judaism 136 can, beings man therefore and even above-quoted professionals views of must, change changing in order to meet occupying prestigious positions in contrast, academia By human needs. orthodox pulpits in the United States are con- Christians believe that the source of their by parishioners self-revelation Him- firmed pews God’s of Min- people. self to His nesota churches. The Institute for Ecu- * * Research, menical and point* It is at this that the Cultural located widest gulf contemporary Christianity. premises exists in of St. John’s University, Col- gulf It is not a which runs between de- Minnesota, legeville, recently undertook a nominations, practically but cuts across $200,000 5-year, study “to learn how Chris- denominations, running through all tian faith affects the lives of church mem- many. middle of Minnesota, gain bers in in order to informa- concerning tion the internal condition of Neuhaus,16 Richard John interviewed in society.” the churches and their relation to Register (reprinted National Catholic study The nature of the and its extensive Presbyterian Layman (Nov./Dec. 1984)), findings published in gave a 1983 book this answer to the question, “How can Christians instill entitled Faith An Bibli & Ferment: Interdisci- pluralistic society?”: cal values into a plinary Study Christian Beliefs (hereinafter Ferment), Practices Faith What & society we need more else, Bilheimer, anything exemplary Presby- than edited commu- Robert S. virtue, nities private of Christian both terian and executive minister director public. Secondly, Christians should study ques- the Institute. The consisted of articulating be uninhibited in their beliefs 2,000 tionnaires sent to some church mem- task, public arena. The third in various denomination- bers and ministers terribly important, which is is to find representa- demographically al churches in points agreement with those who are counties, person- tive followed intensive biblically not motivated the same with, among others, several al interviews based values that motivate us. responded ques- of those who had study interdiscipli- tionnaires. The was an Judaism, Orthodox no less than Chris- collaboration, nary design with the tianity, dichotomy like that has no sterile inquiry developed by professional group dispositive in imposed by the examiner as sociologists, psy- anthropologists, Steinberg,17 in his excel- this case. Milton non-Jews, Judaism, chologists University from the of Min- lent Basic book for Chittister, O.S.B., writes: nesota.18 Joan D. Sister clergyman, Syna- at the Park Avenue 16. Mr. Neuhaus is a Lutheran com- ica. He was Rabbi *17 mentator, rights gogue and civil activist. in New York until his death in 1950. Degree Steinberg 17. Rabbi received his Master’s sample of active church 18.To obtain a random Philosophy University and an from Columbia members, two-stage project employed a sam- the honorary degree of Doctor of Hebrew Letters design pling determine which members to Theological Seminary from the Jewish of Amer- Ph.D., project the coordinator profes- and a (79%) than three-fourths them see religious organizations, being sional consultant their work in harmony as presentation (13%) a their Christian faith. prepared say unified Some they living that the work do for a has project’s major findings, which appears in nothing little or to do with their faith. of Faith & Ferment. The part the first (7%) Pew that they believe what do to part Faith & Ferment next presents a earn their livelihood conflicts with their theological historical and analysis of the regardless answers, faith. But of their by data Dr. Marty, Martin E. co-producer a most of them see faith as an acceptable project, of the followed a part third intelligent guide marketplace. up made of supplemental essays by lay and It daily directs their conduct in their clerical members of the Institute. Veteran (81%) Many try work. example to be an religion reporter Thorkelson, Willmar L. a at “ Christ while work. And in socie- a lay Institute, said, member of the ‘Monu- ty urges people keep that proper a journalists mental’ is the word would distance their between convic- Faith & Ferment at use to describe [it].” public activities, tions and their faith re- 273. It is a study repli- that has not been quires surprising (39%) number to tell in any cated of the other states. * * * job others on the about Christ. The important finding, most reported all thing is but certain: whatever [0]ne in Faith & Ferment: going marketplace is on in American In respondents, the minds of these work perceived by Christians in Minnesota clearly and faith purview interrelated. More to be within the of faith.19 questionnaires. stage you, should receive question, yourself The first "Did happen geographical regions synagogue used the same seven ployed em- attend church or seven the last statistics; reporting in the of state vital days?" using statistically sample more valid — adjacent stage, for the second two counties with- population regions of the adult within four region in each were selected at random to serve illuminating but United States without more sampling study. for the domains Churches single than the fact of most attendance. The within these ly then counties were chosen random- 20, 1984, poll, recent released December showed phone way from such a lists in as to ensure South, 44; percentages these Midwest, 42; of attendance: representation region proportional from each 38; East West 33. The Faith & all, population. its In churches were select- project Ferment concentrated on the attitudes pastor ed and the at was asked each to select 10 churchgoers, those who were identified as congregation. members of his or her When the concerning added more information the extent initial to elicit solicitation failed a sufficient report of their attendance: of them "[h]alf * * * replies, number of an additional solicitation was they go at least church] once a week [to mailed 210 alternate churches that had been (49%) they half said that reli- [a]lmost watch telephone chosen from the directories in antici- gious programs on TV at least twice a month. pation contingency. of such a These alternate people These are not who describe the value of churches were from a selected different set of going any." church without Id. at 79. previously 14 counties chosen in manner at Faith & Ferment 133-35. There were other ques- described. Id. at 334-35. addition to specific findings that are relevant to the issues tionnaires, personal interviews were con- points opinion, at discussed various in this in- portion ducted. A interviewees were V, cluding among Parts IV these: them questionnaires drawn from returned those who participated in [T]he and others were from church members who drawn those who ex- study family pressed worship interest. Id. at 12-13. claim at home regular frequent part is a even their survey obviously therefore was not based (67%) pray lives. Over two-thirds at meals upon sampling, a more exact statistical as in (48%) always.” say they Poll, "most Almost half Gallup respondents and the answers of worship group every single day as a home may questions be skewed nature of book, by reading Nonetheless, Scripture spiritual or some in-depth asked in the designers interviews. family rosary, night prayer. with the or in project concluded that "[t]he * * * Twenty-five reported percent they presented provide never data a reliable base or, do, family pray as a if it a upon which the stated make aim of Faith achieve * * * practice only Catholics, holidays. produce hypotheses most weight Ferment: For ‘to [&] members, dimensions, concerning problems Evangelical Lu- Covenant therans, (51%- Baptists present sample promise of the situation.”’ Id. at 337. 68%), annually surveys worship reportedly daily Gallup family Poll church at- five adults in selected exercise. tendance weeks—ask- *18 (subdivision l(2)(a));
