The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVIA SPENCER; TED YOUNGBERG;
VICKI HULSE, No. 08-35532
Plaintiffs-Appellants,
v. D.C. No.
2:07-cv-01551-RSM
WORLD VISION, INC., OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
July 8, 2009—Seattle, Washington
Filed August 23, 2010
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge O’Scannlain;
Concurrence by Judge Kleinfeld;
Dissent by Judge Berzon
12523
SPENCER v. WORLD VISION 12527
COUNSEL
Judith A. Lonnquist, Law Offices of Judith A. Lonnquist,
P.S., Seattle, Washington, argued the cause for the plaintiffs-
appellants and filed the briefs.
Steven T. O’Ban, Ellis, Li & McKinstry PLLC, Seattle,
Washington, argued the cause for the defendant-appellee and
filed the brief. Daniel J. Ichinaga, Ellis, Li & McKinstry
PLLC, Seattle, Washington, was also on the brief.
Lowell V. Sturgill, Civil Division, U.S. Department of Jus-
tice, Washington, District of Colombia, argued the cause and
filed a brief on behalf of amicus curiae the United States.
Gregory G. Katsas, Assistant Attorney General, U.S. Depart-
ment of Justice, Washington, District of Colombia, and Mar-
leigh D. Dover, Civil Division, U.S. Department of Justice,
Washington, District of Colombia, were also on the brief.
L. Martin Nussbaum, Rothgerber Johnson & Lyons LLP, Col-
orado Springs, Colorado, filed a brief on behalf of amici
curiae Christian Legal Society, Association of Gospel Rescue
Missions, Center for Public Justice, National Association of
Evangelicals, Samaritan’s Purse, and Union of Orthodox Jew-
ish Congregations of America. Gregory S. Baylor, Christian
Legal Society, Springfield, Virginia, was also on the brief.
Kevin H. Theriot, Alliance Defense Fund, Leawood, Kansas,
filed a brief on behalf of amici curiae Alliance Defense Fund
12528 SPENCER v. WORLD VISION
and Youth for Christ. Ben Bull, Alliance Defense Fund, Lea-
wood, Kansas, and Joel Oster, Alliance Defense Fund, Lea-
wood, Kansas, were also on the brief.
Eric Bently, Holme Roberts & Owen LLP, Colorado Springs,
Colorado, filed a brief on behalf of amici curiae Association
of Christian Schools International and Council for Christian
Colleges and Universities. Stuart J. Lark, Holme Roberts &
Owen LLP, Colorado Springs, Colorado, was also on the
brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a faith-based humanitarian organi-
zation is exempt from Title VII’s prohibition against religious
discrimination.
I
Silvia Spencer, Ted Youngberg, and Vicki Hulse were ter-
minated by World Vision, Inc. (“World Vision”) on account
of their religious beliefs. Religious discrimination is, of
course, barred by Title VII of the Civil Rights Act. See 42
U.S.C. § 2000e-2(a). That bar, however, does not apply to “a
religious corporation, association, educational institution, or
society with respect to the employment of individuals of a
particular religion to perform work connected with the carry-
ing on by such [entity] of its activities.” Id. § 2000e-1(a).
World Vision’s eligibility for this exemption is the issue pre-
sented in this appeal.
A
World Vision describes itself as “a Christian humanitarian
organization dedicated to working with children, families and
SPENCER v. WORLD VISION 12529
their communities worldwide to reach their full potential by
tackling the causes of poverty and injustice.” What began in
1950, when Dr. Robert Pierce started sending a monthly
donation to a child in China, has become World Vision Inter-
national (“WVI”): a federation of eighteen independent and
thirty-four semi-autonomous entities operating in countries
around the world. World Vision—the party to this case—is
the U.S. arm of WVI.
Spencer and Hulse had both worked for World Vision for
approximately ten years prior to their dismissal. Spencer pro-
vided various services related to the upkeep and maintenance
of the organization’s technology and facilities, and Hulse was
responsible for miscellaneous office tasks, such as scheduling
and telephone coverage. Youngberg worked for World Vision
for almost two years; his duties included coordinating ship-
ping and facilities needs as well as scheduling.
When they were hired, Spencer, Hulse, and Youngberg
(collectively, the “Employees”) submitted required personal
statements describing their “relationship with Jesus Christ.”
See infra p. 12554-55. All acknowledged their “agreement
and compliance” with World Vision’s Statement of Faith,
Core Values, and Mission Statement. See infra pp. 12548-49,
12555.
In 2006, World Vision discovered that the Employees
denied the deity of Jesus Christ and disavowed the doctrine of
the Trinity.1 As this was incompatible with World Vision’s
doctrinal beliefs—specifically, the belief that “there is one
God, eternally existent in three persons: Father, Son, and the
Holy Spirit”—the Employees were terminated. See infra p.
12548-49.
1
That is, the Christian doctrine which, as stated by World Vision,
describes God the Father, Jesus Christ, and the Holy Spirit as three per-
sons but one being.
12530 SPENCER v. WORLD VISION
B
The Employees lodged their complaint in the U.S. District
Court for the Western District of Washington, alleging dis-
crimination in violation of Title VII of the Civil Rights Act.
In response, World Vision filed a motion to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and (b)(6). On the
Employees’ motion, the district court converted World
Vision’s request into a motion for summary judgement and
allowed discovery to proceed.
Ultimately, the district court granted summary judgment to
World Vision, concluding that it was a religious entity within
the meaning of 42 U.S.C. § 2000e-1. Spencer v. World Vision,
Inc., 570 F. Supp. 2d 1279, 1280 (W.D. Wash. 2008). In mak-
ing this determination, the district court decided that the fac-
tors discussed in EEOC v. Kamehameha Schools/Bishop
Estate, 990 F.2d 458 (9th Cir. 1993), “d[id] not provide an
accurate framework . . . to determine whether a religious
organization that is not an educational institution is entitled to
Title VII exemption.” Id. at 1285. The court instead relied on
the factors discussed in LeBoon v. Lancaster Jewish Commu-
nity Center Ass’n, 503 F.3d 217 (3d Cir. 2007). Id. at
1285-86. Consideration of those nine factors led the court to
hold that World Vision’s “purpose and character are primarily
religious,” and thus, the organization fell within the language
of 42 U.S.C. § 2000e-1. Id. at 1289.
The Employees timely appealed.
II
[1] There is no dispute that the Employees were fired for
religious reasons. For purposes of this appeal,2 such termina-
tion was permissible if—and only if—World Vision is a “reli-
2
Because World Vision has not relied on any constitutional right to hire
and fire on the basis of religion, we do not comment on that possibility.
SPENCER v. WORLD VISION 12531
gious corporation, association, . . . or society” under 42
U.S.C. § 2000e-1(a). Our only inquiry, therefore, is a de novo
review of the district court’s summary judgment that World
Vision qualifies for the exemption. See Coszalter v. City of
Salem, 320 F.3d 968, 973 (9th Cir. 2003) (“Viewing the evi-
dence in the light most favorable to the plaintiffs, we must
determine whether there are any genuine issues of material
fact and whether the [district court] correctly applied the rele-
vant substantive law.”).3
A
Typically, the question of whether an organization is reli-
gious for purposes of section 2000e-1 warrants little analysis.
In most cases, the organization seeking the exemption is
“clearly” religious, and the result is straightforward. See
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th
Cir. 1988). No one would dispute, for example, that the
Church of Jesus Christ of Latter-Day Saints is a religious
organization. See, e.g., Corp. of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Amos, 483
U.S. 327 (1987).
[2] We have twice addressed this question where the result
was less than obvious. In Townley, we decided that a for-
profit manufacturer of mining equipment did not qualify for
the exemption. 859 F.2d at 619. We characterized our inquiry
as an effort “to determine whether the ‘general picture’ of [an]
institution is primarily religious or secular.” Id. at 618 n.14
(emphasis added). In making that determination, we empha-
sized that “each case must turn on its own facts. All signifi-
cant religious and secular characteristics must be weighed to
determine whether the corporation’s purpose and character
3
The nature of the Employees’ duties is irrelevant to our analysis. If
World Vision qualifies for the exemption, it is entitled to terminate
employees for exclusively religious reasons, without respect to the nature
of their duties. See 42 U.S.C. § 2000e-1(a).
12532 SPENCER v. WORLD VISION
are primarily religious. Only when that is the case will the
corporation be able to avail itself of the exemption.” Id. at
618. We also analyzed the “far from comprehensive” legisla-
tive history of section 2000e-1, speculating that when it
enacted the exemption, Congress “assumed that only those
institutions with extremely close ties to organized religions
would be covered. Churches, and entities similar to churches,
were the paradigm.” Id. at 617-18 (“[T]he central function of
section 702 has been to exempt churches, synagogues, and the
like, and organizations closely affiliated with those entities.”).
Institutions “merely ‘affiliated’ with a religious organization”
would not qualify. Id. at 617.
In Kamehameha, we reaffirmed Townley while concluding
that two private educational institutions did not qualify for the
section 2000e-1 exception. 990 F.2d at 460. We further
explained that section 2000e-1 would be construed “narrow-
ly,” and the institution seeking the benefit of the statute would
“bear the burden of proving [it is] exempt.” Id. Applying
Townley’s “primarily religious” test, we weighed the secular
and religious characteristics of the schools, specifically refer-
encing their (1) ownership and affiliation, (2) purpose, (3)
faculty, (4) student body, (5) student activities, and (6) curric-
ulum. Id. at 461-63.
[3] Ours has not been the only circuit to consider scope of
the section 2000e-1 exemption. In LeBoon, the Third Circuit
concluded that a Jewish community center was a religious
organization within the meaning of section 2000e-1. In doing
so, it agreed with Townley that the proper inquiry involved a
weighing of “ ‘[a]ll significant religious and secular character-
istics.’ ” LeBoon, 503 F.3d at 226 (alteration in original)
(quoting Townley, 859 F.2d at 618). The court then consid-
ered nine factors other “courts have looked at” in determining
whether an entity qualified for section 2000e-1:
(1) whether the entity operates for a profit, (2)
whether it produces a secular product, (3) whether
SPENCER v. WORLD VISION 12533
the entity’s articles of incorporation or other perti-
nent documents state a religious purpose, (4)
whether it is owned, affiliated with or financially
supported by a formally religious entity such as a
church or synagogue, (5) whether a formally reli-
gious entity participates in the management, for
instance by having representatives on the board of
trustees, (6) whether the entity holds itself out to the
public as secular or sectarian, (7) whether the entity
regularly includes prayer or other forms of worship
in its activities, (8) whether it includes religious
instruction in its curriculum, to the extent it is an
educational institution, and (9) whether its member-
ship is made up by coreligionists.
Id. (citing Kamehameha, 990 F.2d 458 and Townley, 859 F.2d
at 618-19). The Third Circuit added the caveat that “not all
factors will be relevant in all cases, and the weight given each
factor may vary from case to case.” Id. at 227. The court also
noted that the section 2000e-1 exemption should not be
denied to institutions because they, inter alia, engage in some
secular activities, do not adhere to the strictest tenets of their
faith, or do not hire only coreligionists. Id. at 229-30.
1
The Employees’ first contend that by applying the nine fac-
tors set forth in LeBoon, rather than the six factors laid out in
Kamehameha, the district court violated Ninth Circuit prece-
dent. The Employees argue that LeBoon “explicitly rejected
the Ninth Circuit’s narrow interpretation of § 2000e-1”—a
narrow interpretation the Employees assert limits the exemp-
tion to “churches, synagogues, and the like” or “[c]hurches,
and entities similar to churches.” Townley, 859 F.2d at 618 &
n.14
Despite the Employees’ protestations to the contrary, our
interpretation of section 2000e-1 is not as “narrow” as they
12534 SPENCER v. WORLD VISION
would have it. First, in Townley, we did not confine our
inquiry to considering whether the manufacturing firm at
issue was essentially a church. Rather, we weighed all rele-
vant religious and secular characteristics to determine whether
the company at issue was “primarily religious or secular” in
nature. See id. at 618-19. Moreover, Townley’s allegedly lim-
iting language— “[c]hurches, and entities similar to churches”
—appears in its discussion of section 2000e-1’s legislative
history, a discussion on which our holding did not depend.
See id.; see also Kamehameha, 990 F.2d at 460 n.5 (“In any
event, the test the court adopted in Townley does not depend
on an analysis of the legislative history.”).4 At the least, the
comment seems more appropriately characterized as a “sug-
gestion” rather than a strict rule. LeBoon, 503 F.3d at 230.
Second, the reading of section 2000e-1 propounded by the
Employees is belied by the text of the statute. Congress
extended the exemption to any “religious corporation, associ-
ation, . . . or society.” 42 U.S.C. § 2000e-1(a). If Congress
had intended to restrict the exemption to “[c]hurches, and
entities similar to churches” it could have said so. Because
Congress did not, some religious corporations, associations,
and societies that are not churches must fall within the exemp-
tion.5
4
Similarly unavailing is any reliance on Townley’s statement that “the
central function of section 702 has been to exempt churches, synagogues,
and the like, and organizations closely affiliated with those entities.” 859
F.2d at 618. The statement was merely descriptive in nature: it followed
a string citation and summarized the manner in which the exemption had
been applied. See id.
5
Our dissenting colleague would also embrace such a narrow interpreta-
tion. She contends that the terms “religious association,” “religious corpo-
ration,” and “religious society” are all synonyms for “church.” Dissent at
12579-84. This interpretation “is . . . at odds with one of the most basic
interpretive cannons, that ‘[a] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superflu-
ous, void or insignificant.’ ” Corley v. United States, 129 S. Ct. 1558,
1566 (2009) (second alteration in original) (quoting Hibbs v. Winn, 542
U.S. 88, 101 (2004)).
SPENCER v. WORLD VISION 12535
Third, the canon of constitutional avoidance counsels
against the Employees’ stringent interpretation of section
2000e-1. See NLRB v. Catholic Bishop, 440 U.S. 490, 500
(1979) (“[A]n Act of Congress ought not be construed to vio-
late the Constitution if any other possible construction
remains available.”). In Townley itself, we noted that the Free
Exercise Clause “clearly” protects “organizations less perva-
sively religious than churches.” 859 F.3d at 620 n.15; see also
id. at 618 n.13 (explaining that even absent the exemption for
religious organizations, “the First Amendment would limit
Title VII’s ability to regulate the employment relationships
within churches and similar organizations”). Moreover, the
Employees’ reading also potentially runs afoul of the Estab-
lishment Clause’s core command of neutrality among reli-
gious groups. See, e.g., Larson v. Valente, 456 U.S. 228, 244
(1982) (“[The] clearest command of the Establishment Clause
is that one religious denomination cannot be officially pre-
ferred over another.”). As the United States argues as amicus,
interpreting the statute such that it requires an organization to
be a “church” to qualify for the exemption would discriminate
against religious institutions which “are organized for a reli-
gious purpose and have sincerely held religious tenets, but are
not houses of worship.” See Thomas M. Messner, Can
Parachurch Organizations Hire and Fire on the Basis of Reli-
gion Without Violating Title VII?, 17 U. Fla. J.L. & Pub.
Pol’y 63, 69-71 (2006) (listing numerous such “parachurch”
organizations); see also Colo. Christian Univ. v. Weaver, 534
F.3d 1245, 1259 (10th Cir. 2008). It would also raise the spec-
ter of constitutionally impermissible discrimination between
institutions on the basis of the “pervasiveness or intensity” of
their religious beliefs. Colo. Christian, 534 F.3d at 1259; see
also Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C.
Cir. 2002) (“[A]n exemption solely for ‘pervasively sectarian’
schools would itself raise First Amendment concerns—
discriminating between kinds of religious schools.”). Thus,
the cramped reading of the exemption put forth by the
Employees raises serious questions under both the Free Exer-
12536 SPENCER v. WORLD VISION
cise Clause and the Establishment Clause. As we must, we
reject this constitutionally questionable interpretation.
That said, there is no denying that we have held that section
2000e-1 should be construed “narrowly.” Kamehameha, 990
F.2d at 460. But the same panel which held that a narrow con-
struction was necessary found nothing contradictory between
such a reading and Townley’s requirement of a case-by-case
weighing of “ ‘[a]ll significant religious and secular character-
istics . . . to determine whether the corporation’s purpose and
character are primarily religious.’ ” Id. (quoting Townley, 859
F.2d at 618). Analysis of additional or alternative factors can-
not contravene circuit precedent which explicitly mandates
consideration of “ ‘[a]ll significant religious and secular char-
acteristics.’ ” Id. (emphasis added).
