Spencer v. World Vision, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYLVIA SPENCER; TED YOUNGBERG;  No. 08-35532

VICKI HULSE, D.C. No.

Plaintiffs-Appellants,

v.  2:07-cv-01551-RSM

ORDER AND

WORLD VISION, INC., AMENDED

Defendant-Appellee.

 OPINION

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

Amended January 25, 2011

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and

Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge O’Scannlain;

Concurrence by Judge Kleinfeld;

Dissent by Judge Berzon

1397

1400 SPENCER v. WORLD VISION

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.

SPENCER v. WORLD VISION 1401

Kevin H. Theriot, Alliance Defense Fund, Leawood, Kansas,

filed a brief on behalf of amici curiae Alliance Defense Fund

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.

ORDER

The opinion filed in this case on August 23, 2010, and

reported at 619 F.3d 1109, is hereby amended. An amended

opinion is filed concurrently with this order.

With this amendment, Judge O’Scannlain has voted to deny

the petition for rehearing en banc, and Judge Kleinfeld has so

recommended. Judge Berzon has voted to grant the petition

for rehearing en banc. The full court has been advised of the

petition for rehearing en banc, and no active judge has

requested a vote on whether to rehear the matter en banc. See

Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No subse-

quent petitions for rehearing or rehearing en banc may be

filed.

OPINION

PER CURIAM:

A majority of the panel (Judges O’Scannlain and Kleinfeld)

holds that World Vision, Inc. qualifies as an entity exempt

1402 SPENCER v. WORLD VISION

under 42 U.S.C. § 2000e-1(a) from Title VII’s general prohi-

bition against religious discrimination. Judges O’Scannlain

and Kleinfeld concur that an entity is eligible for the section

2000e-1 exemption, at least, if it is organized 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.

For the reasons set forth in the opinions of Judges

O’Scannlain and Kleinfeld, the district court’s grant of sum-

mary judgment to World Vision, Inc. is

AFFIRMED.

O’SCANNLAIN, Circuit Judge, concurring:

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.

SPENCER v. WORLD VISION 1403

A

World Vision describes itself as “a Christian humanitarian

organization dedicated to working with children, families and

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 pp. 1428-29. All acknowledged their “agreement

and compliance” with World Vision’s Statement of Faith,

Core Values, and Mission Statement. See infra pp. 1422-23,

1429.

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

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.

1404 SPENCER v. WORLD VISION

God, eternally existent in three persons: Father, Son, and the

Holy Spirit”—the Employees were terminated. See infra p.

1422-23.

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

SPENCER v. WORLD VISION 1405

religious reasons. For purposes of this appeal,2 such termina-

tion was permissible if—and only if—World Vision is a “reli-

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

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.

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).

1406 SPENCER v. WORLD VISION

(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

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-

SPENCER v. WORLD VISION 1407

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

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,

1408 SPENCER v. WORLD VISION

and entities similar to churches.” Townley, 859 F.2d at 618 &

n.14

[4] Despite the Employees’ protestations to the contrary,

our interpretation of section 2000e-1 is not as “narrow” as

they 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.

[5] 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-

SPENCER v. WORLD VISION 1409

[6] 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

ration,” and “religious society” are all synonyms for “church.” Dissent at

1452-57. 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)).

1410 SPENCER v. WORLD VISION

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-

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).

[7] 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

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 1411

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

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,

1412 SPENCER v. WORLD VISION

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-

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,

SPENCER v. WORLD VISION 1413

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

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.

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 1465.

1414 SPENCER v. WORLD VISION

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

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.

SPENCER v. WORLD VISION 1415

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

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

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-

1416 SPENCER v. WORLD VISION

United States argues as amicus curiae, “[t]o deny World

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.

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).

SPENCER v. WORLD VISION 1417

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

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

[8] 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-

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.

1418 SPENCER v. WORLD VISION

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

entanglement concerns as a reason for declining to decide

whether an activity was religious or cultural).

e

[9] 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 religious institutions.12 The fact that prior organiza-

tions found eligible 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 affili-

ated.

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.

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

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 1419

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 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.

The initial consideration, whether the entity is a nonprofit,

is especially significant. Because “persons having a personal

and private interest in the activities of [a nonprofit] organiza-

tion” 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 orga-

nization’s status as a nonprofit bolsters a claim that its pur-

pose 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 nonprofit entity

is distinguished from a for-profit entity by what it does with

its net earnings. A nonprofit entity must spend any net earn-

ings to advance its tax-exempt purpose, and may not distrib-

ute 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 nonprofit if “no part of the

net earnings of [the organization] inures to the benefit of any

1420 SPENCER v. WORLD VISION

private shareholder or individual”); see also 26 C.F.R.