II. and discharging an employee discriminating against or an em- Statutory and Constitutional ployee respect upgrading posi- of Rights Focus the Human Act of sex, religion, tion because of or marital to a (1984) subject Minn.Stat. 363.03 § — (subdivision l(2)(c)). status Minn.Stat. exception occupa- for prefatory bona fide 363.03, 3, additionally prohibits subd. de- § qualifications statutory tional —contains nying equal enjoyment full and of the facil- declaring following employ- subdivision place public ities of a of accommodation an practices employer ment to be unlaw- sex, because of or and a violation prohibited discriminatory ful and re- acts: of this subdivision is declared to abe mis- quiring applicant an employment to fur- (1984). demeanor. Minn.Stat. 363.101 § “pertains” nish information that to reli- provisions, The text of these in relevant sex, (subdivision gion, or marital status part, in margin.20 is set forth l(4)(a)); refusing to applicant hire an The Minnesota Constitution deals in di- employment maintaining system or validity rect terms with the of the Human employment “unreasonably” which ex- Act, Rights person applied both its text and as seeking employment cludes be- sex, religion, cause of Declaring or marital status this case. its Preamble that Id. at 66-77. Jerome P. lems. the Institute: prayer and the remembrance of God. Abbot of St. John’s the data is the church Id. at 26. matters that extend God is active in the leisure, nesota, that God is will, vation of the world. veyed verbally what God said and that the Bible in Forty-one percent spiritual development. sonal focus of of God and that the Bible is essential are marked and Christian dents their Bible is lics, all Christians. munity find that a spirituality. Even 59% of the Roman Catho- Bible is of God and that this is a Minnesota want and In Consequently, perhaps, their sense of Almost having original for whom Bible * * * general, echoed similar observations building.” spiritual accountability (92%) love and believe that in the Bible ****** [******] (77%) spiritual important every respondent message is determinative for the sal- prayer some authoritative sense the Word large portion present text contained no errors.” "What is One fact is clear: credited the high the matter of least some then, felt lives. Almost all the It was not managed by anxiety, Id. at 296-99. incidence of the formation, in time and that their lives beyond the walls of the strongly Abbey, Collegeville, of the very for the these Christians believe expect Scripture Study * * * particularly striking Theisen, O.S.B., S.T.D., high. of the Christian com- importance decisions and reading midst of work necessary surprising, (95%) life, to their respondents has not been the to be involved in a divine love and development were convinced “people report the Christians link the mind and that the said that the by others of of the Bible reading practice belief for for their personal then, respon- * prob- Min- per- sur- * * The Minnesota Human 20. following (Emphasis supplied.) (1984), joyment gion, national status, shall be under place Minn.Stat. race, color, creed, religion, disability, national in section incites, compels, mits an Minn.Stat. privileges of leges, advantages, and accommodations of a origin or sex. with terms, tion that creed, pational qualification, ment following: To person It is an unfair Except (a) (c) (4) (b) (a) (2) employed by addition respect forbids deny any person to discriminate practice: For an require to refuse to hire or to maintain a For an [******] [******] religion, * * * upgrading, clauses of Minn.Stat. § unfair guilty discharge seeking when based public accommodation because of pertains § chapter, to his to all other remedies employment. employer, 363.101 363.03, disability, employer origin, goods, discriminatory * * * national discriminatory practice: or coerces following: a misdemeanor. subdivision employment; person hire, an employer conditions, every subd. 3 sex, (1984) provides: services, facilities, race, color, creed, employee; upon it is an unfair unreasonably the full and against because of * * * tenure, or marital status origin, to furnish informa- age, a bona fide occu- another to do (1984), prohibits * * * 3, or before a act as set forth 363.03, compensation, or an facilities, sex, Act, race, color, aids, abets, who com- equal employee provided excludes employ- marital subd. 1 system person * * * privi- reli- en- so, *19 conclusions, examiner, findings, it ordained gratitude by was and established in his religious liberty orders, God our civil and interpreted the statute not a and to blessings secure its for posterity, it remarkably ex- fashion but “liberal” 1, guarantees 16, every article section way. travagant person’s freedom from “control of or inter- hand, the three-factor con- On the other rights ference By with the of conscience.” analytical op- stitutional framework has the 1, 3, guarantees article right section it the posite mandate, imposes for it restrictions persons freely of all speak their senti- against upon intrusion fundamental subjects. ments all The full text of overriding civil liberties. The examiner ac- these two sections of the Minnesota Bill of factor, knowledged, as to the first that the margin.21 is set out in the religious sincere beliefs of Owens were Act, by burdened respect but with The Three-part Factors of factors, the second and third he did no Analysis Constitutional more than make the uncritical declaration The acknowledges state that a three-step justified the burden compel- analysis should undertaken be when a stat- ling interest, state without less restrictive challenged ute is infringing upon these alternatives of interpretation or enforce- interests, (1) fundamental namely: whether ment. imposes the statute upon a burden the free statutory The and constitutional facts (2) rights; so, exercise of those if whether respects are not all neatly separated, and imposition justified of that burden is they tend to greater coalesce. The compelling overriding government magnitude of the interest; liberty individual’s (3) so, inter- even whether the chal- est, the more compelling lenged statutory must proscriptions be are the least state’s interest restrictive sufficient means to achieve the override the state’s ob- jectives. Similarly, individual’s. greater the in- interest, dividual’s greater must be the The function of the examiner was a schit- state’s search for less restrictive alterna- one, zoid which accounts for the unbal- interpretation tives of and enforcement. hand, anced result in this case. On the one Among alternatives, such constitutionally- Act, section 363.11 of the Human Rights provisions offensive of a may statute effec- interpretation its application, directs tively read be out of the statute to save the provisions of the Act “shall be or, conversely, statute safeguarding provi- liberally construed accomplishment may sions be read into the statute to sal- purposes thereof,” 363.12, and section vage it. As we declared in State on subd. declares it public policy to be the Behalf Bronson, Forslund v. 305 N.W.2d persons of this state “to secure for in this (Minn.1981): state freedom from discrimination.” Res- ponsive upon to that mandate the adminis- It is well established if a statute is agency power trative without ambiguous, to de- construction which —and termine issues of constitutional law—the avoids constitutional conflict preferred Const, 1, 3, provides: 21. Minn. art. any