In sum, when confronted with a section 2000e-1 case,
Townley and Kamehameha require us to analyze, on a case-
by-case basis, whether the “general picture” of an organiza-
tion is “primarily religious,” taking into account “[a]ll signifi-
cant religious and secular characteristics.”6
2
Though our precedent provides us with the fundamental
question—whether the general picture of World Vision is pri-
marily religious—we must assess the manner in which we are
to answer that question in the case at hand. Again, we are told
that we must evaluate “[a]ll significant religious and secular
characteristics.” Townley, 859 F.2d at 618. The Employees
6
We acknowledge that this “primarily religious” test is in tension with
precedent from outside our circuit which has struck down related tests in
different contexts. See Colo. Christian, 534 F.3d at 1250 (striking down
a state statute which provided “scholarships to eligible students who attend
any accredited college in the state—public or private, secular or religious
—other than those the state deems ‘pervasively sectarian’ ” (emphasis
added)); Great Falls, 278 F.3d at 1343 (striking down an inquiry which
“boil[ed] down to ‘is [an entity] sufficiently religious’ ”).
SPENCER v. WORLD VISION 12537
insist that this means we should analogize and apply the
Kamehameha factors. World Vision urges us to do the same
with those considered in LeBoon.
a
Of course, our caselaw does not compel us to march down
a checklist of considerations. Quite the contrary, we have
never “attempt[ed] to outline [section 2000e-1’s] precise
scope,” concluding instead that “each case must turn on its
own facts.” Townley, 859 F.2d at 618. We would thus be
remiss to hold that factors which are “significant” in one case
must be similarly “significant” in all others. As the Third Cir-
cuit trenchantly observed, “not all factors will be relevant in
all cases, and the weight given each factor may vary from
case to case.” LeBoon, 503 F.3d at 227. Our past precedent
tracks this methodology. We did not consider identical “fac-
tors” in Kamehameha and Townley. Compare Townley, 859
F.2d at 619, with Kamehameha, 990 F.2d at 461-63. This
makes eminent sense. After all, Kamehameha involved an
educational institution. Townley involved a for-profit manu-
facturing company. Thus, it should come as no surprise that
dogmatic application of the factors set forth in Kamehameha
—several of which were explicitly tailored to schools—is
inapt when we consider the status of World Vision. As a non-
profit humanitarian relief organization, World Vision is a dif-
ferent animal.
Rigid adherence to the LeBoon factors is also unwarranted,
though for several additional reasons. As an initial matter,
applying some of the factors set forth in that opinion to enti-
ties such as World Vision could create several oddities. To
take just one example, LeBoon could be read to ask us to con-
sider whether World Vision’s “members”—here, its
employees—are coreligionists. See LeBoon, 503 F.3d at 226.
But if World Vision does not qualify for the exemption, hiring
employees on the basis of their religion would constitute a
gross violation of Title VII. We will not encourage organiza-
12538 SPENCER v. WORLD VISION
tions to take actions that might otherwise be illegal in order
to boost their chances to qualify for the exemption. See Kil-
linger v. Samford Univ., 113 F.3d 196, 199-200 (11th Cir.
1997) (“We are also aware of no requirement that a religious
educational institution engage in a strict policy of religious
discrimination—such as always preferring Baptists in
employment decisions—to be entitled to the exemption.”).
b
Even more importantly, several of the LeBoon factors could
be constitutionally troublesome if applied to this case. For
example, one of the factors asks us to take into account the
“religious” or “secular” nature of a particular product or ser-
vice. See LeBoon, 503 F.3d at 226. The Supreme Court, how-
ever, has repeatedly cautioned courts against venturing into
this constitutional minefield.
In Amos, the Court found exactly this sort of inquiry prob-
lematic in the context of determining whether a particular
employee’s duties were religious or secular. There, the lower
court had held that a “building engineer” at a church gymna-
sium performed a secular activity. 483 U.S. at 332. The
Supreme Court reversed, explaining that to force an organiza-
tion to “predict which of its activities a secular court will con-
sider religious,” would impose a “significant burden” and
“might affect the way an organization carried out what it
understood to be its religious mission.” Id. at 336. As Justice
Brennan wrote in concurrence,
determining whether an activity is religious or secu-
lar requires a searching case-by-case analysis. This
results in considerable ongoing government entan-
glement in religious affairs. Furthermore, this pros-
pect of government intrusion raises concern that a
religious organization may be chilled in its free exer-
cise activity. While a church may regard the conduct
SPENCER v. WORLD VISION 12539
of certain functions as integral to its mission, a court
may disagree.
Id. at 343-44 (Brennan, J., concurring) (internal citation omit-
ted). If we should not be in the business of determining
whether a particular “activity” is religious or secular, our
competence to make that determination with respect to a par-
ticular “product” or “service” is in serious doubt.
Similarly, in New York v. Cathedral Academy, 434 U.S.
125 (1977), the Court struck down a law which authorized
reimbursement payments to nonpublic schools for certain
“testing services required by state law.” Id. at 127. The Court
held that the law created a Catch-22: it either impermissibly
advanced religion by providing support for testing which fur-
thered religion, or it resulted in excessive entanglement with
religion as the government attempted to sort out religious and
nonreligious activities. Id. at 132-33. As to the latter, the
Court remarked that “[t]he prospect of church and state liti-
gating in court about what does or does not have religious
meaning touches the very core of the constitutional guarantee
against religious establishment.”7 Id. at 133.
In the case at hand, however, we have repeatedly been
asked to engage in exactly this sort of inquiry into “what does
or does not have religious meaning.” For example, World
7
It is true that courts sometimes must decide whether a statute has the
purpose of advancing or inhibiting religion. See, e.g., Zelman v. Simmons-
Harris, 536 U.S. 639, 648-49 (2002); Stone v. Graham, 449 U.S. 39,
40-41 (1980). This inquiry, however, only asks courts to interpret statutes,
not whether particular practices have religious meaning. Likewise, courts
are certainly competent to decide whether an individual’s religious beliefs
are sincerely held. See Hernandez v. Comm’r, 490 U.S. 680, 693 (1989).
This determination focuses on the credibility of the individual’s testimony,
not on the religious or nonreligious nature of his actions. Thus, there is no
merit to the dissent’s assertion that courts adjudicating constitutional
claims evaluate an individual’s actions to “distinguish[ ] between the reli-
gious and the secular.” Dissent at 12592-93.
12540 SPENCER v. WORLD VISION
Vision contends that its humanitarian relief efforts have reli-
gious meaning; the Employees claim they do not. If we were
to apply this prong of the LeBoon test to the case at hand, we
would at least implicitly have to answer to that question. The
very act of making that determination, however, runs counter
to the “core of the constitutional guarantee against religious
establishment.” Cathedral Acad., 434 U.S. at 133; see also
Catholic Bishop, 440 U.S. at 502 (noting that, when inquiring
into whether a particular position was religious or secular,
“[i]t is not only the conclusions that may be reached by the
[government agency] which may impinge on rights guaran-
teed by the Religion Clauses, but also the very process of
inquiry leading to findings and conclusions“ (emphasis
added)); cf. Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plu-
rality opinion) (“[I]nquiry into . . . religious views . . . is not
only unnecessary but also offensive. It is well established . . .
that courts should refrain from trolling though a person’s or
institution’s religious beliefs.”).
Section 2000e-1’s statutory history suggests that we are not
the only governmental entity to recognize the dangers of this
particular inquiry. An earlier version of the statute extended
the exemption merely to the “religious activities” of covered
organizations. See Civil Rights Act of 1964, Pub. L. No. 88-
352, § 702, 78 Stat. 241, 255 (stating that Title VII did not
apply “to a religious corporation, association, or society with
respect to the employment of individuals of a particular reli-
gion to perform work connected with the carrying on by such
corporation, association, or society of its religious activities”
(emphasis added)). Congress amended the statute, however, to
remove the limiting reference to “religious activities.” See
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-
261, § 3, 86 Stat. 103, 104.
On a related note, LeBoon asks us to determine whether an
organization’s founding purpose is religious or secular in
nature. See LeBoon, 503 F.3d at 226. For all the reasons dis-
cussed above, where the nature of an organization’s purpose
SPENCER v. WORLD VISION 12541
is disputed, this factor is a second invitation to wander into
the constitutional briar patch of distinguishing between the
sacred and the secular. If we are ill-equipped to determine
whether an activity or service is religious or secular in nature,
how are we to know which side of the line an entity’s “pur-
pose” falls on?8
c
The factor which would have us ask whether an organiza-
tion is affiliated with or supported by a “formally religious”
entity is no less problematic. See LeBoon, 503 F.3d at 226;
Kamehameha, 990 F.2d at 461. In the first place, this inquiry
begs the question: it gives no means by which to determine
whether the parent organization is religious. While that
answer is obvious when dealing with, for example, a Catholic
hospital, it would not be so straightforward when the parent
entity is less obviously religious.
Moreover, this consideration contains the potential for dis-
crimination amongst religious institutions. In short, a con-
strained reading of this factor favors institutions which claim
a denominational affiliation over those who do not.9 As the
United States argues as amicus curiae, “[t]o deny World
8
The same is true for factors which ask this court to determine whether
an organization includes “prayer” or “worship” in its activities, or whether
it disseminates a “religious” curriculum. While these questions are rela-
tively easy in some contexts, they might prove more difficult when dealing
with religions whose practices do not fit nicely into traditional categories.
In such a scenario, it is questionable whether a court is competent to dis-
tinguish religious speech (or instruction) from other activities. Cf. Widmar
v. Vincent, 454 U.S. 263, 269 n.6 (1981) (noting, in a free speech case,
that a distinction between particular types of religious speech would lack
“intelligible content”).
9
This consideration would cut against entities formed by an appreciable
portion of the population. According to a 2000 Harris poll, non-
denominational Protestants make up 7.7 percent of the U.S. population.
See Largest Religious Groups in the USA, http://www.adherents.com/rel_
USA.html#families (last visited Aug. 12, 2010).
12542 SPENCER v. WORLD VISION
Vision the protection of section 2000e-1(a) also could raise
serious constitutional questions by discriminating in favor of
houses of worship and against independent, ‘parachurch’
groups like World Vision, which are organized for religious
purposes and have religious tenets, but are not affiliated with
any particular congregation or sect.” See also Larson, 456
U.S. at 244; Colo. Christian, 534 F.3d at 1259 (refusing to
discriminate between “types” of religious institutions); Great
Falls, 278 F.3d at 1346 (same).
d
The Supreme Court’s decision in Larson is instructive. In
that case, the Court struck down “a Minnesota[ ] statute
imposing certain registration and reporting requirements upon
only those religious organizations that solicit more than fifty
percent of their funds from nonmembers.” 456 U.S. at 230.
The Court observed that such law made “explicit and deliber-
ate distinctions between different religious organizations.” Id.
at 246 n.23. It
effectively distinguishe[d] between well-established
churches that have achieved strong but not total
financial support from their members, on the one
hand, and churches which are new and lacking in a
constituency, or which, as a matter of policy, may
favor public solicitation over general reliance on
financial support from members, on the other hand.
Id. (internal quotation marks omitted). Such preferences were
unconstitutional unless justified by compelling governmental
interests. Id. at 246-47.
Thus, weighing the religious or irreligious nature of fund-
ing sources could pose similarly troublesome difficulties
involving “distinctions between different religious organiza-
tions.” As was the case in Larson, looking to whether an
entity is “financially supported” by a formally religious entity
SPENCER v. WORLD VISION 12543
could effectively discriminate between “well-established”
organizations, who have weaned themselves of revenue from
their “mother” church, and those “which are new” and still
dependent on their parent organization. In the same way, such
inquiry could discriminate between organizations which
“favor public solicitation over general reliance on financial
support” from other religious institutions.10
In spite of these attendant constitutional concerns, both
Townley and Kamehameha relied on characterizations of
whether certain attributes of a organization were secular or
religious in nature. See Kamehameha, 990 F.2d at 461-63;
Townley, 859 F.2d at 619. Those characterizations, however,
were not our own. In Townley, the secular nature of the com-
pany’s product was “admitted[ ].” 859 F.2d at 619. Likewise,
Kamehameha contains no indication that the religious or secu-
lar nature of any particular activity or purpose was in dispute.11
See 990 F.2d at 461-64. Obviously, if there is no controversy
regarding a religious or secular classification, the constitu-
tional concerns detailed above are not implicated. Thus,
where there is no dispute that a particular activity or purpose
is religious in nature, we may rely on the parties’ character-
ization. In a case such as this, where the matter is hotly con-
tested, however, we should stay our hand and rely on
considerations that do not require us to engage in constitution-
ally precarious inquires. See LeBoon, 503 F.3d at 230 (citing
10
Making a finding of religiosity contingent on receipt of support from
coreligionists could also raise constitutional issues in that it might burden
a religious institution’s ability to raise revenue. For example, an entity in
need of funds might be hesitant to solicit donations from secular sources
if such solicitation would deny it section 2000e-1 eligibility.
11
We did remark that the “[s]chools’ purpose and character is primarily
secular, not primarily religious.” Kamehameha, 990 F.2d at 464. We
reached this conclusion by assessing whether the quantum of admittedly
religious activity at the schools was sufficient to demonstrate that the
schools’ purpose was primarily secular. We did not assess whether any
particular activity was religious in nature. See id. at 461-63.
12544 SPENCER v. WORLD VISION
entanglement concerns as a reason for declining to decide
whether an activity was religious or cultural).
e
As for the affiliation factor, to the extent we are required
to consider it, we are disinclined to afford it much weight in
light of potential it presents for discrimination amongst reli-
gious institutions.12 The fact that prior organizations found eli-
gible for section 2000e-1 relief have generally been “wholly
or partially owned by a church,” Kamehameha, 990 F.2d at
461 n.7, does not mean that we should deny relief to equally
religious organizations that are not similarly affiliated.
III
A
Although Judge Kleinfeld and I agree on the forgoing prin-
ciples and on the result in this case, we disagree as to the
proper test for distinguishing religious entities entitled to the
section 2000e-1 exemption from those entities not entitled to
the exemption.
[4] In my view, where the religious or nonreligious nature
of a particular activity or purpose is in dispute, we should not
rely exclusively on LeBoon’s hodgepodge of constitutionally
questionable inquiries. Rather, I believe the better approach
can be summarized as follows: a nonprofit entity13 qualifies
for the section 2000e-1 exemption if it establishes that it 1) is
organized for a self-identified religious purpose (as evidenced
12
Again, neither Townley, Kamehameha, nor LeBoon give any advice on
how we are to weigh the various factors, except to say that their signifi-
cance could vary from case to case. See LeBoon, 503 F.3d at 227.
13
In Amos, the Supreme Court expressly left open the question of
whether a for-profit entity could ever qualify for a Title VII exemption.
483 U.S. at 349 (O’Connor, J., concurring).
SPENCER v. WORLD VISION 12545
by Articles of Incorporation or similar foundational docu-
ments), 2) is engaged in activity consistent with, and in fur-
therance of, those religious purposes, and 3) holds itself out
to the public as religious. See Great Falls, 278 F.3d at 1343;
Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383,
399-400, 403 (1st Cir. 1985) (en banc) (Breyer, J.).
This analysis minimizes any untoward differentiation
among religious organizations and any unseemly judicial
inquiry into whether an activity is religious or secular in
nature. First and foremost, it centers on neutral factors (i.e.,
whether an entity is a nonprofit and whether it holds itself out
as religious). Rather than forcing courts to “troll[ ] through
the beliefs of [an organization], making determinations about
its religious mission,” Great Falls, 278 F.3d at 1342, it per-
mits an institution to acknowledge its own religiosity. The
furtherance prong likewise avoids any untoward judicial
inquiry; all we must do is evaluate the purpose provided by
the organization against the organization’s practice.
[5] The initial consideration, whether the entity is a non-
profit, is especially significant. Because “persons having a
personal and private interest in the activities of [a nonprofit]
organization” may not receive any portion of its net earnings,
26 C.F.R. § 1.501(a)-1(c); see id. § 1.501(c)(3)-1(c)(2), an
organization’s status as a nonprofit bolsters a claim that its
purpose is nonpecuniary. It is true that a “nonprofit” may
make a “profit”— at least in the sense that it may have net
earnings because its revenues exceed its costs. But, a non-
profit entity is distinguished from a for-profit entity by what
it does with its net earnings. A nonprofit entity must spend
any net earnings to advance its tax-exempt purpose, and may
not distribute its net earnings to its principals as dividends,
bonuses, or excessively high salaries. See 26 U.S.C.
§ 501(c)(3) (stating that an organization qualifies as a non-
profit if “no part of the net earnings of [the organization]
inures to the benefit of any private shareholder or individu-
al”); see also 26 C.F.R. § 1.501(c)(3)-1(b)(4). This is not to
12546 SPENCER v. WORLD VISION
say that a nonprofit organization may not compensate its
employees at a market rate. See 26 C.F.R. § 1.501(c)(3)-
1(f)(2)(ii) (stating that the IRS may revoke an organization’s
nonprofit status for providing its employees disproportionate
compensation for their services). Just as a nonprofit hospital
may pay $5 million for a new MRI machine that costs $5 mil-
lion, it may pay $400,000 a year to hire a radiologist when the
going rate for a radiologist is $400,000 a year. See id.
[6] Because a nonprofit may not distribute its net earnings
to its organizers or employees, the fact that an entity is struc-
tured as a nonprofit provides strong evidence that its purpose
is purely nonpecuniary. As Justice Brennan observed in his
concurrence in Amos, “[t]he fact that an operation is not orga-
nized as a profit-making commercial enterprise makes color-
able a claim that it is not purely secular in orientation.” Amos,
483 U.S. at 344 (Brennan, J., concurring).14 Indeed, “nonprof-
its historically have been organized specifically to provide
certain community services, not simply to engage in com-
merce.” Id. “[P]rovision of such services [is often regarded]
as a means of fulfilling religious duty and providing an exam-
ple of the way of life a [religion] seeks to foster.” Id. These
realities bolster a “contention that an entity is not operated
simply in order to generate revenues . . . , but that the activi-
ties themselves are infused with a religious purpose.” Id.
[7] The test I propose also ensures that the section 2000e-
1 exemption will remain “narrow[ ].” Kamehameha, 990 F.2d
at 460. Requiring that an organization hold itself out as reli-
gious “helps to ensure that only bona fide religious institu-
tions are exempted.” Great Falls, 278 F.3d at 1344. “[S]uch
public representations serve as a market check. While public
religious identification will no doubt attract some [people] to
the institution, it will dissuade others. In other words, it comes
14
Justice Brennan would have gone so far as to impose a “categorical
exemption for nonprofit activities.” Amos, 483 U.S. at 345 (Brennan, J.,
concurring).
SPENCER v. WORLD VISION 12547
at a cost. Such market responses will act as a check on institu-
tions that falsely identify themselves as religious merely to
obtain [the benefit of the section 2000e-1] exemption . . . .”
Id.
B
Having set forth what I believe to be the appropriate test to
determine whether an organization qualifies for the section
2000e-1 exemption, I now apply it to the facts of this case.
1
[8] I first note that World Vision operates as a nonprofit
entity. See Townley, 859 F.2d at 619; see also LeBoon, 503
F.3d at 226; Killinger, 113 F.3d at 199. The Employees make
much of the fact that World Vision is a “billion-dollar-per
year” business whose leaders receive six-figure salaries. They
highlight the contrast between the large, international humani-
tarian relief organization that is World Vision, and the local
Jewish community center in LeBoon, which served only a
“discrete religious community.”
[9] In essence, the Employees ask this court to penalize
World Vision for doing “too much” humanitarian work. They
do not explain how the scope of World Vision’s operations
changes the undisputed fact that World Vision is a nonprofit
entity which the IRS has classified as a 501(c)(3) tax-exempt
organization. Cf. Townley, 859 F.2d at 619 (noting that the
company’s for-profit status weighed against section 2000e-1
coverage). I am satisfied that World Vision’s nonprofit status
“makes colorable [World Vision’s] claim that it is not purely
secular in orientation.” Amos, 483 U.S. at 344 (Brennan, J.,
concurring).
12548 SPENCER v. WORLD VISION
2
[10] I next assess whether World Vision is organized for
a self-identified religious purpose. See LeBoon, 503 F.3d at
226; Kamehameha, 990 F.2d at 462; Townley, 859 F.2d at
619; cf. LeBoon, 503 F.3d at 226-27 (“It is apparent from the
start that the decision whether an organization is ‘religious’
for purposes of the exemption cannot be based on its confor-
mity to some preconceived notion of what a religious organi-
zation should do, but must be measured with reference to the
particular religion identified by the organization.”). Even a
cursory review of World Vision’s Articles of Incorporation,
bylaws, core values, and mission statement reveal explicit and
overt references to a religious purpose.15
[11] World Vision’s 1950 Articles of Incorporation, state
that the “primary business” of the organization “is to conduct
Christian religious missionary services, to assist in improving
and ameliorating the moral and social conditions of humanity,
[and] to provide services to God’s people which will enable
them to accomplish more quickly and efficiently the Great
Commission of advancing the Kingdom of God on earth.” As
amended in 1980, the Articles read:
The primary exclusive and only purposes for which
this corporation is organized are religious ones . . .
including . . . to conduct Christian religious and mis-
sionary services, to disseminate, teach and preach
the Gospel and teachings of Jesus Christ, to encour-
age and aid the growth, nurture and spread of the
Christian religion and to render Christian service,
both material and spiritual to the sick, the aged, the
homeless and the needy. The recital of these pur-
poses . . . is intended to be exclusive of any and all
15
For the reasons detailed above, I do not consider the Employees’ argu-
ment that World Vision’s stated mission is humanitarian, and thus secular
in nature. See supra Part II.A.2.b.
SPENCER v. WORLD VISION 12549
other purposes, this corporation being formed for
such religious purposes only.
Also included in the Articles is the commitment to “continu-
ally and steadfastly uphold and maintain the following state-
ment of faith,” which begins:
(a) We believe the Bible to be the inspired, the only
infallible, authoritative Word of God.
(b) We believe that there is one God, eternally exis-
tent in three persons: Father, Son, and the Holy
Spirit.
(c) We believe in the deity of our Lord Jesus Christ,
in His virgin birth, in His sinless life, in His mira-
cles, in His vicarious and atoning death through His
shed blood, in His bodily resurrection, in His ascen-
sion to the right hand of the Father, and in His per-
sonal return.
This Statement of Faith is echoed in the organization’s “Core
Values,”16 mission statement,17 and “Core Characteristics.”18
16
Some relevant selections include the following:
We are Christian[:]
We acknowledge one God: Father, Son and Holy Spirit. In Jesus
Christ the love, mercy and grace of God are made known to us
and all people. From this overflowing abundance of God’s love
we find our call to ministry.
We proclaim together, “Jesus lived, died and rose again. Jesus is
Lord.” We desire him to be central in our individual and corpo-
rate lives.
We seek to follow him—in his identification with the poor, the
afflicted, the oppressed, the marginalised; in his special concern
for children; in his respect for the dignity bestowed by God on
women equally with men; in his challenge to unjust attitudes and
systems; in his call to share resources with each other; in his love
12550 SPENCER v. WORLD VISION
[12] In Kamehameha, the instrument that established the
schools, a will, did not provide that the schools’ purpose was
religious, only that “the teachers of said schools shall forever
be persons of the Protestant religion.” 990 F.2d at 459. After
considering the entire record, we concluded that “the general
picture of the [s]chools reflects a primarily secular rather than
a primarily religious orientation.” Id. at 461. We took note
that the schools’ public statements and curriculum had once
emphasized their Protestant roots, but that by the 1990s, the
schools’ religious characteristics consisted of “minimal,
largely comparative religious studies, scheduled prayers and
services, quotation of Bible verses in a school publication,
and the employment of nominally Protestant teachers for sec-
ular subjects.” Id. at 462-63. By contrast, World Vision’s
organizing principles were religious, it has always presented
itself as a religious institution, and it continues to do so. Thus,
I have no trouble concluding that unlike the private schools in
Kamehameha or the business in Townley, World Vision is
organized for an avowedly religious purpose.
3
Having established that World Vision’s organizing princi-
ples are avowedly religious, I examine whether the organiza-
tion is engaged in activity consistent with, and in furtherance
of, those purposes. The Employees claim that, like the schools
in Kamehameha, the World Vision’s activities are no longer
in line with its stated purposes. See Kamehameha, 990 F.2d
for all people without discrimination or conditions; in his offer of
new life through faith in him. From him we derive our holistic
understanding of the gospel of the kingdom of God, which forms
the basis of our response to human need.
17
World Vision’s self-stated “Mission,” and “day-to-day reason for
being” is “[t]o call people to a life-changing commitment to serve the poor
in the name of Christ.”
18
These “Core Characteristics” are designed to provide staff guidance.
Each characteristic is linked to a particular verse from the Bible.
SPENCER v. WORLD VISION 12551
at 462. To that end, the Employees place emphasis on the fact
that World Vision does not condition receipt of its services on
religious belief.
In practical terms, World Vison’s profession that it is “ded-
icated to serving God by serving man” plays itself out through
“six basic ministries”: “1) caring for children in need, 2)
building self reliance among the needy, 3) emergency aid and
relief, 4) evangelism, 5) strengthening Christian leadership
and 6) educating Americans about the needs of the suffering
around the world.” Among other things, World Vision pro-
vides disaster relief services, assists in combating the spread
of HIV/AIDS, and runs programs which pair at-risk children
and teens with mentors from their community. The organiza-
tion also reaches out to American churches to raise awareness
about humanitarian needs around the globe.
To the general public, World Vision is perhaps best known
for its child sponsorship program. Donors are paired with par-
ticular children and their contributions provide access to clean
water, food, health care, education, vocational training, and—
for those children who are interested—the opportunity to
learn about the Christian faith.
The last caveat reflects the fact that World Vision does not
proselytize. Its services are made available to people of all
faiths or of no faith. Indeed, World Vision claims that to do
otherwise “would be contrary to its theology.” Instead, the
organization explains that it attempts to express its “Christian
witness . . . in holistic ways through . . . ministries of relief,
development, advocacy and public awareness.” Humanitarian
services are thus provided without strings attached, though
World Vision operates numerous religious programs for those
who express interest.
[13] This review of undisputed evidence in the record
readily shows that World Vision continues to conform to its
founding documents, conducting “Christian religious and mis-
12552 SPENCER v. WORLD VISION
sionary services” and “render[ing] Christian service, both
material and spiritual to the sick, the aged, the homeless and
the needy.” Indeed, that is essentially all World Vision
appears to do. Such continued devotion to the organization’s
founding aims stands in stark contrast to the situation in
Kamehameha, where “the purpose and emphasis of the
[s]chools ha[d] shifted over the years from providing religious
instruction to equipping students with ethical principles.” 990
F.2d at 462.
[14] I am not persuaded by the Employees’ claim that
World Vision is acting inconsistently with its mission because
it does not confine its relief efforts to coreligionists. Accord-
ing to World Vision, providing humanitarian aid to all in
need, regardless of religious belief, is a tenet of its faith. See
supra pp. 12548-49. The Employees thus ask us to require
World Vision to act contrary to such belief in order to qualify
for the exemption. The plaintiff in LeBoon raised a similar
argument, which the Third Circuit properly discounted.
We disagree with LeBoon’s contention that the
[community center’s] willingness to welcome Gen-
tile members and even to host Hindu services is
incompatible with the view that the [center] was a
religious organization. Indeed, these characteristics
are clearly tied to some of the Jewish principles that
guided the [center] . . . . We will not deprive the
[center] of the protection of [section 2000e-1]
because it sought to abide by its principles . . .
through extending its welcome to non-Jews.
LeBoon, 503 F.3d at 230. I agree with the D.C. Circuit that
to confine an exemption “to religious institutions with hard-
nosed proselytizing, that limit their enrollment to members of
their religion . . . is an unnecessarily stunted view of the law.”
Great Falls, 278 F.3d at 1346 (citing Larson, 456 U.S. at 244)).19
19
Not to mention that this would again raise considerations of discrimi-
nation among religious institutions: here, between groups that engage in
“hard nosed proselytizing” and those that do not. See supra Part II.A.2.b.
SPENCER v. WORLD VISION 12553
[15] Moreover, the Employees’ argument would lead to
absurd results. Hosts of religious organizations—including
such obviously religious entities as churches or synagogues—
open their doors to all. They provide religious instruction,
counseling, prayer, and a variety of other services without
concern for whether the individual requesting such services is
a coreligionist. Adopting the Employees’ standard compels
the conclusion that this inclusivity cuts against an entity’s
ability to qualify for the section 2000e-1 exemption. Thus, the
fact that World Vision provides its services without condition
does not suggest it is ineligible for the exemption.
4
[16] I next ask whether World Vision holds itself out to the
public as a religious organization. Even the Employees con-
cede this point. They could do little else. World Vision makes
no effort to disguise its Christian nature.
[17] At the most basic level, World Vision’s logo is a styl-
ized Christian cross, and religious artwork and texts are dis-
played throughout the organization’s campus. Much more
significantly, World Vision disseminates Christian Messaging
Guidelines within the organization to “guide” ”[e]xternal
communications.” The Guidelines state that World Vision “is
intentional about communicating [its] Christian faith accu-
rately and with integrity”: “[i]n a world where many institu-
tions have moved away from their Christian roots, [World
Vision] remain[s] committed to living out [its] faith through
[its] work.” The organization requires that “[a]t a minimum,
World Vision’s descriptor statement must be on every piece
of communication.”20 Furthermore, “World Vision always
20
The following is an example of the “descriptor statement”:
World Vision is a Christian humanitarian organization dedicated
to working with children, families, and their communities world-
wide to reach their full potential by tackling the causes of poverty
and injustice. Motivated by our faith in Jesus Christ, we serve
along side the poor and oppressed as a demonstration of God’s
unconditional love for all people. World Vision serves all people,
regardless of religion, race, ethnicity or gender.
12554 SPENCER v. WORLD VISION
identifies itself as a Christian organization.” In reviewing
external communications, employees are to ask themselves,
“Would anyone who read this know that World Vision is a
Christian organization?” They are also instructed: “[Convey-
ing the organization’s Christian nature is] NOT AN ADD-
ON. Because we demonstrate our faith through life, deed,
word, and sign, our Christian witness is integrated into all that
we do. Christian witness should be communicated as part of
everything World Vision does.”
This overt Christianity is especially evident to those apply-
ing for employment at World Vision. For example, the fol-
lowing appears on the World Vision’s “Careers” webpage:
Who we are:
Motivated by our faith in Jesus, we serve the poor as
a demonstration of God’s unconditional love for all
people. Our faith is at the heart of all we do. Founda-
tional to our work is the commitment to a shared
faith by staff, volunteers and interns, and a common
understanding of how that faith is lived out day-to-
day.
Who you are:
You are a committed Christian eager to put your
faith into action every day as you use your life to
make a tangible difference for children in need. You
recognize the importance of working together with
diverse partners—including individuals, churches,
corporations, and governments—to help build a bet-
ter world in which all people are free from oppres-
sion, where peace and justice flourish, and where the
most vulnerable live in confidence.
You are an experienced, results-oriented professional
excited at the prospect of using the unique gifts and
SPENCER v. WORLD VISION 12555
talents God has given you to help children and fami-
lies in need. World Vision U.S. hires only those who
agree to and accept its Statement of Faith and/or the
Apostles’ Creed.21
All employees who are offered positions with the organization
are presented an offer letter containing the text of Romans
8:28 (“And we know that God causes all things to work
together for good to those who love God, to those who are
called according to HIS purpose.”). While prospective
employees are not required to belong to a particular Christian
denomination, applicants are specifically requested to
describe their “relationship with Jesus Christ.” They are also
informed that employment is contingent upon “agreement and
compliance with” World Vision’s Statement of Faith and/or
the Apostles’ Creed, as well as World Vision’s Core Values
and Mission Statement. The prospective employee must
acknowledge that she has “received, read, and discussed
the[se] documents, and . . . subscribe[s], wholeheartedly, to
the principles inherent therein.”
[18] In a case such as this, where an organization “holds
itself out publically as a religious institution, ‘[w]e cannot
doubt that [it] sincerely holds this view.’ ” Great Falls, 278
F.3d at 1344 (alterations in original) (quoting Boy Scouts of
Am. v. Dale, 530 U.S. 640, 653 (2000)).
21
The Apostles’ Creed, as it appears on World Vision’s website, reads
as follows:
I believe in God, the Father almighty, creator of heaven and
earth. I believe in Jesus Christ, God’s only Son, our Lord, who
was conceived by the Holy Spirit, born of the Virgin Mary, suf-
fered under Pontius Pilate, was crucified, died, and was buried;
he descended to the dead. On the third day he rose again; he
ascended into heaven, he is seated at the right hand of the Father,
and he will come again to judge the living and the dead. I believe
in the Holy Spirit, the holy catholic church, the communion of
saints, the forgiveness of sins, the resurrection of the body, and
the life everlasting. AMEN.