religious § or to maintain or ecclesiastical consent; liberty press ministry, against any shall forever remain nor shall inviolate, persons may freely speak, and all publish control of or rights interference with the write their sentiments on all sub- permitted, any preference conscience be or be jects, being responsible for the abuse of such given by any law to establishment or right. worship; mode of liberty of con- Const, 16, provides: Minn. art. hereby science secured shall not be so con- rights The enumeration of in this constitu- strued as to excuse acts of licentiousness or deny impair tion shall not by or others retained justify practices peace inconsistent with the or people. right and inherent state, safety any money nor shall every worship according man to God treasury drawn from the for the benefit of dictates of his own conscience shall never be any religious theologi- societies or infringed; attend, any compelled nor shall man be cal seminaries. support any place worship, erect or (d)An exception is may made section although such construction be less 1(2), for “religious subd. reasonably suscep- If the act natural. association, corporation, fraternal or soci- constructions, one tible of two different ety qualifications respect based it would render constitutional *20 religion, on when shall be a bona unconstitutional, we must and the other occupational qualification fide for em- making it constitutional. adopt the one ployment.” Additionally, interpretation in the of stat- utes, (Emphasis required supplied.) the courts to discover intent, to legislative con- and effectuate opportunity missed examiner the objects legislature which the seeks sider apply dichotomy sacred-secular the accomplish by mis- the statute exception religious corpo- for and fraternal remedied, sought to be and to chief avoid rations, of which defined in the neither is absurd or the result which would be Consulting Dictionary, Act. he Webster’s language of the do violence to the would narrowly “religious corporations, defined statute. associations or societies” as those ecclesiastical, primary purpose “whose is (Citations omitted.) relating is as ‘of to a which defined or issue, A pervasive significant both a church, as a estab- especially formal and sense, is statutory and constitutional both relating ‘of the lished institution’ or or and impor- of this illustrative coalescence or formal and established institutions employment-related tant all the com- ”22 religion.’ government any of Based plaints statutory discrimination: Are the of definition, this the Ow- examiner dismissed prohibitions uncompromisingly absolute exception, stating that the ens’ claim for an exceptions, particularly stated are the operates in a fact that Owens the club prefatory exception for “a general bona religious is manner on his convictions based occupational qualification,” just fide as un- primary purpose incidental to the of There are other compromisingly narrow? business. general specific exceptions give reject- stated reason for examiner’s negative really answers these rhetorical corpora- ing religious claim for a Owens’ questions: prob- exception tion encounters substantial (a) incorporated A rule of is reason inconsistency applied to lems of when 363.03, l(2)(a), pro- which section subd. corpora- statutory exception for fraternal system of which hibits associations, societies, of tions, some or “unreasonably” excludes a seek- others are church related and which employment. beneficiary asso- not. Fraternal which are (b) exception An section is made ch. organized under Minn.Stat. ciations are 363.03, require 3 and which subds. such (1984). defines Section 64A.02 64A physical accommodations disabled as: associations if, or type because of size employees, order, society, or volun- Any corporation, operation employer’s business stock, or- tary capital without association compliance, employer cost of solely for the ganized carried on hardship. would suffer its and their of members mutual benefit beneficiaries, having a (c) exemption provisions profit, not for An from the government, age representative made section form regard to with having lodge system ritualistic 363.02, persons sum- subd. system that or a branch form of work employment program. youth mer ciation, does, society in substantial governs orga- each Statutes ch. 315 Minnesota —but emporium.” This corporations. part, “exercise Both fit his label of nization are, event, indicates, any expansion and the YWCA sections 315.44 YMCA (1984), incorporated under preceding paragraph and 315.49 chapter. exception noted in not, however, They do meet exam- text. religious corporation, of a asso- iner's definition any commitment, Owens, membership give one reli- confines its such as substan- denomination, institutions; gious pro- support indeed, shall tial such supports Chapel accord- founded and Hill payment vide for benefits Owens Minnesota, Academy in chapter. Deephaven, ance with this strongly religion-oriented elementary-sec- provides that a ritual- But section 64A.03 ondary school. ceremony istic form work or not re- legislature has, Our legislation, in other membership quired where is confined to demonstrated sensitivity to the conflict be- any one members of denom- tween freedom of religion opera- and the exceptions ination. The stated section tion of secular potential statutes where the however, are not confined subd. predictable, for conflict readily as in to the limitations of section A 64A.02. of Sunday closing the case laws. Unlike *21 common function of fraternal asso- benefit states, such statutes in other of which providing life, accident, ciations is the of (see Pennsylvania was one v. Braunfeld sickness, disability for their insurance Brown, 366 81 U.S. S.Ct. (section 64A.48), they may members (1961)), L.Ed.2d the Minnesota stat- transform into life in- themselves mutual (1967), 325.913(5) ute, permit- Minn.Stat. § (section 64A.15). companies surance as well place Sunday opening of busi- ted for'“a They highly regulated by are insurance the regularly Saturday on ness closed respect policy provi- commissioner all actually was closed hours on and which sions, funds, and financial Sunday reserve other Saturday the on which the before (sections 64A.19-.43). matters Section of restricted items occurs.” This such sale exempts 64A.44 these from notwithstanding associations exception, state’s bur- general taxation under the tax revenue enforcement, designed to avoid den of laws, faith, to real fra- except as estate. Some upon like a burden those whose those religion-re- faith, ternal benefit associations are requires of Orthodox Jewish lated, such the Catholic Aid Association as closing places of their business and total of Brotherhood; not, are Lutheran others from of work all manner from abstention Degree such Norway, as the of of nightfall Sons nightfall Friday each until each Association, and Honor Protective Saturday. Taking of this in note State v. Society.23 447, 459, Woodmen World Insurance Stores, Inc., of the Minn. Target (1968) (although 916-17 invali- N.W.2d point important concerning The the fra- grounds vague- the statute on of dating they op- ternal benefit associations is that ness, process a denial of under the as due marketplace competi- erate the secular States Minnesota Constitu- United companies, tion with other insurance differ- tions), we said: ing only popula- as to character of the legisla- statute in reflects The this case they tion from which solicit business. It is attempt to indirect reli- tive alleviate they exempt true that from taxation as gious upon burden Sabbatarians institutions, equally charitable but it is true granting those a restriction- merchants that not all charitable institutions are ex- Sunday Saturday, if free close empt provisions from the of the Human requiring while at the same time no reli- Rights Act, nonprofit such as charitable exercise of gious declaration for the hospitals. true It is that some of the fra- right. ternal provide benefit associations financial legislature, examiner, unlike the Our obvi- support churches, church-affiliated ously religious did not think freedom schools, and other institutions. It merely was irrelevant its exercise because true, course, is equally many suc- only related to secular commercial activi- cessful strong religious businessmen with legislature saying, Neither was the ties. paragraph, 23. The information stated in this No information is available to how ter. circumspect 64A, other than references to ch. competitive Minn.Stat. these fraternal benefit Story taken from a brochure limiting entitled The sales of insurance are in associations America, by religious Fraternal Societies in persons genuinely qualified obtained Benefit from the Minnesota Insurance membership Information Cen- criteria. or other