12556 SPENCER v. WORLD VISION
5
[19] I reluctantly comment on the fact that World Vision
is not associated with any particular church or denomination
and no representative of such an entity serves on World
Vision’s board of directors and only do so because our prece-
dent compels such an inquiry. The Employees contend that
this lack of affiliation is fatal to World Vision’s attempt to
qualify for the section 2000e-1 exemption. See LeBoon, 503
F.3d at 226; Kamehameha, 990 F.2d at 461. Because, as
explained above, such a conclusion would impermissibly dis-
criminate amongst religious institutions, I cannot agree with
this assertion. See supra Part II.A.2.b.
I also observe that in LeBoon, the Jewish community center
at issue was neither wholly nor partially owned by a syna-
gogue. Instead, the Third Circuit’s affiliation analysis dis-
cussed the center’s “close and active ties” with “three local
synagogues,” its reliance “on coreligionists for financial sup-
port,” and its inclusion of three rabbis “in management deci-
sions.” LeBoon, 503 F.3d at 227-29.
[20] Applying this analysis, there is ample evidence in the
record to indicate that World Vision receives a large portion
of its funding from coreligionists: both from individuals and
from churches. World Vision solicits donations from the gen-
eral public on its website for, inter alia, individual children,
“Disaster Response,” “Clothing for Children,” “Africa Food
Aid,” “Hope for Sexually Exploited Girls,” and “Seeds,
Tools, and Training in Africa,” While these individual web
links do not necessarily make explicit reference to World
Vision’s religious nature, fundraising letters do contain
descriptions of the organization’s Christian character. In
recent years, approximately eighty-four percent of World
Vision’s cash contributions have come from churches and
coreligionists.
SPENCER v. WORLD VISION 12557
World Vision also “maintains close and active ties” with a
host of “formally religious” institutions. Currently, ten mem-
bers of its Board of Directors come from “church and ministry
leadership,” a category that “must” be represented. Moreover,
it is undisputed that World Vision is affiliated with WVI, an
organization classified as a “church” for tax purposes by the
IRS.22
6
[21] Because the Employees concede this point, I also find
it appropriate briefly to note that World Vision includes
prayer or other forms of worship in its activities. LeBoon, 503
F.3d at 226. This concession is also confirmed by overwhelm-
ing, undisputed evidence in the record.
According to World Vision, because it “believes the key to
faithfully following Christ lies first in the hearts and minds of
[its] staff and only then in program activities,” religion per-
vades the workplace.23 New employees participate in a two-
day orientation which begins with daily devotionals and “fo-
cuses on serving Christ as the motivation for serving the
poor.” Through the “Faith@Work” program, World Vision
employees are “strongly encouraged” to attend weekly chapel
services; daily devotional activities are held within each
department; prayer requests are circulated amongst
coworkers; Biblical “themes” are emphasized annually, quar-
22
Plaintiffs also make much of the fact that World Vision receives
approximately twenty-five percent of its funds from federal grants. Apart
from conclusory allegations, however, they do not explain how receipt of
government funds undermines World Vision’s religiosity or bars its classi-
fication as a religious entity.
23
World Vision’s website describes the workplace environment as fol-
lows: “World Vision is a community of Christians who are committed to
serve the poor in the name of Christ. The staff at our U.S. headquarters
represent more than 38 different Christian denominations. Our common
purpose and love for Jesus Christ creates a friendly, supportive environ-
ment.”
12558 SPENCER v. WORLD VISION
terly, and monthly; and an entire work day is set aside each
year for prayer.24
C
[22] Based on the foregoing consideration of “[a]ll signifi-
cant religious and secular characteristics,” I am satisfied that
World Vision has met its burden of showing that the “general
picture” of the organization is “primarily religious.” World
Vision is a nonprofit organization whose humanitarian relief
efforts flow from a profound sense of religious mission. That
mission is evinced in the organization’s founding documents.
Significantly, World Vision continues to act in accordance
with those documents, and it explicitly and intentionally holds
itself out to the public as a religious institution. While World
Vision is neither owned by nor affiliated with a formally reli-
gious entity in the traditional sense, this does not preclude our
finding that it is a “primarily religious” organization and thus
eligible for the section 2000e-1 exemption.
IV
The district court’s grant of summary judgment to World
Vision is
AFFIRMED.
24
It is true, as Plaintiffs note, that the fact that the employees in Townley
were required to attend devotional services did not preclude this court
from finding the entity secular in nature. 859 F.2d at 619. The inquiry,
however, is multifaceted. While the company in Townley conducted devo-
tional services, it was also a for-profit manufacturer of an “admittedly sec-
ular product”: mining equipment. Id.
SPENCER v. WORLD VISION 12559
KLEINFELD, Circuit Judge, concurring:
All three of us agree that a multifactor test does not work
well because it is inherently too indeterminate and subjective,
but we disagree on what the test ought to be. I write sepa-
rately because, although I agree with Judge O’Scannlain that
we should affirm, I disagree with both my colleagues’ formu-
lations of the test to be applied. I concur in Parts I, II, and IV
of Judge O’Scannlain’s opinion.
The Civil Rights Act of 1964 generally prohibits discrimi-
nation based on religion, but exempts religious institutions:
This subchapter shall not apply to . . . a religious cor-
poration, association, educational institution, or soci-
ety with respect to the employment of individuals of
a particular religion to perform work connected with
the carrying on by such corporation, association,
educational institution, or society of its activities.1
Our task is to decide whether World Vision is a “religious
corporation, association, educational institution, or society.”
Judge O’Scannlain formulates this test: “a nonprofit entity
qualifies for the section 2000e-1 exemption if it establishes
that it 1) is organized for a self-identified religious purpose
(as evidenced by Articles of Incorporation or similar founda-
tional documents), 2) is engaged in activity consistent with,
and in furtherance of, those religious purposes, and 3) holds
itself out to the public as religious.” Judge Berzon formulates
this one: “Congress used the terms ‘religious corporation,
association . . . or society’ . . . to describe a church or other
group organized for worship, religious study, or the dissemi-
nation of religious doctrine.” I agree with Judge O’Scannlain
that World Vision falls within the statutory exemption, but in
1
42 U.S.C. § 2000e-1(a).
12560 SPENCER v. WORLD VISION
my view, his test is too inclusive, and Judge Berzon’s is too
exclusive.
The Civil Rights Act and the exemption are not mere
words. They are designed to accomplish something, they have
purposes, and the words cannot be understood without consid-
ering the purposes. Purposes are not the same thing as legisla-
tive history, often merely a depositary for lobbyists’ requests
that did not make it into the statute.2 The Civil Rights Act of
1964 is intended to free us from the curse of discrimination
in hiring by “race, color, religion, sex, or national origin.”3
But without an exemption for religious institutions, that Act
would have the unintended consequence of preventing the
free exercise of religion.4 If the government coerced staffing
of religious institutions by persons who rejected or even were
hostile to the religions the institutions were intended to
advance, then the shield against discrimination would destroy
the freedom of Americans to practice their religions. Judge
O’Scannlain’s test would facilitate free exercise of religion,
but would also allow people to advance discriminatory objec-
tives outside the context of religious exercise by means of
mere corporate paperwork. Judge Berzon’s would limit reli-
gious exercise to worship, study, and dissemination, and deny
people the freedom to employ only people who share their
religion for their other religious activities. If an interpretation
2
See Puerta v. United States, 121 F.3d 1338, 1344 (9th Cir. 1997).
3
42 U.S.C. § 2000e-2(a).
4
See Corp. of the Presiding Bishop of the Church of Jesus Christ of Lat-
ter Day Saints v. Amos, 483 U.S. 327, 335-36 (1987); Little v. Wuerl, 929
F.2d 944, 949 (3d Cir. 1991); cf. EEOC v. Pacific Press Publ’g Ass’n, 676
F.2d 1272, 1276 (9th Cir. 1982) (discussing potential Free Exercise prob-
lems arising from the application of Title VII of the Civil Rights Act to
religious organizations, but noting that Congress only exempted religious
organizations from the ban on religious discrimination, not other forms of
discrimination), abrogation on other grounds recognized by American
Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir.
1991).
SPENCER v. WORLD VISION 12561
disserves the evident purposes of the Civil Rights Act and the
religious institution exemption, then it is probably mistaken.
Judge Berzon’s reading purports to be a noscitur a sociis
construction, but ignores the phrase “educational institution.”
The justification she gives is that World Vision is not an edu-
cational institution, but the phrase cannot be ignored if we are
to use noscitur a sociis as an interpretive aid. The statute does
not say “religious corporation, association, or society.” It says
“religious corporation, association, educational institution, or
society.” Congress quite plainly, by including “educational
institution” in the exemption, expressed a purpose of exempt-
ing religious institutions that were not churches, not just those
that were. Noscitur a sociis is an aid to construction useful for
determining what Congress meant, though not a doctrine of law.5
The Latin phrase means that “the meaning of doubtful words
may be determined by reference to associated words and
phrases.”6 Because “educational institution” is among the “as-
sociated words and phrases,” it cannot be elided when using
associated words and phrases to figure out what the ones at
issue mean. And once considered, the phrase “educational
institution” compels the conclusion that Congress did not
limit the exemption to churches and synonyms for churches.
Judge Berzon’s interpretation fails because, first, as
explained above, we cannot determine the meaning by refer-
ence to associated words and phrases without considering all
the associated words and phrases, and one of them, “educa-
tional institution,” is not a synonym for “church,” nor do
church schools function merely as places of religious study or
disseminators of religious doctrine. Typically most of the
courses are secular. Teaching children the multiplication
5
See Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.
1992).
6
2A N. Singer & J. Singer, Sutherland Statutory Construction § 47:16
(7th ed. 2007); see also United States v. Williams, 553 U.S. 285, 294
(2008); United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003).
12562 SPENCER v. WORLD VISION
tables and Silas Marner is not religious study or dissemina-
tion of religious doctrine, yet that sort of thing is how most
of the day is spent at parochial schools. Nor does “religious
association” mean “church, temple, synagogue, or mosque,”
as Judge Berzon would have it. Had Congress meant to say
that, it would have. Fair application of noscitur a sociis
requires us to find something in common among all the asso-
ciated words and phrases, not just some of them.
Second, Judge Berzon’s approach ignores the additional
canon, that all the words of the statute must be accorded some
meaning, rather than treating some as superfluous. “It is an
elementary rule of construction that effect must be given, if
possible, to every word, clause and sentence of a statute.”7
Indeed, Judge Berzon’s construction would require us to
ignore an entire statutory definition: “The term ‘religion’
includes all aspects of religious observance and practice,”8 a
definition irreconcilable with her proposition that it means
basically what people do in church, worship, study, and dis-
seminate religious doctrine to the congregation. Judge Berzon
suggests that although the statute provides a definition of the
noun form of the word “religion,” that definition has no bear-
ing on the meaning of the adjective “religious” in the same
statute.
Third, Judge Berzon’s narrowing of the exemption prevents
the exemption from accomplishing its purpose, protecting the
free exercise of religion. Since the earliest times in the Judeo-
Christian tradition, religion has meant more than prayer,9 and
has even denigrated prayer where it is not connected with
7
2A N. Singer & J. Singer, Sutherland Statutory Construction § 46:6
(7th ed. 2007) (quotation marks and citations omitted); see also Exxon
Corp. v. Hunt, 475 U.S. 355, 369 (1986) (rejecting the reading of a phrase
that made a latter phrase surplusage); United States v. Wenner, 351 F.3d
969, 975 (9th Cir. 2003).
8
42 U.S.C. § 2000e(j) (emphasis added).
9
See Matthew 5:16.
SPENCER v. WORLD VISION 12563
goodness toward one’s fellow man.10 Under Judge Berzon’s
reading, if several Protestant churches of various denomina-
tions organize an association to employ missionaries in the
field, they can limit their hiring to Protestants only if the mis-
sionary work is limited to preaching. If the Protestant mis-
sionaries proselytize by example, showing rather than telling
how to be a good Christian, then the Protestants have to hire
atheists, Jews, and Catholics without discrimination to do
their Protestant missionary work. Sometimes religious activity
consists of being a “City upon a Hill.” She would have the
Protestant group avoid Title VII by claiming religion as a
bona fide occupational requirement, but it is hard to see why
it would be, since the activity is outside Judge Berzon’s view
of religion.
Judge Berzon’s approach does not even accomplish the nar-
rowing she evidently seeks, because it is not so easy to say
just what “worship” is, what type of study qualifies as “reli-
gious study,” or what counts as “dissemination of religious
doctrine.” Is the Catholic school still religious, in Judge Ber-
zon’s view, if the children learn reading, writing, and arithme-
tic? Was Father Damien’s work caring for the lepers on
Molokai religious?
Judge Berzon’s narrow list of acceptable religious practices
excludes numerous religious traditions. It is not clear whether
she would accept as a religious association a traditional Inner
Light Quaker “meeting” in a “meeting house,” where “con-
gregants worship in silence or speak only when they feel
inwardly led to do so.”11 What about a Santeria shrine where
chickens are sacrificed?12 Is animal sacrifice worship? It was
10
See Isaiah 1:15-17; Isaiah 58:3-8.
11
Isabel B. Terry, A Quaker Meeting and Mainstream Religion in a
North Carolina Community, in DIVERSITIES OF GIFTS: FIELD STUDIES IN
SOUTHERN RELIGION 23, 23, 26 (Ruel W. Tyson, James L. Peacock & Dan-
iel W. Patterson, eds., 1988).
12
See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S.
520, 524-25 (1993).
12564 SPENCER v. WORLD VISION
good enough for the Supreme Court in Lukumi, but appears
not to fall within Judge Berzon’s definition.
If only churches and the like are within the exemption, as
she contends, the religious exemption would be limited to
employees in the buildings where people sit, stand, and kneel
as they recite traditional prayers and sing traditional hymns.
Judge Berzon’s interpretation of the exemption would better
fit the mining equipment manufacturer in EEOC v. Townley
Engineering & Manufacturing Co.,13 than an “Inner Light”
tradition Quaker meeting, since the manufacturing plant held
mandatory devotional services every week where everyone
recited prayers.
As the government brief points out, under Judge Berzon’s
view, Mother Theresa’s mission, performing humanitarian
work, would be classed as secular, so if she were performing
it in America, she would have to employ people who rejected
the underlying religious premise of her enterprise hoping that
despite their philosophical rejection, they would perform it
faithfully to her ideals. On what principle can Judge Berzon
concede, as she does, that Mother Theresa’s work was reli-
gious, yet contend, as she does, that her organization could be
religious only if it were limited to “worship, religious study,
or the dissemination of religious doctrine.” Since it was not,
perhaps under Judge Berzon’s view it would be appropriate to
launch a class action against Mother Theresa’s organization
and similar ones if they engaged in religious discrimination in
hiring or because of the severe and pervasive pressure of the
religiosity of the workplace. Judge Berzon notes that “the
Falun Gong, the Quakers, or Mother Theresa’s mission should
not be classed as secular solely because certain of their activi-
ties occur outside of a physical church.”14 Her adverb “solely”
may imply that they should be classed as secular for that rea-
son combined with others.
13
859 F.2d 610, 612 (9th Cir. 1988).
14
Berzon dissent at 12580 n.5.
SPENCER v. WORLD VISION 12565
The core of Judge Berzon’s dissent is the idea that perfor-
mance of activities that are often performed in a secular con-
text cannot be religious. That is mistaken. When the Pope
washes feet on the Thursday before Easter, that is not secular
hygiene, and the Pope is not a pedicurist. Confession to a
priest and confession to a psychiatrist may have the same con-
tent, but that does not make confessing to a priest secular. Fit-
ness clubs and Falun Gong both perform calisthenics.
Religious missionaries and Peace Corps volunteers both per-
form humanitarian work, but only the latter is secular.
Humanitarian work may be a secular or a religious activity,
depending on motivation and meaning among those who per-
form it.
Judge O’Scannlain’s test errs because of its focus on non-
profit corporate organization. Some people worship in assem-
blies in each others’ homes or borrowed conference rooms,
with no corporate apparatus. Particularly when the congrega-
tions are small, such as a few Jews, Quakers, or Unitarians in
a small town, they may not incorporate, and they may on
some occasion employ a number of students to run a religious
summer camp to instill their religion in their children, yet the
exemption under Judge O’Scannlain’s definition would not
enable them to limit hiring to coreligionists. Absence of cor-
porate papers and nonprofit status would defeat the exemption
under his test, if nonprofit corporate and tax status is a sine
qua non.
The narrowness problem may be repairable by a tweak in
the test, but the overbreadth problem is not. Judge
O’Scannlain’s test is too broad because it would allow non-
profit institutions with church affiliations to use their affilia-
tions as a cover for religious discrimination in secular
employment. Judge Berzon is correct that under Judge
O’Scannlain’s test, the mining equipment company in Town-
ley could discriminate by religion simply by incorporating
itself as a nonprofit and getting 501(c)(3) status.
12566 SPENCER v. WORLD VISION
There is not much congruence between nonprofit status and
the free exercise of religion, or any eleemosynary purpose.
Any enterprise can be operated as a 501(c)(3) nonprofit if its
stated purpose is “religious, charitable, scientific, testing for
public safety, literary, or educational purposes, or to foster
national or international amateur sports competition (but only
if no part of its activities involve the provision of athletic
facilities or equipment), or for the prevention of cruelty to
children or animals.”15 The Townley Manufacturing Company
could, if it chose, be organized for a self-identified religious
purpose as a nonprofit as evidenced by its articles of incorpo-
ration, engage in its regular religious devotions, and hold
itself out as a Christian mining equipment manufacturer, satis-
fying Judge O’Scannlain’s test. Nonprofit status would
require that it pay out the surplus of revenue over other
expenses as salaries instead of as dividends, but most closely
held corporations do that anyway. Nonprofit status affects
corporate governance, not eleemosynary activities. We law-
yers organize corporations as nonprofits when a tax exemp-
tion is sought, or so that board members can pick their
successors and avoid the need to repurchase stock from sur-
viving spouses after the deaths of the principals. “For profit”
and “nonprofit” have nothing to do with making money. As
15
26 U.S.C. § 501(c)(3) (“Corporations, and any community chest, fund,
or foundation, organized and operated exclusively for religious, charitable,
scientific, testing for public safety, literary, or educational purposes, or to
foster national or international amateur sports competition (but only if no
part of its activities involve the provision of athletic facilities or equip-
ment), or for the prevention of cruelty to children or animals, no part of
the net earnings of which inures to the benefit of any private shareholder
or individual, no substantial part of the activities of which is carrying on
propaganda, or otherwise attempting, to influence legislation (except as
otherwise provided in subsection (h)), and which does not participate in,
or intervene in (including the publishing or distributing of statements), any
political campaign on behalf of (or in opposition to) any candidate for
public office.”).
SPENCER v. WORLD VISION 12567
the CEO of National Geographic said, “[n]onprofit means
non-taxable—it doesn’t mean you don’t make a profit.”16
For example, physicians may organize a hospital as a non-
profit affiliated with a church, stating a religious purpose of
healing the sick in its articles and bylaws. The hospital may
then charge full market prices to patients and their insurers,
and pay the physicians who organized it and their employees
around $50,000 a year for residents, $200,000 a year for
employed physicians working a week on, week off, and
$400,000 a year for radiologists. It can defend its stated reli-
gious purpose with the true argument that whatever church it
affiliates with promotes healing the sick as a religious duty.
Yet the nonprofit hospital differs from a for-profit hospital
only in that the board does not have to concern itself with
pesky stockholders and does not have to pay income taxes on
the excess of revenues over expenses and depreciation. The
free exercise concern protected by the exemption does not
suggest that the hospital should be allowed to discriminate by
religion in hiring, since physicians, nurses, and other employ-
ees can perform their tasks equally well regardless of their
religious beliefs.
I offer this hypothetical not only because it illustrates the
overbreadth of Judge O’Scannlain’s test, but also because
hospitals do indeed have a history of religious discrimination.
Hospitals used to avoid hiring Jews for residencies, a major
reason why Jewish hospitals were created in the United States.17
16
Chantelle Wallace, News Release, National Geographic CEO Says
Nonprofit’s Mission is Bringing the World to Readers, University of Texas
at Austin, McCombs School of Business, April 11, 2007, available at
http://www.mccombs.utexas.edu/news/pressreleases/fahey07.asp (last vis-
ited July 27, 2010).
17
Arthur Hertzberg, THE JEWS IN AMERICA 234 (2d ed. 1997); Laura E.
Weber, “Gentiles Preferred”: Minneapolis Jews and Employment, 1920-
1950, 56 Minn. Hist. 166, 170 (1991); Robert Katz, Continuing Their Mis-
sion, Jewish Hospitals Reinvest in Philanthropy, Forward, June 27, 2008,
available at http://www.forward.com/articles/13591/; Dr. Barron H. Ler-
ner, In a Time of Quotas, a Quiet Pose of Defiance, N.Y. Times, May 26,
2009, at D5.
12568 SPENCER v. WORLD VISION
That is not likely to occur now, but if the exemption applies,
then hiring committees could discriminate according to what-
ever personal prejudices hiring physicians might have. The
purpose of religious discrimination might not be to advance
a religious objective in the practice of medicine, but rather to
indulge bigotry against Jews, Catholics, Mormons, Seventh
Day Adventists, fundamentalist Protestants, or others. There
is no reason to extend the exemption to such an institution.
We can arrive at a usable modification of Judge
O’Scannlain’s test by considering the difference between the
hypothetical hospital and the Salvation Army. They both ren-
der services to people of different or no religions. Both are
organized as nonprofits with express religious purposes. Both
get charitable contributions. The Salvation Army really is
intended to perform a Christian mission for religious pur-
poses, and the hospital is not, having as its real objective the
performance of medical services to serve the body and not the
soul. But it is not practical for courts to look into the hearts
of the Salvation Army executives and the hospital executives
and make a judgment about their real purposes. There is one
big objectively ascertainable difference: how they charge. The
hospital gets money by exchanging valuable services for their
market value in cash. The Salvation Army gives its homeless
shelter and soup kitchen services away, or charges nominal
fees, perhaps eight dollars a night for a bed worth fifty dollars
a night.
Likewise, World Vision ministers to people to serve a reli-
gious purpose. Many churches are too small to do this them-
selves, and have to group together with other small,
impecunious churches to do their mission and service work,
so World Vision is an association but not a church. The evi-
dence makes it quite clear that the idea is not merely foreign
aid in poor countries, but what amounts to missionary work
by making its service providers exemplars of Christian char-
ity. World Vision is like the hypothetical missionary enter-
prise of a group of Protestant churches of various
SPENCER v. WORLD VISION 12569
denominations described earlier, except that they show by
example, rather than by express proselytizing, that theirs is a
good religion. No doubt many of its beneficiaries will become
Christians, just as Sokka Gakkai assisted by church groups in
their transitions to American life sometimes become firm
adherents of the churches that have helped them.18 A mission-
ary does not necessarily have to make people sing hymns for
their supper to persuade his beneficiaries of the goodness of
the tenets of his religion.
And unlike the hypothetical hospital, World Vision does
not charge its beneficiaries the market value of its services. So
far as we can tell from the record, it does not charge them at
all. Looking at how an institution charges offers an objective
test for sorting out which institutions are designed to
exchange goods or services for money, from those designed
to give them away except perhaps for nominal charges in
order to serve a religious objective. This objective measure
relates closely to the purpose of the exemption. We can tell
much about an institution’s purpose by looking at the objec-
tive evidence of how it charges. A religious purpose may be
a motive, or money may be a motive, for work that serves oth-
ers. If money is not available as an incentive, that is strong
evidence, in the purportedly religious institution, that exercise
of religion is the objective. If satisfaction of a religious pur-
pose is insufficient to motivate the performance, then the per-
formance may be consistent with religion but not motivated
by it. There is nothing wrong with money as an incentive, but
its presence or absence is strong evidence of what the incen-
tive is.19
18
See Yutaka Yamada, Like My Husband’s Shadow: The Religious
Experience of a Japanese Warbride in North Carolina, in DIVERSITIES OF
GIFTS: FIELD STUDIES IN SOUTHERN RELIGION 177, 177-78 (Ruel W. Tyson,
James L. Peacock & Daniel W. Patterson, eds., 1988).
19
Judge Berzon seems to suggest that if Townley had organized a sepa-
rate religious entity that did not sell mining equipment, just engaged in
unquestionably religious activity, it would be wrong to allow the Townley
12570 SPENCER v. WORLD VISION
This discussion does not cover educational institutions, and
religious schools may charge market rates as tuition. But they
have their own phrase in the exemption, “educational institu-
tion,” so they do not have to fall within the harder to define
phrases in the exemption for “religious corporation, associa-
tion, educational institution, or society.” The inclusion of edu-
cational institutions suggests a more sensible noscitur a sociis
reading of the exemption for “religious corporation, associa-
tion, educational institution, or society.” What they all have
in common is that they are means by which people engage in
the free exercise of their religions. Many religions have as
central requirements that their adherents teach the religions to
their children.20 Religious schools are how they do it, but they
are often too expensive to operate supported out of charitable
contributions, and need substantial tuitions. For the others, to
determine whether the associations are religious or not for
purposes of the exemption, what they charge for their services
is an appropriate and usable test. For that matter, even if some
educational institutions might otherwise be viewed as too sec-
ular in what they actually teach to qualify for the exemption,
they would nevertheless be allowed by Congress to discrimi-
nate in hiring and employment by the alternative provision for
schools “in whole or substantial part, owned, supported, con-
trolled, or managed by a particular religion or by a particular
religious corporation, association, or society.”21
Accordingly, I would reformulate Judge O’Scannlain’s test
as this: To determine whether an entity is a “religious corpo-
Mining Company Church to restrict hiring to coreligionists, because it
might “have a business impact, by reflecting positively on the profit-
making company’s corporate image.” By that reasoning, if a Jewish con-
gregation has a plaque in the temple honoring a business donor for its con-
tribution, then the congregation cannot discriminate in its hiring because
the congregation reflects positively on the donor.
20
See, e.g., Deuteronomy 6:6-7.
21
42 U.S.C. § 2000e-2(e)(2).
SPENCER v. WORLD VISION 12571
ration, association, or society,” determine whether it is orga-
nized for a religious purpose, is engaged primarily in carrying
out that religious purpose, holds itself out to the public as an
entity for carrying out that religious purpose, and does not
engage primarily or substantially in the exchange of goods or
services for money beyond nominal amounts.
Under that test, World Vision is a religious corporation, so
I would affirm.
BERZON, Circuit Judge, dissenting:
World Vision Inc. maintains that it is a “religious corpora-
tion, association, educational institution, or society” and so
not covered by Title VII’s prohibition against hiring or dis-
charging employees on the basis of religion. See 42 U.S.C.
§ 2000e-1(a). If World Vision is right, then it may refuse to
hire, and may fire, on the basis of their religious beliefs
individuals—like the plaintiffs here—whose jobs have no
religious element at all.
Judges O’Scannlain and Kleinfeld agree that World Vision
qualifies for the exemption and so can insist that all of its
employees share the organization’s belief that “Jesus Christ is
God and a member of the Trinity.” My colleagues arrive at
this conclusion by fashioning brand new tests for applying the
Title VII religious organization exemption.1 Judge
O’Scannlain would hold any nonprofit organization can claim
the exemption if the organization mentions a “self-identified
religious purpose” in its foundational documents; performs
1
I refer to § 2000e-1(a) as the “religious organization exemption.” It is
the broadest of several Title VII provisions, discussed below, that carve
out religious entities for special treatment. Only § 2000e-1(a) permits reli-
gious organizations to hire and fire on the basis of religion without regard
to the employee’s function within the organization.
12572 SPENCER v. WORLD VISION
activities in furtherance of that avowed religious objective;
and “holds itself out to the public” as religious. Opinion of
O’Scannlain, J., at 12545. Judge Kleinfeld agrees these three
factors are necessary, and would also require that the entity
“not engage primarily or substantially in the exchange of
goods or services for money beyond nominal amounts.” Con-
currence of Kleinfeld, J., at 12571.
Either test would allow a broad range of organizations to
refuse to hire and to fire any employee on the basis of reli-
gious belief, including organizations that lack any ties to orga-
nized religion and perform daily operations entirely secular in
nature. As a result, even Judge Kleinfeld’s more restrictive
test would transform what has always been a narrow exemp-
tion from the general prohibition on religious discrimination
into an exceedingly broad one, with no obvious stopping
point. I explain below that these expansive standards for
invoking the exemption contravene our precedent and the
clear language of the statute while fostering the very problem
of religious-based inquiries it seeks to cure.
I.
The majority’s characterization of defendant World
Vision’s focus and activities is fully accurate. I pause here to
emphasize several facts that become significant in the discus-
sion that follows.
According to its website, World Vision is “a Christian
humanitarian organization dedicated to working with chil-
dren, families and their communities worldwide to reach their
full potential by tackling the causes of poverty and injustice.”
Four of World Vision’s six core “ministries” are described in
purely secular terms: caring for children by providing clean
water, health care, food and clothing; building self-reliance
through technological innovation and training; emergency
relief; and educating Americans about global poverty.
Although World Vision lists “evangelism” as a ministry, it
SPENCER v. WORLD VISION 12573
“never proselytize[s].” Instead, it “integrates Christian activi-
ties” into its outreach work by working with local churches
and “arrang[ing] for interested children to attend events such
as Bible camps or clubs so they can learn more about the
Christian faith.” World Vision does not require or urge aid
recipients to participate in religious worship or instruction,
although it does “offer those opportunities.”
World Vision also does not ordain ministers, and it is not
affiliated with any particular church. Partnering with a wide
variety of churches, including Methodist, Catholic, Episcopal,
Lutheran, and independent sects, World Vision does not
require representatives of those churches involved in World
Vision activities to sign any document affirming their com-
mitment to the Apostles’ Creed or World Vision’s Statement
of Faith.
Finally, the plaintiffs performed completely secular job
duties. Spencer worked in a department that provided facili-
ties upkeep; Youngberg worked as a purchaser, warehouse
technician, and scheduler; and Hulse was an administrative
assistant. World Vision fired them because, although they
continued to be practicing Christians, they no longer believed
in the Trinity, the idea that “the father, son and holy ghost are
one and the same.”
II.
Two earlier Ninth Circuit cases provide guidance—or
should, the majority’s determination to push them aside
notwithstanding—in assessing whether World Vision falls
within the exemption’s intended scope.
The first, EEOC v. Townley Engineering & Manufacturing
Company, 859 F.2d 610 (9th Cir. 1988) considered whether
the exemption covered a for-profit company founded as a
“Christian, faith-operated business” and producing mining
equipment. Id. at 611-12 (quotations omitted). Addressing
12574 SPENCER v. WORLD VISION
that question, we began from the proposition that “Congress’s
conception of the scope of [the exemption] was not a broad
one. All assumed that only those institutions with extremely
close ties to organized religion would be covered. Churches,
and entities similar to churches, were the paradigm.” Id. at
618. To determine whether an organization falls within the
exemption, we said, “[a]ll significant religious and secular
characteristics must be weighed to determine whether the cor-
poration’s purpose and character are primarily religious.” Id.
In Townley, the employer enclosed Gospel tracts in outgo-
ing mail; printed Bible verses on invoices and purchase
orders; donated money to churches and other religious enti-
ties; and conducted weekly prayer meetings for employees.
Nonetheless, Townley was held primarily secular and so not
a “religious corporation,” because it was for-profit and unaf-
filiated with any church, its articles of incorporation included
no religious purpose, and it produced a secular product. Id. at
619.
The second seminal Title VII religious exemption case in
this court, EEOC v. Kamehameha Schools/Bishop Estate, 990
F.2d 458 (9th Cir. 1993), involved a group of related schools
founded pursuant to a bequest that required that all teachers
be Protestants. To determine whether the Schools came within
the exemption, we considered their purpose, faculty, student
body, student activities and curriculum, as well as the fact that
the Schools were unaffiliated with any church, and concluded
that “the religious characteristics of the Schools consist of
minimal, largely comparative religious studies, scheduled
prayers and services, quotations of Bible verses . . . and the
employment of nominally Protestant teachers.” Id. at 463. The
Schools, in sum, were “an essentially secular institution oper-
ating within an historical tradition that includes Protestant-
ism” and, as such, ineligible for the exemption. Id. at 463-64.
Taken together, Townley and Kamehameha Schools direct
us to consider whether an organization may avail itself of
SPENCER v. WORLD VISION 12575
§ 2000e-1’s exemption by applying two broad, interwoven
principles. First, “[a]ll significant religious and secular char-
acteristics must be weighed to determine whether the corpora-
tion’s purpose and character are primarily religious.”
Townley, 859 F.2d at 618. Second, “[w]e construe the statu-
tory exemption[ ] narrowly,” with the understanding that
“only those institutions with extremely close ties to organized
religion [are] covered.” Kamehameha Sch., 990 F.2d at 460.
The tests advanced by Judges O’Scannlain and Kleinfeld
depart from both principles, as I explain below.
III.
The first principle established by Townley and Kameha-
meha Schools is one of methodology—that an understanding
of whether an organization is “primarily religious” requires an
assessment of observable religious and secular aspects of an
organization’s purposes and activities—that is, a fact-based,
functional inquiry. Permitting self-definition by purportedly
religious organizations, as Judges O’Scannlain and Kleinfeld
would allow, cannot be reconciled with this principle.