«67 and, extent, speech to some that such an majority opinion, does the statutory protection “frustrate” exception equal pro- would the denial of and due objectives. under the Minnesota Constitution. cess exceptions argue The for which I would be to the statute violence
It do no would dispositive principal a less raised upon Owens restric- issues impose either to “religious corporation” or against complaints tive definition Owens. business-disciple- to his extend simply to comparable exception granted ship the III. corporations, to fraternal asso-
the statute ciations, societies.24 To do so would Analysis Hearing Examiner’s Find- not, contrary opinion, majority Fact, Law, ings Conclusions statute, and it is consist- “emasculate” Orders Enforcement legislature’s with the own action ent findings of fact and conclusions of exceptions application several providing law, together with cease and desist orders so, the statute. Not to do on the other thereon,25 hand, complaints on the nine de- grave of freedom of based raises issues churches, against any (i)taking any religion-based exception adverse action em- 24. course, objects ployee practices synagogue who makes sense. A Jewish management any employ or of other temple required or exercise of should not be objection(s) inherently employees because of their there- would Christian or other who *22 indifferent, to; "antagonistic," and to its be even if not (2) Discriminating against any person on practices. The Catholic Bulletin of beliefs and status, including: Paul-Minneapolis the basis of marital of St. obvi- the Archdiocese ously (a) any person employ hire because of mar- refusal to would not choose to Lutheran status; Trinity ital (b) Church should not its editor. Covenant any prospective employee requiring to required employ incom- a Unitarian. The be patible religious to pertaining to marital sta- information would be ascer- furnish identification tus; religious inquiry. Unlike these tained corporations, associations, direct (c) against any employ- taking adverse action fraternal benefit and unlike some status; notably marital em- ee because of does not limit Owens (d) supervisory management or any religious denial of a ployment persons one affil- to of per- any person upon position based that to iation. status; and son’s marital hearing a deferred to later 25. The examiner (3) Discriminating against any person on money damages statutory to of determination sex, including: basis of the paid charging parties. did issue a be to the He (a) any young, unmarried refusal to hire terms, following in the cease and desist order away without from home women who live prohibiting: of that lack of parents’ consent because their consent; (a) any person because of that refusal to hire religious practices; person’s beliefs or (b) any young, woman inquiry unmarried of (b) any person and, hire because that refusal to away from home whether she lives as to religious objection does, has stated an parents’ con- whether she has her if she sent; practices Respondents’ or of the beliefs management employees; young, or other (c) any unmarried hire refusal to (c) religious prac- inquiry into the beliefs or and does not who desires to work woman any prospective employee; parents, of tices of because the consent of her have (d) consent; religious prac- inquiry beliefs into the or lack of employee; young, any (d) any unmarried woman inquiry tices of of (e) against any parents’ taking any consent to adverse action em- has her whether she as to work; religious employee’s ployee of that because any (e) woman who practices; hire married refusal to beliefs or have her hus- (f) management and does not supervisory or to work of a desires denial consent; consent, per- of lack of upon because position any person band’s to based any to (f) woman as inquiry of married practices; religious beliefs or son’s to consent has her husband’s soliciting suggesting par- she (g) requiring, whether work; religious and ticipation other in Bible studies or and (4) any person of the full any to part Denial practices of em- on the exercises ployee; services, and enjoyment facilities equal of its accommodation, wit: public privileges (h) against any employ- taking adverse action member, any (a) of or ridicule harassment participate studies or in Bible ee who does and facilities guest use of its services practices or other any be- exercises or other religion. of non-participation; because of that cause adversely opinion. termined to Owens his asso- sidered in this The accuracy of ciates, Larson, may grouped genera! Crevier the more recital of facts in categories. into discussion five majority opinion tested should be com- categories of present fourth and fifth these parison specific findings. footnoted directly prior issues not considered moreover, findings, These will make even parts opinion, of this and all of them con- more sweep self-evident the unwarranted speech, sider freedom of issues addi- of the cease desist orders. tion to the main theme of free exercise of Finding: requiring 1. furnishing religion. opinion The text of the can related information or marital highlight findings. the examiner’s The fac- status. tual findings the examiner are set forth finding Joseph and conclusion as to separate verbatim in footnotes as to each this; solely charging parties, omitting Williams26 limited and a findings reading brevity prior finding as to in the dates em- footnote re- ployment experience qualify findings found to veals its lack of substance. The involved, positions them for the which are conclusions as to Robin Ann Carna- significance Larsen,28 Beverly however, without to the issues con- han27 and do Williams, body Joseph champion sequent employment, during builder her series club, approached who worked out at the LaSalle membership conferences associate di- possibility employment. Crevier about goals rectors at club to discuss their Although opening attitudes, there was no current for an organization general and their Crevier director, membership associate Crevier did dis- opinion expressed asked for her of Owens. She job cuss with Williams what was involved disapproval religious-oriented employ- her job description based that the on bibli- ment interviews and of the sale of Bibles in the principles. explained He cal to Williams what lobby. compared club’s She also the unavaila- Sports beliefs of the and Health bility of health-oriented literature at the club were, management specifically including Club’s great with the volume of Christian material had to Williams be a reborn Christian