The majority acknowledges that Kamehameha Schools and
Townley focused on the observable religious or secular nature
of the organizations’ attributes, but justifies departing from
this approach by asserting that those cases “contain[ ] no indi-
cation that the religious or secular nature of any particular
activity or purpose was in dispute.” Maj. Op. at 12543. This
portrayal of our precedents is wrong. Close inspection of
Kamehameha Schools, in particular, reveals that the charac-
terization of particular attributes as religious or secular was,
in fact, hotly contested by the parties.
Kamehameha Schools held the Schools’ purpose secular
despite the Schools’ insistence that “the purpose of the
Schools is primarily religious.” Brief of Defendant-Appellee
at 25, Kamehameha Sch., 990 F.2d. 458 (No. 91-16586). The
Schools argued that they “ha[d] steadfastly remained primar-
12576 SPENCER v. WORLD VISION
ily religious in purpose . . . for over a century. . . . it is [our]
purpose not only to provide education, but to provide such
education in a Protestant Christian atmosphere which per-
vades every aspect of campus life.” Id. at 20. As evidence of
its religious purpose, the Schools cited the existence of the
Bishop Memorial Church as “an integral part” of school life;
daily prayer in classrooms; the presence of an ordained minis-
ter as chaplain; and a religious coursework requirement. Id. at
21. Our independent review of documents created and distrib-
uted by the Schools, however, led us to the conclusion that the
Schools’ “mission” was “to help native Hawaiians ‘participate
in contemporary society for a rewarding and productive life’
by providing a solid education . . . and the moral guidance
necessary to help students ‘define a system of values.’ ”
Kamehameha Sch., 990 F.2d at 465 (brackets omitted). We
rejected the Schools’ claim that their central purpose was reli-
gious, observing that “the purpose and emphasis of the
Schools have shifted over the years from providing religious
instruction to equipping students with ethical principles that
will enable them to make their own moral judgments.” Id. at
462.
The religious nature of the Schools’ curriculum was also in
dispute. The Schools pointed to their curriculum as evidence
that the Schools were “primarily religious,” emphasizing that
Bible stories were taught by “Christian education teachers”
starting in kindergarten and by an ordained minister starting
in seventh grade, and that completion of the “Ekalesia” reli-
gious instruction program was a graduation requirement. See
Brief of Defendant-Appellee at 26, 29. We found that despite
these requirements, secular instruction outweighed the reli-
gious elements of the curriculum, noting that the Schools
“offer a complete array of courses in math, science, English,
languages, and social studies, all of which are taught from a
secular perspective. No effort is made to instruct students in
Protestant doctrine.” Kamehameha Sch., 990 F.2d at 463.
Characterizing the curriculum as containing “minimal, largely
comparative religious studies” and noting that “[r]eferences to
SPENCER v. WORLD VISION 12577
Bible verses, comparative religious education, and even
prayers and services are common at private schools and can-
not suffice to exempt such schools from § 2000e-1,” we
rejected the Schools’ contention that they were a religious
organization for purposes of Title VII and so allowed to hire
and fire employees based on religious belief.2 Id.
The tests advanced by Judges O’Scannlain and Kleinfeld
cannot be squared with our precedent on the grounds that in
Kamehameha Schools the “characterizations [of the organiza-
tions’ attributes] were not our own.” Maj. Op. at 12543. The
Schools had not conceded that their purpose had shifted from
religious to secular, nor that the religious components of the
curriculum were “minimal.” Rather, those conclusions were
derived from our careful analysis of observable religious and
secular attributes. Our precedent requires the same method
here.
The majority correctly observes that “our case law does not
compel us to march down a checklist of considerations” in
assessing whether an organization is “primarily religious,” nor
does it compel “rigid adherence” to the factors considered by
Townley or Kamehameha Schools. Maj. Op. at 12536. The
relevant characteristics will depend on the type of institution
invoking the exemption.3 The variable nature of the inquiry,
2
The majority characterizes this inquiry as assessing the “quantum” of
“admittedly religious activity at the school.” Maj. Op. 12543 n.11. The
observation that the Schools’ religious studies program was “largely com-
parative” and involved no instruction in Protestant doctrine, however,
entails an assessment of the nature—the quality—of the allegedly reli-
gious activity, not merely its quantity.
3
The district court’s reliance on LeBoon v. Lancaster Jewish Community
Center Association, 503 F.3d 217 (3d Cir. 2007), was error not because
LeBoon used slightly different factors to assess whether the organization
was primarily religious but because the Third Circuit’s refusal to read the
statutory exemption as narrowly focused on churches and entities similar
to churches, see id. at 231, directly conflicts with our precedents, as I
explain infra in Part III.
12578 SPENCER v. WORLD VISION
however, does not relieve us of our obligation to assess “[a]ll
significant religious and secular characteristics.” Kameha-
meha Sch., 990 F.2d at 460. As it is clear that Kamehameha
Schools, which relied upon Townley, cannot be distinguished
on the grounds that the characterization of particular attributes
as secular or religious was undisputed, we are compelled to
follow the mode of analysis prescribed in our two preceden-
tial cases. See, e.g., United States v. Hernandez-Castro, 473
F.3d 1004, 1008 (9th Cir. 2007).
IV.
The second principle firmly established by Townley and
Kamehameha Schools is a substantive one—that Congress
intended the § 2000e-1(a) exemption to apply narrowly, cov-
ering “only those institutions with extremely close ties to
organized religion . . . Churches, and entities similar to
churches, were the paradigm.” Kamehameha Sch., 990 F.2d at
460 (quoting Townley, 859 F.2d at 618).4 This narrow reading
of the exemption to cover entities that, like churches, exist for
the purpose of prayer and religious instruction is required by
the plain meaning of the statutory terms and the structure of
the statute. When “the statutory language is clear and consis-
tent with the statutory scheme at issue, the plain language of
4
The majority discounts the language in Townley limiting the exemption
to churches and church-like entities because it occurred within a discus-
sion of the provision’s legislative history—a discussion, as we later
observed in Kamehameha Schools, 990 F.2d at 460-61 n.5, upon which
our holding in Townley did not depend. Yet, Townley did not rely solely
on legislative history to conclude that the exemption was narrowly appli-
cable to churches and related entities, but also upon cases interpreting the
statute, which “demonstrate that the central function of [the provision] has
been to exempt churches, synagogues, and the like, and organizations
closely affiliated with those entities.” Townley, 859 F.2d at 618. More-
over, as I discuss below, the legislative history confirms that Congress
used the terms “religious corporation, association, educational institution,
or society” as they were commonly understood rather than in some spe-
cialized sense unique to Title VII and is useful to that degree.
SPENCER v. WORLD VISION 12579
the statute is conclusive and the judicial inquiry is at an end.”
Moski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007).
The tests advanced by Judges O’Scannlain and Kleinfeld
would permit a broad variety of religiously influenced organi-
zations to employ only individuals with prescribed religious
beliefs in jobs with no religious function. Whether or not that
would be a superior rule, it is one impossible to reconcile with
the clear text of the statute.
1.
Title VII’s religious organization exemption provides:
This subchapter shall not apply . . . to a religious cor-
poration, association, educational institution, or soci-
ety with respect to the employment of individuals of
a particular religion to perform work connected with
the carrying on by such corporation, association,
educational institution, or society of its activities.
42 U.S.C. § 2000e-1(a). As I develop below, at common law
and in contemporary common legal usage, “religious society”
meant a community organized for worship; “religious corpo-
ration” referred to a religious society that incorporated to
achieve a form that was legally cognizable under civil law.
See, e.g., Jones v. Wolf, 443 U.S. 595 (1979) (using “church,”
“religious society,” and “religious association” interchange-
ably). “Where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word.” Evans v. United
States, 504 U.S. 255, 259 (1992) (quotations and brackets
omitted). We must therefore assume that Congress used the
terms “religious corporation, association . . . or society” as
they were commonly understood: to describe a church or
12580 SPENCER v. WORLD VISION
other group organized for worship, religious study, or the dis-
semination of religious doctrine.5
When Congress enacted the religious organization exemp-
tion, the term “religious society” had long been used in legal
parlance to apply to organizations formed for the central pur-
pose of communal worship and religious study. See, e.g.,
Mordecai F. Ham Evangelistic Ass’n v. Matthews, 189 S.W.
2d 524, 527 (Ky. 1945) (“The term ‘religious society’ is an
old one . . . it has had a well-understood meaning, being used
interchangeably with ‘church’ or some group organized and
maintained for the support of public worship.”); U.S. Nat’l
Bank v. Poor Hand Maids of Jesus Christ, 135 N.W. 121, 122
(Wis. 1912) (“The term ‘religious society’ . . . has often been
construed by courts. . . . It is a body of persons who usually
meet in some stated place for worship of God and religious
instruction.”); State v. Stuth, 39 P. 665, 666 (Wash. 1895)
(“The words ‘religious society’ . . . have their ordinary mean-
ing, and would include all religious societies or congregations
met for public worship.”). This usage has remained
unchanged since enactment of Title VII’s religious exemp-
tion. See, e.g., Parshall Christian Order v. Bd. of Review,
Marion County, 315 N.W.2d 798, 802 (Iowa 1982) (“A ‘reli-
gious society’ has been defined to be ‘a voluntary association
of individuals . . . united for the purpose of having a common
5
Contrary to the majority’s assertion, Maj. Op. at 12534, there is an
obvious reason why Congress did not use the word “church” in enacting
the religious corporation exemption: It describes a place where Christians
pray. See MERRIAM-WEBSTER COLLEGIATE DICTIONARY 205 (10th ed. 1993)
(defining “church” as “a building for public and esp[ecially] Christian
worship”). Jews, Muslims, Buddhists, and adherents of many other reli-
gions do not worship at churches, but they do form societies for the pur-
pose of prayer and religious instruction. Moreover, “church” commonly
refers to a physical entity, as the definition above indicates, while Con-
gress sought to exempt groups organized for worship or religious study.
Accordingly, I agree with Judge Kleinfeld that organizations such as the
Falun Gong, the Quakers, or Mother Theresa’s mission should not be
classed as secular solely because certain of their activities occur outside
of a physical church. See Concurrence of Kleinfeld, J., at 12564.
SPENCER v. WORLD VISION 12581
place of worship and to provide a proper teacher to instruct
them in religious doctrines and duties.’ ” (citation omitted)).
While “religious association” does not appear to have a dis-
tinct meaning, the Supreme Court has deployed the term as a
synonym for “church.” See, e.g., Kedroff v. St. Nicholas
Cathedral of Russian Orthodox Church, 344 U.S. 94, 114
(1952) (noting the “[unquestioned] right to organize voluntary
religious associations to assist in the expression and dissemi-
nation of . . . religious doctrine” (quoting Watson v. Jones, 80
U.S. 679, 728-29 (1871))). Canons of statutory interpretation
also suggest that “association” must be interpreted to have a
similar meaning as “society” in this context. See United States
v. Alvarez-Gutierrez, 394 F.3d 1241, 1253 (9th Cir. 2005)
(“The traditional canon of construction, noscitur a sociis, dic-
tates that words grouped in a list should be given related
meaning.” (quotation omitted)).6
As with the terms “religious society” and “religious associ-
ation,” Congress must be presumed to have been aware of the
established legal meaning of the term “religious corporation.”
That term has consistently referred to the legally-recognized
form created by a religious society or association so that it
could assert property and other rights under civil law. In colo-
nial America, religious societies were able to incorporate only
upon receiving special charters from the Crown or colonial
legislature, rarely granted to any religious societies other than
the Church of England. R.H. TYLER, THE LAW OF RELIGIOUS
SOCIETIES 133, 135 (1866).7 Incorporation thus originally sym-
6
Because World Vision does not claim to be an “educational institu-
tion,” the common law meaning of that term is not directly relevant here.
Still, like religious societies and associations, religious educational institu-
tions are groups organized for worship, religious study, or the dissemina-
tion of religious doctrine. The term therefore falls neatly within the
noscitur a sociis canon of statutory construction.
7
The very existence of treatises on the law of religious corporations,
published long before Title VII’s enactment, demonstrates the pedigree
and settled meaning of the term.
12582 SPENCER v. WORLD VISION
bolized state sponsorship of religion. After the American Rev-
olution, consequently, religious societies were largely
unincorporated. See Turpin v. Locket, 6 Call 113 (Va. 1804)
(holding that, because the Church of England’s privileged
legal status had been eliminated by the revolution, “[t]hat
church, formerly paramount and triumphant, has now taken its
just and equal station with other religious societies,” and
therefore its religious successor, the Episcopalian Church, had
no claim to its former holdings).
Without a corporate existence it was impossible for
churches to hold property. The Virginia courts, for example,
refused to let the Catholic Church of Richmond take posses-
sion of property bequeathed it by a donor because the Church
lacked a fixed identity under the law. See Gallego’s Ex’rs v.
Att’y Gen., 30 Va. 450 (1832) (“[A]s the society or congrega-
tion is not incorporated . . . who are to be regarded as the ben-
eficiaries?”). Churches therefore sought corporate status, to
assure “the institutional identity that was provided by internal
governance and the assurance of immortality.” Liam Séamus
O’Melinn, Neither Contract nor Concession: The Public Per-
sonality of the Corporation, 74 GEO. WASH. L. REV. 201, 223
(2006); see, e.g., Kedroff, 344 U.S. at 128 (Jackson, J., dis-
senting) (“[T]his denomination wanted the advantages of a
corporate charter for its Cathedral, to obtain immunity from
personal liability or other benefits.”); Baltimore & P.R. Co. v.
Fifth Baptist Church, 108 U.S. 317, 330 (1883) (“[T]he Fifth
Baptist Church[ ] was incorporated that it might hold and use
an edifice, erected by it, as a place of public worship for its
members . . .”). States responded by passing statutes permit-
ting religious societies to incorporate. See, e.g., MCKINNEY’S
RELIGIOUS CORPORATIONS § 4 (permitting “property of an unin-
corporated church, or . . . religious society, body, association
or congregation” to become the property of the corporation
upon incorporation); 13 Maine Rev. Stat. § 2861 (establishing
a procedure for any group “desirous of becoming an incorpo-
rated parish or religious society”); N.H. Rev. Stat. § 306:4
(“[T]rustees, deacons, church wardens or other similar offi-
SPENCER v. WORLD VISION 12583
cers of churches or religious societies . . . shall be deemed
bodies corporate . . .”); Mass. Gen. Laws 67 § 23 (establishing
a process by which those “who desire to form a religious soci-
ety . . . shall become a corporation”); Conn. Gen. Stat. § 33-
264d (“Any religious society may become a religious corpora-
tion . . . .”).
The term “religious corporation” thus had a clear and uni-
versal meaning at the time Congress enacted § 2000e-1(a) of
Title VII: It referred to the legally cognizable form of a reli-
gious society, which in turn was commonly understood to
mean a church or similar entity organized for the purpose of
worship. See BLACK’S LAW DICTIONARY 368 (8th ed. 2004)
(defining “religious corporation” as “a corporation created to
carry out some ecclesiastical or religious purpose”). Entities
consisting of coreligionists but organized around secular pur-
poses or activities were outside the term’s scope. See State v.
Hutterische Bruder Gemeinde, 191 N.W. 635, 643 (S.D.
1922) (holding that an organization whose principal purpose
was farming and only “lastly and secondarily” religion was
not a religious corporation); Franta v. Bohemian Roman
Catholic Cent. Union, 63 S.W. 1100, 1102 (Mo. 1901) (hold-
ing that a Catholic fraternal beneficiary society was “in no
sense a religious corporation. It is not formed to teach or
propagate the religious faith, but to cultivate the spirit of fra-
ternity among its members . . . .”).
In short, in delineating the statutory exemption Congress
chose words that, through a long common law and statutory
history, signified organizations that existed for the purpose of
worship and religious learning. Given that established under-
standing, the plain meaning of the language used conforms
with—indeed, dictates—the narrow scope for the exemption
recognized in Townley and Kamehameha Schools.8 Neither
8
Contrary to Judge Kleinfeld’s concurrence, the narrow scope of the
religious organization exemption accords with Title VII’s definition of
“religion” as including “all aspects of religious observance and practice.”
12584 SPENCER v. WORLD VISION
Judge O’Scannlain nor Judge Kleinfeld explains why this
Court should depart from the traditional presumption that
Congress intended these terms of art to retain their traditional
common law and statutory meanings.
2.
A structural analysis of Title VII as a whole supports this
conclusion. Section 2000e-1(a) is one of three exceptions
carved out of Title VII for the purpose of accommodating reli-
gious freedom. There is, in addition, a judicially-created
“ministerial” exception designed to address this concern.
When viewed in the context of the other exceptions, it
becomes clear that the exemption at issue here serves a pur-
pose unique to churches and other pervasively religious socie-
ties and is meant to be confined to such associations.
First, courts have carved out a broad “ministerial excep-
tion” to Title VII “in order to insulate the relationship
between a religious organization and its ministers from consti-
tutionally impermissible interference by the government.”
Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th
Cir. 2004) (quoting Bollard v. Cal. Province of the Soc’y of
Jesus, 196 F.3d 940, 945 (9th Cir. 1999)). The ministerial
exception doctrine holds that the federal constitution’s Estab-
lishment and Free Exercise Clauses require courts to “defer
without further inquiry” to “decision-making about who shall
be a minister of the Church,” even if the decision is based on
a classification, such as race or sex, otherwise proscribed by
See Concurrence of Kleinfeld, J., at 12562 (citing 42 U.S.C. § 2000e(j)).
This statutory definition applies to use of the term “religion” throughout
Title VII, including to the general prohibition against discrimination in
employment practices because of an individual’s religion. 42 U.S.C.
§ 2000e-2. This definition, however, sheds no light on the scope of the
exemption from the prohibition against religious discrimination. The cur-
rent dispute concerns the meaning of “religious corporation, association
. . . or society,” not the term “religion.”
SPENCER v. WORLD VISION 12585
Title VII. Id. at 958. The doctrine thus forbids judicial review
of the doctrinal reasons asserted for discriminating on a pro-
scribed basis with regard to ministers. See id. at 961.
Moreover, any organization may “hire and employ” on the
basis of religion where religion is a “bona fide occupational
qualification [BFOQ] reasonably necessary to the normal
operation of that particular business or enterprise.” 42 U.S.C.
§ 2000e-2(e)(1); see Kamehameha Sch., 990 F.2d at 465.9
Secular organizations may rely on the BFOQ exception. See
Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N.D. Tex.
1983), aff’d, 746 F.2d 810 (5th Cir. 1984) (holding that a heli-
copter company was entitled to require that all pilots flying
into Mecca convert to Islam because under Saudi Arabian law
non-Muslims were forbidden to enter Mecca on penalty of
death). If World Vision does not qualify for the 2000e-1
exemption, it may well have a strong argument that belief in
World Vision’s Statement of Faith or the Apostles’ Creed is
a BFOQ for employees directly involved in carrying out
World Vision’s religiously-motivated humanitarian mission
by offering humanitarian outreach and, where appropriate,
Christian ministry to poor families. See Pime v. Loyola Univ.
of Chi., 803 F.2d 351 (7th Cir. 1986) (holding that member-
ship in the Jesuit order was a BFOQ for filling tenure-track
professorships because maintaining an adequate Jesuit pres-
ence was important to the successful operation of a Jesuit-
affiliated university).
9
This subsection also contains a clause permitting educational institu-
tions affiliated with a particular religion, or teaching a curriculum directed
toward propagating a particular religion, to hire and employ on the basis
of religion. 42 U.S.C. § 2000e-2(e)(2). This exception overlaps with the
inclusion of “educational institution” in the exemption at § 2000e-1(a).
See Kamehameha Sch., 990 F.2d at 464 (concluding that the Schools were
not exempt under the religious curriculum exception). As World Vision
does not claim to be exempt as a religious educational institution, the
scope and impact of the possible redundancy regarding religious educa-
tional institutions is not relevant to our analysis.
12586 SPENCER v. WORLD VISION
The overall statutory scheme of Title VII makes clear that
the religion-based exceptions are narrowly tailored to achieve
distinct purposes. As any organization may, under the BFOQ
provision, base particular hiring decisions on religious affilia-
tion to the extent required by operational necessity, § 2000e-
1(a) serves the distinct purpose of permitting organizations
exclusively devoted to propagating religion to conduct all
their activities within a community composed wholly of core-
ligionists. For such entities, “[d]etermining that certain activi-
ties are in furtherance of an organization’s religious mission,
and that only those committed to that mission should conduct
them, is [ ] a means by which a religious community defines
itself.” Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 342
(1987) (Brennan, J., concurring). The language and overall
structure of Title VII indicate that Congress believed only
entities like churches, whose religious character is so perva-
sive that it defines their entire organizational mission and
daily activities, stand in need of this organization-wide
exemption.
Identifying the interaction of these exemptions responds to
Judge Kleinfeld’s concern that a Protestant religious associa-
tion might be required to hire atheists, Jews, or Catholics to
perform Protestant missionary work. Concurrence of Klein-
feld, J., at 12562-63. First, such a group may fit within
§ 2000e-1(a) if organized for the dissemination of religious
doctrine. Second, an association falling outside the narrow
confines of § 2000e-1(a) might still argue that religious affili-
ation is a BFOQ for employees performing missionary work.
Townley’s statement, reaffirmed in Kamehameha Schools,
that the exemption is limited to churches and similar entities
is thus entirely consistent with the commonly understood
meaning of the terms in the provision and the structure of the
statute as a whole. To stretch the exemption, as my colleagues
now do, to encompass entities organized around secular activ-
SPENCER v. WORLD VISION 12587
ities conducted with an assertedly religious motivation surely
violates Congress’s intent.
V.
My colleagues’ approach is not only at odds with our pre-
cedent and the plain meaning of the statute. The attempt to
escape from our precedent is driven by the misguided thesis
that any inquiry into the activities of an avowedly religious
organization is constitutionally suspect. Although the majority
would subvert our precedent and the plain meaning of the
statute in the name of a nonexistent constitutional problem,
these new tests fail to resolve the constitutional issue that
troubles my colleagues.
1.
Under the newly minted standards proffered by Judges
O’Scannlain and Kleinfeld, we must accept without inquiry
the parties’ own characterizations of particular institutional
attributes as either religious or secular, as any judicial analysis
of a purportedly religious organization’s activities or purpose
is “constitutionally troublesome.” Maj. Op. at 12538. The
majority invokes Amos for this proposition, but Amos is not
controlling in this case. All the parties in Amos agreed that the
employer, a nonprofit gymnasium wholly owned by the Mor-
mon Church, was entitled to the religious organization
exemption. Amos, 483 U.S. at 331 n.3. The issue of how to
assess which organizations are within the religious exemption
was thus not before the Court.10
10
Indeed, Justice Brennan’s repeated reference to “churches” demon-
strates that his solicitude for religious organizations’ right to define them-
selves by restricting their community to coreligionists was reserved for
churches and their subsidiaries. See, e.g., Amos, 483 U.S. at 342-43 (Bren-
nan, J., concurring) (“While a church may regard the conduct of certain
activities as integral to its mission, a court may disagree.”) (emphasis
added); see also id. at 342-45 (seven other references to “church” in Jus-
tice Brennan’s concurring opinion).
12588 SPENCER v. WORLD VISION
Instead, the question in Amos was whether Congress’s
expansion of the exemption to permit religious organizations
to discriminate with respect to non-religious jobs unconstitu-
tionally advanced religion in violation of the Establishment
Clause. Id. at 330. So, when the Supreme Court in Amos
stated that “it is a significant burden on a religious organiza-
tion to require it, on pain of substantial liability, to predict
which of its activities a secular court will consider religious,”
id. at 336, it was not demarcating the constitutional bounda-
ries of the judicial inquiry into whether an institution qualified
as religious. Moreover, the opinion for the Court expressly
assumed that the prior version of the exemption, which previ-
ously applied only to the religious activities of religious
employers, id. at 333 n.9, did not raise any constitutional free
exercise issue. Id. at 336. Amos held only that the broader,
amended version of the exemption satisfied the test of Lemon
v. Kurtzman, 403 U.S. 602 (1971), and so was not an estab-
lishment of religion. Noting that lessening government inter-
ference with religious organizations’ ability to conduct their
missions was a permissible governmental purpose under
Lemon, the Court held that, even assuming the earlier version
of the statute was all that the religion clauses required, the
burden enunciated above was adequate to justify Congressio-
nal action. Id. at 335-36. Approving Congress’s efforts to
minimize inquiry into the activities of concededly religious
organizations does not establish that such an inquiry would be
constitutionally invalid, or that similar concerns arise when
ascertaining whether a purportedly religious organization is in
fact religious within the meaning of § 2000e-1(a). In short,
Amos is of little relevance to the question of statutory inter-
pretation we face.
The majority also cites NLRB v. Catholic Bishop, 440 U.S.
490, 502 (1979), for the proposition that “the very process of
inquiry leading to findings and conclusions” with respect to
the secular or religious nature of a particular activity impinges
on First Amendment rights. Maj. Op. at 12540. Catholic
Bishop, however, reflects concerns directed at “the critical
SPENCER v. WORLD VISION 12589
and unique role of the teacher in fulfilling the mission of a
church-operated school.” Id. at 501; see also Universidad
Central de Bayamon v. NLRB, 793 F.2d 383, 404 (1st Cir.
1986) (en banc) (“[T]he Supreme Court was not concerned
simply with general state regulation of a religious educational
institution. . . . the Court saw teachers in parochial schools as
essentially servants of the Church in carrying out [the
schools’] religious missions.”). We have accordingly declined
to apply Catholic Bishop to employees other than teachers in
religious schools. See NLRB v. Hanna Boys Ctr., 940 F.2d
1295, 1301 (9th Cir. 1991) (“Other employees of parochial
schools, whether professional or ‘blue collar,’ are expressly
excluded from the ruling.” (citation omitted)). And, in con-
trast to § 2000e-1(a), which exempts all employees of reli-
gious organizations, Catholic Bishop left intact the National
Labor Relations Board’s jurisdiction over non-teacher
employees of religious organizations.
Moreover, Catholic Bishop’s rule of constitutional avoid-
ance is only available when it rests on a “plausible interpreta-
tion[ ] of a statutory text.” Clark v. Suarez Martinez, 543 U.S.
371, 381 (2005). Catholic Bishop found no Congressional
intent embodied in the National Labor Relations Act to sub-
ject teachers in church-operated schools to the jurisdiction of
the National Labor Relations Board. Here, Congress’s clear
intent was to prohibit discrimination on the basis of religion,
42 U.S.C. § 2000e-2(a), subject only to a narrow exemption.
As I have explained, the text of that exemption reveals that it
was applicable to organizations devoted to worship and reli-
gious instruction—“churches, synagogues, and the like, and
organizations closely affiliated with those entities.” Townley,
859 F.2d at 618. As the constitutional avoidance canon is “a
means of giving effect to congressional intent, not of subvert-
ing it,” Clark, 543 U.S. at 382, it cannot be relied on to create
a test for the Title VII religious organization exemption at
odds with the language of the statute.
The majority also maintains that Larson v. Valente, 456
U.S. 228 (1982), prohibits any inquiry into whether World
12590 SPENCER v. WORLD VISION
Vision is owned by, affiliated with, or financially supported
by churches, because such an inquiry would require drawing
impermissible distinctions between different religious groups.
Maj. Op. at 12542. In fact, the Townley/Kamehameha Schools
approach in no way conflicts with Larson.
Larson stands only for the undisputed premise that statutes
that make “explicit and deliberate distinctions between differ-
ent religious organizations” are subject to strict scrutiny. 456
U.S. at 246 n.23. There, the statute at issue distinguished on
its face between religious groups that were primarily member-
funded and those that were not. Section 2000e-1(a) contains
no such distinctions.
Nor does the Townley/Kamehameha Schools approach rest
on “overt discrimination against a particular church,” Lynch
v. Donnelly, 465 U.S. 668, 679 (1984), in any other respect.
Kamehameha Schools specifically noted that the Schools had
never been controlled or supported by a religious group and
that they were unaffiliated with any religious group. 990 F.2d
at 461; see also Townley, 859 F.2d at 619. This observation
does not require a comparison between well-established
churches and new ones, or a distinction between organizations
owned or financially supported by a single church and those
receiving support from a broad spectrum of churches (as in
Larson), or between any other religions or types of religions.
Instead, our precedents merely posit that an entity with close
affiliations with churches is more likely to be primarily reli-
gious than an entity that has none at all.11 See Killinger v.
Samford Univ., 113 F.3d 196, 199 (11th Cir. 1997) (consider-
ing, as evidence that a university was primarily religious
under § 2000e-1(a), the fact that the university reported finan-
cially to the Alabama Baptist State Board of Missions and the
Alabama Baptist State Convention). And, despite the majori-
11
The affiliation element can be dispositive where, as in Amos, the orga-
nization claiming the exemption is a wholly-owned subsidiary of a recog-
nized religious body.
SPENCER v. WORLD VISION 12591
ty’s concern, the affiliation factor does not favor institutions
with a denominational affiliation; an organization could pre-
sent evidence of affiliation by showing that it is financially or
programmatically accountable to several churches rather than
just one. Here, the record does not show that World Vision
answers financially or programmatically to any of the
churches with which it “partners.”
The majority is thus left to rely on out-of-circuit cases that
interpret statutes other than Title VII. None are directly rele-
vant, and the constitutional precepts underlying those cases
are inapplicable here even by analogy.
Colorado Christian University v. Weaver, 534 F.3d 1245
(10th Cir. 2008), concerned a statute that required state offi-
cials to analyze whether university theology courses “tend to
indoctrinate or proselytize,” necessitating an inquiry into
“how religious beliefs are derived.” Id. at 1261-62 (quotation
omitted). No such inquiry is required by the Town-
ley/Kamehameha Schools functional, multifactor approach.
University of Great Falls v. NLRB, 278 F.3d 1335 (D.C.
Cir. 2002), and Bayamon, 793 F.2d 383 (1st Cir. 1986) (en
banc), are not pertinent because they concerned admittedly
religious organizations: universities operated by Catholic
orders.12 See Univ. of Great Falls, 278 F.3d at 1338; Baya-
mon, 793 F.2d at 399-400. Moreover, both cases relied on
Catholic Bishop’s interpretation of the National Labor Rela-
tions Act, which, unlike Title VII, did not delineate the scope
of the exemption for religious organizations—much less do so
using terms that have long applied to a narrow group of
entities—and exempted teachers in church-run schools pre-
cisely because their role inevitably contained a religious com-
ponent. Finally, these cases lend little support to the
majority’s holding, as both depend on the affiliation factor
12
Bayamon, moreover, was the product of an evenly divided en banc
panel, so neither of the two opinions is one for the court.
12592 SPENCER v. WORLD VISION
that the majority does not adopt and deems overly intrusive.
Maj. Op. at 12540-41. See Univ. of Great Falls, 278 F.3d at
1343-44 (“It is undisputed that the University is affiliated
with a recognized religious organization, that is, the Catholic
Order of the Sisters of Providence.” (quotations and ellipses
omitted)); Bayamon, 793 F.2d at 399-400 (emphasizing that
“[a]dministrative control of the University lies in the hands of
members of the Dominican Order”).
In sum, none of the cases the majority relies on as support-
ing new tests for applying the religious organization exemp-
tion would have traction even if we were free to rely on the
doctrine of constitutional avoidance in this case—which,
given the clarity of the language of the Title VII religious
organization exemption, we are not.
2.
More broadly, adjudicating Establishment and Free Exer-
cise Clause claims inevitably requires distinguishing between
the religious and the secular by, for example, asking whether
a law evinces the purpose or has the effect of promoting reli-
gion. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639,
648-49 (2002); Edwards v. Aguillard, 482 U.S. 578, 591
(1987) (invalidating a state law which required schools to
teach creationism if they chose to include evolution in their
curricula because it was motivated by “the teachings of cer-
tain religious denominations”); Stone v. Graham, 449 U.S. 39,
41 (1980) (“The pre-eminent purpose for posting the Ten
Commandments on schoolroom walls is plainly religious in
nature.”). Preserving the proper balance and distance between
church and state necessarily involves courts in examining
activities that are avowedly connected to religion, particularly
where the organization invokes religion to seek an exemption
from otherwise applicable law. See Hanna Boys Ctr., 940
F.2d at 1303 (upholding the NLRB’s findings of facts and
rejecting the Center’s contention that child care workers were
“intimately involved with the students as spiritual and theo-
SPENCER v. WORLD VISION 12593
logical mentors”); Westchester Day Sch. v. Vill. of Mamaro-
neck, 386 F.3d 183, 190 & n.4 (2d Cir. 2004) (suggesting that
the Religious Land Use and Institutionalized Persons Act
requires courts to distinguish between secular and religious
purposes, as “not every activity carried out by a religious
entity . . . constitutes ‘religious exercise’ ” (quoting 146 Cong.