in lobby lounges. available for members in the go order to be hired and also have to would Referring requirement manage- all *23 weekly studies. Bible Williams then decided employees required ment to attend Bible application employment, not an to fill out for part regular managers’ meetings, studies as although opportunity Crevier offered him the to possible she Crevier if be asked it would a for opening do so for consideration an when oc- manager manager only or assistant to attend curred in the future. portion meetings. business such Crevier told appellants The examiner found that attitude, had vio- her that that if was her he would have 363.03, l(4)(a), by § lated Minn.Stat. subd. re- to dismiss her. Carnahan told that a was it was quiring per- Williams to furnish information requirement employees management po- that religion taining being employed. to before go sitions had Bible studies. law, concluded, as a examiner matter of employed 27. Robin Ann Carnahan was as an appellants had violated Minn.Stat. membership associate at the director Norman- l(2)(b), by discharging subd. Carnahan because being appellants dale club. Prior to hired l(2)(c) interviews, religion and also had subd. violated she had two one with by discriminating against Carnahan because of Vice Larson and President Vice President Crevi- er, religion respect upgrading with of her and the other with Arthur Owens. The first employment. questions regarding expe- interview consisted background physical rience and fitness and 28.Beverly employed was at the Larsen Norman- selling. instruction and as to her toward attitude membership dale club as an associate director. The interview with Owens related to her reli- original Larsen's interview with Owens focused gion, family, marriage, namely, her and her personal dealing religion, on Christian; matters with her whether she was a Bible; if she read the marriage, parents, her and her who church; were di- speak if went she she if would vorced. She too was asked whether she freely and her religion people; her about to other married; husband went to church and whether was whether she she whether and her prayed together. She asked to prayed together was also answer husband went to church many together; questions regarding breakup of her parents, whether her who were divorced, parents' marriage. During perceived She hired. were still Owens was then married. interview, antagonistic possible subsequent Vice when President attitude her demean- freely speak during or and interview, Larson whether interested reluctance to asked she was position, particularly management ques- she that she was but when she answered said parents prob- tions about she her and their divorce. Sub- volunteered she did not think society, resounding is a religion-related interroga- today’s involve affir- extensive concerning reading, prayer prac- tion persons Bible mation that with such attributes tice, attendance, together with and church recognized. are indeed For the rest of questions par- about the divorces of their us, responses provide a such heartwarm- joined findings ents. These are then ing experience which our reaffirms inner employ- findings other of discrimination convictions. opportunity. ment suggesting nonreligious per- Without asking Forbidding employer from an inevitably qualities honesty sons lack or morality questions related to duty, there is a commitment to substantial impor- employer right denies to that genuine those of degree of assurance that suitability tant information relevant quali- have religious commitment will those survey, In a 100 vice employment. recent doubted, hardly further- ties. It can of “For- presidents personnel directors more, “antagonistic are that those who 1,000” companies, reported tune is, gospel,” antagonistic to Owens’ News, were asked: Freeway Feb. business, conducting his demon- manner of you disturbs employee behavior “What commitment, “an concern strate absence answers: reported Their most?” or dedication” to the interests of this em- far, lying topped By dishonesty and surveyed personnel ployer valued objectionable of the most behav- the list directors. company employee ior. If a believes upon employee inter- These limitations positive his or her integrity, lacks all of upon impermissible limitations views experi- qualities ranging from skill — speech, unless the state has a freedom of intelligence productivity ence to —be- in- which overrides that compelling interest meaningless. come it is a discrimi- dividual freedom. But parade hit unpopularity Next on the employ- natory employment decision of the goofing and at- irresponsibility, came off itself, er, inquiry that should invoke not the company tending personal business inquiry The fact of the the state’s concern. time. Minnesota, A March 1985 Minnesota Bar qualification: tion were often cited deserving of raises and sence of ism Honesty 1,748 professionalism survey report Employees These are the sfc past December. For those in Minnesota as professionalism commitment, and [*] issue of The Bench & Bar confirms Association, Integrity: who bywords [*] demonstrate an ab- this concern, [*] surveys returned indicated promotions. reported employees professional- fundamental [*] or dedica- who de- by the by in sjc the the these person’s but the examiner may prove an inference from that ing otherwise *24 ple is that of plaint was limited inquiries of Carnahan note 36. relating status, A any violation based on their closer, three cases. The most obvious nor could religion marital status and parents’ Even unexplained adverse yet questionable, Katherine Joseph here, inquirer’s they have been. made no such to the divorces Williams, however, and Larsen Lamannsky, inquiry knowledge to an their own marital knowledge of a were not linkage is that the only. The linkage in the com- informa- decision, concern- linked exam- infra tie did not surface concerning her divorce in tion and moral fiber cry the lack of ethics club, "spiritual prob- meaning that she had enough ably She said “Christian” for Owens. manage- lem.” happy she would be to work that pressure push and her if Owens did not ment appellants had The examiner concluded Christian, referring partic- being l(2)(b) by his kind of into subd. Minn.Stat. violated prayer ularly religion that were to the Bible studies and and also discharging Larsen because managers meetings. discriminating mandatory l(2)(c) by The part violated subd. had her, giving respect day, as a against next Crevier dismissed because of Larsen employment. "negative about upgrading attitude” of her that she had a reason by employer. books, inquiry library impermissible would it response to establishes, here, inquire person whether a has read such Where the record other employ Bunyan’s classics as John per- Pilgrim’s divorced employer does Progress or John Milton’s Paradise Lost sons, Lamannsky’s finding “status Regained? Paradise Or would a conversa- job” what cost her the as a divorcee tion about Faith & Ferment book be The questionable. cases of most Carna- impermissible in an context? han, Larsen, Lamannsky are the same they prompted gratui- the extent that preoccupation The of the examiner with tous lecture Owens and Crevier on mar- company premises Bible studies on has riage disparate respon- and divorce and the forepart opin- been considered of this preserv- sibilities of husbands and wives ion as an issue of freedom. It again marriages. troubled It was the unre- arises as an issue of freedom of speech sponsiveness Lamannsky pro- from the order of the examiner to this at- hibiting “soliciting suggesting partic- tempted dialogue, not the fact of the di- ipation patent- in Bible This vorce, studies.” is so rejection. precipitated her ly require unconstitutional as to no other point lecture, is that a however anachronis- beyond identifying comments it. tic,29is not itself a violation of the statute. Finding: dismissing Carnahan,30 Lar- vagueness There is remarkable in the sen,31and Robert Severin32 from their em- questions examiner’s assessment of to Car- ployment religion-based grounds. Bible, reading nahan and Larsen about prayer, and church attendance. None of right employer of this to establish identify particular religion, them al- environment, including the work mandato- though they concededly may distinguish ry study managerial employees Bible If, nonreligious. from the voluntary employ- sessions for other however, impermissible ees, it to ask extensively whether has been discussed in Part Bible, and, interrogation reads the which is itself a II. The of Carnahan Scriptural passages upon image equal 29.The which Crevier in the of God and are therefore gratuitous placing sight.” relied for lecture the onus God’s Faith & Ferment at 34. upon apparently for divorce the wife included 1 supra 30. See note 27. 