Rec. S7774-01, S7776 (July 27, 2000))); Dole v. Shenandoah
Baptist Church, 899 F.2d 1389, 1397 (4th Cir. 1990) (con-
cluding, in rejecting a church-owned school’s claim that the
Free Exercise Clause precluded application of the Fair Labor
Standards Act to its teachers, that “[t]he pay requirements at
issue do not cut to the heart of Shenandoah beliefs”).
Moreover, adjudication of Free Exercise and Establishment
Clause claims sometimes requires courts to determine
whether religious beliefs are sincerely held, see, e.g., Patrick
v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984), and to inspect
a religious belief to decide whether it has been substantially
burdened by state action. See, e.g., May v. Baldwin, 109 F.3d
557, 562-63 (9th Cir. 1997) (discussing the significance of
dreadlocks within the Rastafarian religion); Ford v. McGin-
nis, 352 F.3d 582, 593-94 (2d Cir. 2003) (discussing the
importance of observing the Eid ul Fitr feast to the plaintiff’s
practice of Islam). When determining whether an entity is
covered by an exemption that, by its express terms, applies
only to religious organizations, “federal courts cannot always
avoid taking a stand on a religious question.” Tomic v. Catho-
lic Diocese of Peoria, 442 F.3d 1036, 1039 (7th Cir. 2006).
Indeed, Title VII’s other religious organization exceptions
require judicial inquiry of the kind that the majority condemns
as constitutionally invalid. To apply the ministerial exception
doctrine, for example, we examine the actual functions of the
employees said to be within the exception. See Elvig, 375
F.3d at 958 (noting that courts “look[ ] to the function of the
position rather than to ordination in deciding whether the min-
isterial exception applies to a particular employee’s Title VII
claim”); see also Dole, 899 F.2d at 1396 (rejecting application
12594 SPENCER v. WORLD VISION
of the ministerial exception to teachers who “perform no sac-
erdotal functions . . . [and] belong to no clearly delineated
religious order”); EEOC v. Mississippi Coll., 626 F.2d 477,
485 (5th Cir. 1980) (“The faculty members . . . neither attend
to the religious needs of the faithful nor instruct students in
the whole of religious doctrine.”). Civil courts are “incompe-
tent judges of matters of faith, discipline, and doctrine,” Wat-
son, 80 U.S. at 732 (quotations omitted), but whether a
particular church employee functions as a minister is a non-
doctrinal matter.
It cannot be, as the majority suggests, Maj. Op. at 12539,
that courts are constitutionally prohibited from ascertaining a
purportedly religious organization’s purpose when the test for
assessing “whether [ ] government entanglement with religion
is excessive” requires courts to “examine the character and
purposes of the institutions” involved. Lemon, 403 U.S. at
615. If any judicial action beyond simply accepting the repre-
sentations of a purportedly religious organization were “con-
stitutionally troublesome,” courts would be incapacitated
entirely from policing the boundaries of the constitution’s
religion clauses. Avoiding entirely such inquiry cannot be the
fulcrum for an otherwise implausible statutory interpretation.
3.
Finally, even if the majority’s theory—that Townley and
Kamehameha Schools’ functional inquiry requires both
impermissible differentiation between religions and unavoid-
able intrusion into doctrinal matters—were correct, the pro-
posed solutions do not solve the problem my colleagues
perceive. Our case law applying the statutory exemption only
to churches and entities like churches is in fact less intrusive
than the tests my colleagues would adopt. While Judges
O’Scannlain and Kleinfeld purport to avoid judicial entangle-
ment in religious doctrine by deferring entirely to the self-
characterization of any organization seeking to claim the
exemption, that approach would inevitably require courts to
SPENCER v. WORLD VISION 12595
“troll[ ] through a person’s or institution’s religious beliefs,”
Mitchell v. Helms, 530 U.S. 793, 828 (2000), if it is to be
applied in any meaningful way.
To see why, let us suppose that, after our decision in Town-
ley, the mining company’s owners reincorporated the entity as
a nonprofit and revised its articles of incorporation to describe
its purpose as “sharing the Gospel of the Lord Jesus Christ by
creating a community of individuals with common religious
beliefs and providing a means for them to advance God’s pur-
pose and fulfill their corporeal needs by joining in the manu-
facture of mining equipment.” The Townleys could then come
before us and point out that the organization’s articles of
incorporation include “a self-identified religious purpose,”
and its conduct, including holding weekly prayer sessions and
extending financial support for churches and other religious
entities, is “consistent with and in furtherance of” that reli-
gious purpose. Finally, by including Gospel tracts in all out-
going mail and printing Bible verses on all documents,
Townley could maintain that it “holds itself out to the public
as religious.” See Opinion of O’Scannlain, J., at 12545; Con-
currence of Kleinfeld, J., at 12570-71.
Under my colleagues’ proposed standards, we would then
have no choice but to consider whether the revisions in the
mining manufacturer’s format and self-presentation qualify it
as a “religious corporation.” Do the corporation’s activities
sufficiently further its “self-identified religious purpose,” in
light of the fact that there is only the most tenuous relation-
ship between that purpose and manufacturing mining equip-
ment? Such an inquiry would necessarily require an intrusive
assessment into the import and sincerity of the proffered reli-
gious beliefs. And were we to reject such an inquiry as consti-
tutionally prohibited, we would be forced to disregard the fact
that the manufacture of equipment remains the organization’s
primary operational pursuit and that there is nothing more
than the asserted religious beliefs of the organization’s found-
ers to connect that secular activity to the stated religious pur-
12596 SPENCER v. WORLD VISION
pose. Yet, under our precedent such beliefs, even if sincere,
“are simply not enough . . . to make [a] corporation ‘religious’
within the meaning of [the statute].” Townley, 859 F.2d at
619.
Judge Kleinfeld suggests that “looking at how an institution
charges” remedies this problem: “If money is not available as
an incentive, that is strong evidence, in the purportedly reli-
gious institution, that exercise of religion is the objective.”
Concurrence of Kleinfeld, J., at 12569. In many cases this
observation is undoubtably true. But just as nonprofit status
is often a poor indicator of religious purpose, so too is an
answer to the question whether the entity engages in the “ex-
change of goods or services for money beyond nominal
amounts.” Id. at 19. The mining company in Townley could
establish an entity satisfying Judge Kleinfeld’s standard, with
a purportedly religious purpose. Such an entity could still
have a business impact, by reflecting positively on the profit-
making company’s corporate image and boosting the compa-
ny’s bottom line. Judge Kleinfeld’s solution, then, would not
resolve my concerns with the majority’s standards.
In contrast, the approach mandated by Townley and Kame-
hameha Schools allows us to ensure that the exemption is
applied narrowly without delving into sensitive doctrinal mat-
ters. See Jones, 443 U.S. at 603-05 (approving an approach
that applied neutral legal principles to a church schism dis-
pute, rejecting the dissent’s suggestion that “a rule of compul-
sory deference [to religious authority] would somehow
involve less entanglement of civil courts in matters of reli-
gious doctrine”). That approach does not require analysis of
“how religious beliefs are derived” or whether the organiza-
tion’s “actions were mandated by its religious creeds.” Colo.
Christian Univ., 534 F.3d at 1262, 1264 (quotations, citations
and brackets omitted). Nor does it demand that we define
“who is a ‘Christian.’ ” Id. at 1265. Instead, our precedent
focuses on observable, functional, and largely self-reported
attributes such as an institution’s daily activities and the docu-
SPENCER v. WORLD VISION 12597
ments and procedures that govern them, the community it
serves, and its formal affiliation with religious bodies or lack
thereof. And it is an inquiry with a focus, directed at the ulti-
mate end of deciding whether the organization is a church or
church-like organization—that is, an organization tradition-
ally referred to as a “religious corporation, association . . . or
society.” 42 U.S.C. § 2000e-1(a). In undertaking that inquiry,
we decidedly do not presume to “decide what policies are
entailed by . . . the institution’s religious beliefs.” Colo.
Christian Univ., 534 F.3d at 1264.
To the extent that the majority’s concern that our inquiry
requires excessive entanglement in religious doctrine has any
validity, a different approach might address these concerns
while preserving Congress’s intent with respect to the exemp-
tion’s scope. If we were at liberty to alter the inquiry estab-
lished in Townley and Kamehameha Schools, I would suggest
that we ask only whether the primary activity of a purportedly
religious organization consists of voluntary gathering for
prayer and religious learning. This approach would even bet-
ter match our analysis to the centuries-old definition of reli-
gious society while avoiding the questions of affiliation and
purpose that, however unnecessarily, trouble the majority.13
But I am no more free to adopt that approach than my col-
leagues are to adopt theirs. Moreover, as the Town-
ley/Kamehameha Schools approach is focused on answering
the same essential question—whether the institution in ques-
tion possesses the centuries-old characteristics of a “religious
society”—I would adhere to our precedents, which adequately
narrow our inquiry to avoid any significant court entangle-
ment in religious doctrine.
13
Contrary to the majority’s assertion, see Maj. Op. at 12541 n.8,
“prayer” provides a judicially cognizable standard. See Simpson v. Ches-
terfield County Bd. of Supervisors, 404 F.3d 276, 280 (4th Cir. 2005) (not-
ing that Marsh v. Chambers, 463 U.S. 783, 792 (1983), “defines . . .
prayer as an act to ‘invoke Divine guidance’ ”).
12598 SPENCER v. WORLD VISION
4.
I conclude by applying the analysis our precedent requires
to determine whether World Vision is a religious organization
within the meaning of § 2000e-1(a). World Vision’s Christian
beliefs are strongly evident in its articles of incorporation,
operational policy, and other foundational documents. It hires
only co-religionists and provides religious services, albeit for
staff only. Indeed, “staff spiritual formation” is a major part
of World Vision’s religious programming.14
Still, World Vision is not managed, controlled, or operated
by, or affiliated with, any particular church. World Vision
“partners” with a broad variety of churches—not only the
Protestant churches that share World Vision’s faith, but also
Catholic, Muslim, and Jewish religious groups. World Vision
is not at all accountable to these churches but only to its own
Board of Directors. The Board “must have representation
from . . . church and ministry leadership,” but also from non-
church personnel who have worked among the poor, have
experience in financial management, and have ties to a “major
donor community.”
World Vision claims that 84% of its private cash contribu-
tions come from churches or individual coreligionists that
share its faith but points to nothing besides the conclusory
statements of World Vision officers (“We know that our sup-
porters are committed Christians”) for the proposition that
individual donors are motivated to give by their shared faith.
Moreover, cash contributions account for less than half of
World Vision’s revenue, with the remainder coming from
government grants and gifts-in-kind.
World Vision provides some religious materials to those it
14
When a World Vision officer was asked about conducting religious
services in conjunction with humanitarian outreach, she responded by cit-
ing the weekly chapel services for staff.
SPENCER v. WORLD VISION 12599
assists in the countries where it provides humanitarian aid,
through programs like “Youth Bible Curriculum,” “Commu-
nity Bible Reading,” “Scripture Search,” and “Children in
Christ.” World Vision’s Church Partnerships are intended to
“help churches of every denomination work effectively
together.” While World Vision maintains that it “could”
include prayer services in its charitable work, the record con-
tains only one description of such an event.
Moreover, World Vision does not represent that church
outreach or other explicitly Christian work comprises the
majority of its daily operations. Instead, the vast majority of
World Vision’s work consists of humanitarian relief, includ-
ing “provid[ing] school supplies, clothes, toys, household
goods and building supplies,” to U.S. citizens and providing
potable water, emergency medical care, and vocational train-
ing to refugees and vulnerable populations throughout the
world, distributing condoms to reduce the spread of HIV
among sex workers, improving the transparency and respon-
siveness of legislative bodies, improving child and maternal
health, and preventing HIV infection.
Ultimately, I am convinced that, considering the factors
emphasized in Townley and Kamehameha Schools, World
Vision is not a religious corporation, association or society
within the meaning of § 2000e-1(a). Instead, World Vision’s
purpose and daily operations are defined by a wide range of
humanitarian aid that is, on its face, secular. Although World
Vision maintains that “Christian witness” is “integrated with-
in” these activities, World Vision’s definition of “Christian
witness” encompasses all humanitarian acts, from digging a
well to providing food and water to the hungry. So this circu-
lar argument leads nowhere. Only the personal religious
beliefs of World Vision staff differentiate these humanitarian
acts from the “ministry” that could, as World Vision con-
cedes, be provided by people of all faiths or no faith. In short,
World Vision is nothing like a church, but resembles in its
primary activities a wide range of charitable organizations.
12600 SPENCER v. WORLD VISION
I have no doubt that “World Vision’s theology compels it
to serve the physical needs of the poor in the name of Jesus
Christ,” and I do not attempt to define “what does or does not
have religious meaning” to religious adherents. New York v.
Cathedral Acad., 434 U.S. 125, 133 (1977). Townley reminds
us, however, that deeply-held religious beliefs do not, if com-
bined with primarily secular activities, make the organization
religious within the meaning of the statute. 859 F.2d at 619.
For this reason, Judge Kleinfeld’s proposal—namely, asking
whether the entity “engage[s] primarily or substantially in the
exchange of goods or services for money beyond nominal
amounts”—does not reconcile his concurrence with Townley.
Answering this question may illuminate an organization’s
motivations, but it does not transform an entity performing
primarily secular activities into one organized for worship,
religious study, or the dissemination of religious doctrine.
This same principle is reflected elsewhere in our case law
dealing with religious exemptions. In Volunteers of America,
Los Angeles (VOA) v. NLRB, 777 F.2d 1386 (9th Cir. 1985),
a church-operated social services agency claimed that the
National Labor Relations Board’s exercise of jurisdiction over
its employees was unconstitutional. The VOA contended, as
World Vision does here, that its “activities are an integral,
inseparable function of its avowed principle of serving God
by serving humanity, and of serving God and humanity by
deed and example.” Id. at 1389 (quotations omitted). We held
that because “[t]he VOA’s social programs are expressive of
a religious philosophy but are carried out in a secular fash-
ion,” Board jurisdiction did not pose a significant risk of
entanglement. Id. at 1390. In St. Elizabeth Community Hosp.
v. NLRB, 708 F.2d 1436 (9th Cir. 1983), we upheld Board
jurisdiction over a hospital affiliated with the Sisters of
Mercy, a Catholic order. Despite this affiliation, the presence
of crucifixes and other religious symbols throughout the hos-
pital, and the hospital’s practice of beginning staff meetings
with prayer, we held that “St. Elizabeth does not have a sub-
stantial religious character. Its primary purpose, like that of
SPENCER v. WORLD VISION 12601
any secular hospital, is rather humanitarian, devoted to medi-
cal care for the sick.” Id. at 1441.
More generally, we may completely credit the sincerity of
religious faith, and adherents’ belief that their faith mandates
certain activities while still determining that the religious
belief does not preclude the application of a neutral, secular
law. “[G]overnment simply could not operate if it were
required to satisfy every citizen’s religious needs and
desires.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 452 (1988). It may be that World Vision’s staff
would prefer to associate only with coreligionists. But it has
not alleged that requiring them to adhere to Title VII would
burden their free exercise of religion. And it is farfetched to
believe that preventing World Vision from firing administra-
tive assistants, schedulers and facilities managers because
they do not subscribe to a particular Christian doctrine would
render World Vision’s mission statement nothing more than
a “meaningless,” “nostalgic slogan,” as World Vision main-
tains.
CONCLUSION
Title VII’s prohibition on religious discrimination aims to
protect the religious freedom of employees by insulating their
religious beliefs from their economic well-being. That is why
“[a]ny exemption from Title VII’s proscription on religious
discrimination necessarily has the effect of burdening the reli-
gious liberty of prospective and current employees.” Amos,
483 U.S. at 340 (Brennan, J., concurring). Section 2000e-1(a)
reflects Congress’s recognition that for a small group of
employers—organizations devoted to prayer and religious
instruction—the requirement to accommodate employees of
different faiths could represent an unwarranted intrusion into
the organizations’ own freedom of religion. For those groups,
on balance, the restriction of the relatively few affected jobs
to those with approved religious beliefs is tolerable.
12602 SPENCER v. WORLD VISION
My colleagues may wish to expand that narrow exemption
to nonprofits that assert they are motivated by religious prin-
ciples. But that interpretation would severely tip the balance
away from the pluralistic vision Congress incorporated in
Title VII, toward a society in which employers could self-
declare as religious enclaves from which dissenters can be
excluded despite their ability to do the assigned secular work
as well as religiously acceptable employees. The consequence
would be a broadened impact on the religious freedom of
employees and prospective employees, who would feel com-
pelled to reshape their religious beliefs so as to assure their
economic survival.
With competing religious freedom concerns thus embedded
in the delineation of a religious organization exemption, Con-
gress struck a balance, in part by including another statutory
exception to minimize inte
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