3:1, 3:18, Ephesians Peter Colossians 5:22- enjoined in which St. Peter and St. Paul supra wives to 31. See be "submissive” and “obedient” to their note 28. writers, however, enjoined husbands. The same "respect" husbands to and “love” their wives. 1 employed program- 32. Robert Severin was as a 3:7, 3:19, Ephesians Peter Colossians 5:33. membership mer-associate director at the Mid- (The reciprocity obligations in the familial way Apache frequent clubs. On occasions relationship Owens, is further reflected in Colossians throughout Severin was asked 6:1-4, Ephesians Larson, 3:20-21 and in which children weekly and Crevier to attend the Bible charged duty “obey” parents, awith manager studies conducted of the Mid- parents "anger" are told not to “irritate” or their way club. Severin is a Roman Catholic who children.) over-arching surely But all these is 1 private worship believes that should be or "in 13:1-13, chapter Corinthians the love read at kept workplace. out He church" and wedding January countless ceremonies. join Bible studies. declined to opinion Severin voiced the that the club’s respective If the duties of husbands and wives management were not as motivated or staff immutable, however, disparate are indeed *25 showing degree the same of enthusiasm that equally that would be true of St. Paul's declara- they previous manager. Shortly had under a disgraceful thing tion that is a “[i]t for a woman ended, meeting after the staff Severin was dis- speak meeting,” to in a church 1 Corinthians having missed for a "bad attitude.” Severin 14:33-35, obey and that "slaves [are [their] to] acknowledged on cross-examination that no one things,” human masters in all Colossians 3:22. management directly in ever told him that he Conversely, injunctions if the to women and job would lose his if he did not attend Bible anachronistic, acknowledged slaves are to be job studies or told him that he lost his because may any epistle being the same be read said of at them. of non-attendance require spouses. to "[Ajlmost discrimination between appellants respondents all of the the Faith & The examiner concluded that had [in 363.03, l(2)(b), (94%) by project] accept Ferment the under- violated Minn.Stat. subd. § religion. standing discharging that created Robert Severin because of women and men both right managers to have who will be degree, was rather exten- Owens’ a lesser Larsen they compatible company policy it clear that with the basic But seems sive. “negative however, “discipleship.” Unique, for “bad attitude” or a dismissed to be asserting objections to this reli- attitude” reaching the examiner’s into conversations com- gious environment. Severin during work engagement a social between Ste- plained that the were not as motivat- staff Bruhjell family ven and the Owens and an manage- prior had under been ed Bruhjell and at-home conversation between employees Dismissal of malcontent ment. religion-re- President Larson to find Vice a is not a violation of the statute. lated violation of the statute. Car- Unlike moreover, Larsen, Bruhjell nahan and re- Finding: refusing promote to Carna- 3. and was signed not dismissed. Larsen,34 han,33 Bruhjell35 to and Steven positions religion-based on managerial Finding: refusing 4. the applications grounds. employment Lamannsky,36 Katherine Crosby,37 Linda fully Marilyn Perkins38 be- considered This issue has been respect with to of marital status. opinion cause foreparts persisted refusing Cre- supra Because she to answer note 27. 33. See line, inquiries along this Crevier told La- vier’s mannsky she fit to that he did not feel would be supra note 28. 34. See at the She thanked him and left. work club. given employing specific No reason was not Bruhjell employed an associate Steven was 35. her. membership club. director at the Normandale Normandale, working Shortly he at after started appellants The examiner found that violated game with played an racketball 363.03, he after-hours l(2)(a), refusing subd. § Minn.Stat. daughters. Arthur Owens and two Owens’ Lamannsky because of marital status. to hire game, Bruhjell and the Owens three After religion, during got on which into discussion Marilyn Crosby an asso- 37. was interviewed for to advance Owens became "strident" "tried position membership ciate director's Bruhjell, beliefs his beliefs” with ques- Apache Crosby personal club. was asked Bruhjell openly disagreed. He also had been any prob- only, such as whether she had tions In invited but declined to attend Bible studies. father, her whether she had room- lems with mates, Bruhjell passed after had been over late lived. answered and with whom she She promotion, he was told his then room-- for mate, including telling questions, Crevier all of the Larson, that not Vice President he would recently single she was and that she had that born-again promoted became a until he sharing boyfriend. Cre- begun with her house Bruhjell decided to Christian. late 1976 interview, telling thereupon terminated vier directly speak out Owens in effort to find you Crosby be- be able to hire that "we won’t only true he had not if it was that the reason boyfriend.” you your He also live with cause management promoted was because been have that if moved out she could told her she Owens to him his beliefs. admitted job. Shortly was reason. there- that that appellants that violated The examiner found Bruhjell employment resigned because after 363.03, l(2)(a), refusing subd. § Minn.Stat. organiza- appellants’ had no he felt he future Marilyn Crosby because marital sta- hire tion. tus. appellants violated The examiner held l(2)(c), by subd. discrimi- Minn.Stat. Perkins, along employees, with Linda other 38. against Bruhjell nating because of she hired interviewed to see if would be was upgrading employment. respect to of his management he new when under Owens’ bought Club. the Minnetonka Racket and Swim Lamannsky was interviewed for 36. Katherine employed as a file clerk and had been She position by receptionist Crevier at the LaSalle but, supervisor although did Owens child-care During July Crevier interview club in provide services intend child-care application she was di- from the learned an office then available for had no began probe details He about the vorced. type, who could not Owens continued worker divorced, Lamannsky gotten why and she had something if there the interview see general beyond the statement refused to tell him employed keep done Perkins could be grown apart. had she and her husband way. her she was He asked whether other some man head of told her that the was the Crevier inquired and with about where a Christian had work if she tried to the household and that *26 him she lived She told whom she lived. together. marriage stayed have it would out fiance, whereupon the termi- interview with her passages. point with reinforced his Bible He 872 by physicians heretofore considered re- in
An not umented their the medi- issue employ Crosby to lates the refusal cal to records. they per- cohabited with Perkins because statute, (Emphasis supplied.) This like the to sex whom opposite sons of the statute, grants fornication status marital The examiner not acknowl- married.39 protection in sexual relations to mar- edges memorandum that there was in his persons. ried relationship a clear in inference of this The find examiner’s effort to discrimina- cohabiting between the sexual relations in tion this refusal of demon- couples. Minnesota Statutes 609.34 § again interpreta- strates his unreasonable (1984) relationship such a declares to be and application Rights tion of the Human crime: Act, that the criminal his determination single a man and a have When woman superseded statute a civil is statute other, with each each sexual intercourse plainly wrong. held Target As we fornication, guilty of which is a misde- Minn, Stores, Inc., 473-74, 279 at 156 meanor. 925, principle implied N.W.2d at of “[t]he widespread apparently Given the incidents favored”; statutory repeal rather, is not arrangements in- living today, such Sobelman, stated State v. Minn. quiry surprising. is not by Owens Owens (1937): 271 N.W. to, to, did is not required not wish Before it can be said that a later act is criminal behavior. The ex-
“subsidize” traordinary response of the to to a examiner intended substitute the earli- er, legisla- this that as a defense is matter “there must be unmistakable intent intent, subsequently tive enacted Hu- part the legislature manifested on the “superseded” Rights man Act the criminal to make the new act a substitute for the statute, a judgment a will come as old all the law and to contain on the surprise legislators reg- have to those who subject; similarity provi- for mere unsuccessfully ularly but authored bills sions is not enough of the two statutes repeal fornication statute. The examin- repeal, though effect a even similari- repeal er may as well have asserted the may ty to cause or be such confusion (1984), 144.651 the Bill of Minn.Stat. § inconvenience.” for Patients Residents of impose It is preposterous to sanctions Facilities, Health subdivision Care upon particularly an employer, employ- provides: er, employ persons who refused whose Residents, married, if shall be assured conduct constitutes criminal misbehavior. spouses and, privacy by their if for visits Finding: denying 5. Miriam Cameron40 spouses facility, residents of the
both room, equal enjoyment public full and accom- permitted to share a they shall be medically religion. contraindicated and doc- modations because of unless forthwith, findings several the examiner did dis- nated and Owens said to her: "You not find sinful, God, against persons it is and it sinful to crimination in one or the other realize that * * * three, strange against application living and since it is sinful status but all a out of wedlock God, to me." of the statute. it is sinful appellants violated examiner found joined 40. had LaSalle Miriam Cameron l(2)(a), by refusing subd. Minn.Stat. Cameron, Sports and Health Club because of marital status. hire Linda Perkins Jew, religious emphasis had noticed no finding not relate to sex discrimina- 39. The does during club her the first 18 months of member- tion, mid-1980, and desist the cease order refers began ship, but in she to notice an on the basis both sex and discrimination proliferation increase fundamentalist obviously gender refers to marital status. "Sex” specific charge in- Christian literature. The activity. sexual August not volves a conversation that occurred in following publication plain purpose preclude book of the statute is to Hello, having policy employ I’m God and I’m Here to employer Cameron entitled from Help persons Vice President Crevier single persons divorced married You. Cameron and persons. curiosity He belittled in his met a club office. Cameron’s It is at the least
873 subject a finding does by monetary penalty this is a presented The most issue in matters em- flagrant of speech. not involve denial of freedom discrimination of heretofore con- not been ployment has and yet It is another opinion.
sidered this IY. expansive ambitiously ad- example of an of application Human ministrative The Minnesota Constitution as Act, involving time discrimina- Rights this Decision Exclusive Basis of provision public accommodations—a tion The issues raised constitutional this which, terms, is both civil its and crimi- case focus on the Minnesota Constitution (1984), nal. Minn.Stat. 363.101 su- See § adequate independent as the and basis for note 20. pra decision, to the exclusion of United Cameron, a club member and not an em- exposition A States Constitution. current found, ployee, as the examiner initiated a practice emerging of this constitutional conversation in the office of Crevier about Fleming lawyers Minnesota Terrence and written, a book that had of she contents Nordby (1984), Jack in 7 Hamline L.Rev. 51 contrary religious which Crevier’s Wrapt Rights: Minnesota Bill of vigorous a beliefs. There ensued and “stri- Mist, power the Old clarifies the Miasmal disputation grounds dent” interpret apply of state courts to their disturbed, “overwhelmed,” “to- which Rights own Bill of constitutional and the tally problem,” “The demoralized” her. specific govern criteria that should the de- said, the examiner “is not with what [Crevi- Bill cision whether the state’s of said, with how he said it.” The but er] departure mandates from the minimum examiner it was held that “treatment so standards the federal constitution.41 reasonably variance would with what * Among * * several other law review commen- anticipated absent discrimination taries, Pollock, see State Constitu- also probable explanation discrimination is the Separate tions as Fundamen- Sources of for conduct.” Just she came [Crevier’s] (1983), 707 Rights, Rutgers tal L.Rev. 35 initiative, office on her own Crevier’s Linde, Pluribus, E. 18 Ga.L.Rev. 165 captive Cameron was not but free to end (1984). by simply departing. discussion It might role well be that Crevier’s was not may interpret It is axiomatic that a state winsome, utterly it is absurd to hold to offer other and its state constitution discriminatory that it was a denial of the protection more—but individu- not less— right to the club and to services of order a rights al than does the federal constitution. - initial membership refund Cameron’s Robins, Pruneyard Shopping v. Center moreover, noteworthy, fee. It is that Cam- 2035, 74, 2040, 64 447 U.S. 100 S.Ct. eron a club member 4 or remained as 5 Hass, (1980); Oregon L.Ed.2d 741 v. following episode, months which would 1215, 1219, U.S. 95 S.Ct. the event seem indicate that was not as are, (1975). L.Ed.2d courts State troublesome as she asserted. be, of defense for should the first line the federalist here, individual liberties within hold, vigorous
To
Rights,
Bill of
in-
subject,
system. The Minnesota
how-
robust debate on a
deed,
controversial,
adoption of
four-
may by
ad-
antedated the
statute or
ever
amendment,
prohibited
teenth
federal
ministrative order be
or made
place
public
its services and facilities as
views and
her on fundamentalist Chris-
lectured
voice,
religion,
tian
Crevier talked
a loud
within the
doctrine.
accommodation because
table,
expres-
leaned
and had a stern
meaning
across the
subd.
Minn.Stat.
face;
visibly
sion on
Cameron was
shaken.
Thereafter,
practitioners
her
de-
of criminal law
both Cameron and
husband
41. The authors are
membership
perspective, but the basic
cided to terminate their
and asked
and write from that
refund,
course,
are,
respect
denied.
principles
which was
same
speech
free exercise of
issues of
appellants
free
had de-
examiner found
religion.
equal enjoyment
nied
Cameron the full
*28
unique
measure made
large
Fleming
in
to this state. As
and
Bill
Rights
Nordby suggest:
result is that
states.
applicable to the
protec-
for the
sources
Innovative examination of this factor
has two
the citizen
provides cogent arguments
engaging
for
liberties. This state
her civil
tion of his or
independent interpretation
in
as well as
responsibility
its
to ef-
should not abdicate
significant
decision-making.
direction for
lines
constitutional de-
fectuate both
questions should be considered in
Several
fense.
(cid:127) examining
Min-
this factor: whether
mean, however,
not
that the
This does
history and
are rele-
nesota’s
traditions
in all circumstances construe
state should
controversy;
vant
to the
whether the
expansively
more
than
its own constitution
nature;
controversy
local in
is
whether
constitution, particularly
the federal
where
controversy
the resolution of
rests
comparable provisions
textually
their
are
primarily in a determination of localized
identical, for the decisions of the United
facts;
Supreme
the Minnesota
whether
Supreme
inherently are of
States
Court
position
Court is
a better
than the
persuasive, although
dispositive,
not
force.
adjudication
federal courts to make the
Linde,
As Justice Hans
v. Kenne-
State
of,
superior knowledge
because of its
260,
(1983), urg-
dy,
with,
295 Or.
Conclusion beliefs, contrary to deeply-held religious people spirit I is the of the what believe person toward antipathy of one Mindless race, religion, gender, Minnesota. of different another dissent, health; the decision respect,
I from likely is he/she to be honest and a worker; affirms conscientious can majority get of the the.decision he/she along examiner, employees; with fellow for I would in all is he/she hearing likely time; get to work on be free of put an end to respects reverse frequent perform absences and job his/her litigation. unfortunate cheerfully, efficiently and diligently? The fact is that there YETKA, high is a (dissenting). correlation be- Justice being good tween practicing Christian receiving the Prior to dissent of Justice fulfilling foregoing each of the qualifi- Peterson, special I written a had concur- cations. ring opinion reluctantly accepting the ma- employer If an affluent spend wants to decision, jority expressing strong reser- so, money to do easily, quietly he can reading After vations. Justice Peterson’s investigation have an prospec- made of all scholarly eloquent dissent, however, I applicants tive and learn all he wants to him in join dissenting. know persons. about that A *30 There controversy is some on how much marginal small or employer, on the other significance questions could be attached to hand, may not be able to afford such an employees defendants of female as to Yet, investigation. consequences their marital status and whether have are, hiring employee an undoubtedly, more their husbands’ or fathers’ consents to seek dire and harmful employer to the small I employment. wish to make it clear that I large. Therefore, than the the act that proper any do not believe it under circum- purpose claims as its prevention employer stances for an to ask for fact, such certain may, discriminations result quite rights consent. Women’s another against are too far ad- discrimination cer- employers. tain vanced to turn the clock back to the 19th century. my opinion, they are entitled Here is an act which has as its stated equal protection seeking to employment purpose the elimination of discrimination under both the federal and state constitu- employment. rightly It has been invoked tions whether an ERA protect color, amendment to gender, minorities—in religion. Yet, adopted or not. it questioning against Such a line of would discriminate majority religion in the United States totally improper under the statute and since the founding, namely, nation’s Chris- the constitutions. tianity. This deny decision would a Chris- However, employers while have certain tian right practice to his belief in the responsibilities statute, under this it does marketplace. deny employer It would an totally abrogate rights their to obtain right to pro- basic information about a background prospective information on em- spective employee that affects not ployees. that, The majority opinion states well-being employer and his busi- “[wjhile recognize we that in order to make ness, prospective but also that of the em- intelligent informed and employment deci- ployee’s employees. fellow I find the find- sions, employers permitted must be some ings repugnant so stage that it reaches the leeway question employee appli- to an or True, of being ridiculous. majority cant or background, upbring- about his her opinion points opinions out that of the Unit- ing sure, perspective.” I’m not how- ed States federal suggest courts would ever, guidance that that is sufficient you may have a upholding decision one reassurance employers. person’s I am fearful rights constitutional that effec- tively deny opinion broadly will too another his be inter- or her rights. so, may That be but where an act preted. preferences While might individual interpreted can be prevent such a del- differ as to what characteristics should ex- act, balancing icate why shouldn’t it be so good employee, ist for a qualifica- certain read? appear recognized tions to be universally desirable; example, prospec- is the original As one of the authors of fair tive employee good physical practices legislation and mental in the 1950’s when Legislature Minnesota extremely legislation proposed
such employ- firmly believe
unpopular, I discriminate on allowed
er not be should color, I race, gender creed. basis employer that an firmly just
also believe rights constitutional
cannot denied making meaning- essential
information employee. a new We are at
ful selection of in the evolution American stage history where we
constitutional are either nation
going be one indivisible with
equal rights going for all or we are groups nation with
become a citizens virtually separate
within that are nations time has
of themselves. The come to discrimination, special
strike all all down
privileges all of our citizens and treat
equally the law. before
I,therefore, join Peterson in find- Justice that, Constitution, the Minnesota under rights are violat-
defendants’ constitutional
ed Human Act. the Minnesota disposition perhaps of this proper case hearing
should be to remand examin-
er; however, agree with Justice I Peterson punished
that the has defendants far case
beyond actions taken on. whatever part. point
their There comes where
enough enough, ought and the ease to be therefore, I, re-
terminated here. would
verse. Gary
Judith LUNDGREN wife,
Lundgren, husband
Respondents,
v. EUSTERMANN, M.D.,
John Appellant.
petitioner,
No. C8-84-966.
Supreme Court of Minnesota.
July