§ 1.501(c)(3)-1(b)(4). This is not to say that a nonprofit orga-

nization 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 ser-

vices). Just as a nonprofit hospital may pay $5 million for a

new MRI machine that costs $5 million, it may pay $400,000

a year to hire a radiologist when the going rate for a radiolo-

gist is $400,000 a year. See id.

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.

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 religious

“helps to ensure that only bona fide religious institutions are

exempted.” Great Falls, 278 F.3d at 1344. “[S]uch public rep-

resentations serve as a market check. While public religious

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 1421

identification will no doubt attract some [people] to the insti-

tution, it will dissuade others. In other words, it comes at a

cost. Such market responses will act as a check on institutions

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

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 high-

light the contrast between the large, international humanitar-

ian relief organization that is World Vision, and the local

Jewish community center in LeBoon, which served only a

“discrete religious community.”

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 orga-

nization. Cf. Townley, 859 F.2d at 619 (noting that the compa-

ny’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).

1422 SPENCER v. WORLD VISION

2

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 pur-

poses of the exemption cannot be based on its conformity to

some preconceived notion of what a religious organization

should do, but must be measured with reference to the partic-

ular 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

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 1423

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

1424 SPENCER v. WORLD VISION

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 1425

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.

This review of undisputed evidence in the record readily

shows that World Vision continues to conform to its founding

documents, conducting “Christian religious and missionary

1426 SPENCER v. WORLD VISION

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.

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. According 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 1427

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, counsel-

ing, prayer, and a variety of other services without concern for

whether the individual requesting such services is a coreli-

gionist. Adopting the Employees’ standard compels the con-

clusion 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

I next ask whether World Vision holds itself out to the pub-

lic as a religious organization. Even the Employees concede

this point. They could do little else. World Vision makes no

effort to disguise its Christian nature.

At the most basic level, World Vision’s logo is a stylized

Christian cross, and religious artwork and texts are displayed

throughout the organization’s campus. Much more signifi-

cantly, 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.

1428 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 1429

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.”

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.

1430 SPENCER v. WORLD VISION

5

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 precedent com-

pels 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 discriminate 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.

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 1431

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

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 overwhelming,

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.”

1432 SPENCER v. WORLD VISION

terly, and monthly; and an entire work day is set aside each

year for prayer.24

C

Based on the foregoing consideration of “[a]ll significant

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.

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 and II of

Judge O’Scannlain’s concurrence.

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 1433

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

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

1

42 U.S.C. § 2000e-1(a).

2

See Puerta v. United States, 121 F.3d 1338, 1344 (9th Cir. 1997).

1434 SPENCER v. WORLD VISION

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

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-

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 1435

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

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

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).

1436 SPENCER v. WORLD VISION

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

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

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.

10

See Isaiah 1:15-17; Isaiah 58:3-8.

SPENCER v. WORLD VISION 1437

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

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”

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).

13

859 F.2d 610, 612 (9th Cir. 1988).

1438 SPENCER v. WORLD VISION

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.

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.

14

Berzon dissent at 1453 n.5.

SPENCER v. WORLD VISION 1439

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.

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

15

26 U.S.C. § 501(c)(3) (“Corporations, and any community chest, fund,

or foundation, organized and operated exclusively for religious, charitable,

1440 SPENCER v. WORLD VISION

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

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

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.”).

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).

SPENCER v. WORLD VISION 1441

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

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

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.

1442 SPENCER v. WORLD VISION

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

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-

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).

SPENCER v. WORLD VISION 1443

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

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

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

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.

1444 SPENCER v. WORLD VISION

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-

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.

20

See, e.g., Deuteronomy 6:6-7.

21

42 U.S.C. § 2000e-2(e)(2).

SPENCER v. WORLD VISION 1445

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 a brand new test for applying

the Title VII religious organization exemption.1 Under that

newly minted standard, any entity can claim the exemption “if

that entity is organized for a religious purpose, is engaged pri-

marily in carrying out that religious purpose, holds itself out

to the public as an entity for carrying out that religious pur-

pose, and does not engage primarily or substantially in the

exchange of goods or services for money beyond nominal

amounts.” Per Curiam Opinion.

This 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, the majority’s approach would transform

what has always been a narrow exemption from the general

prohibition on religious discrimination into an exceedingly

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.

1446 SPENCER v. WORLD VISION

broad one, with no obvious stopping point. I explain below

that this expansive standard for invoking the exemption con-

travenes 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

“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-

SPENCER v. WORLD VISION 1447

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

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.

1448 SPENCER v. WORLD VISION

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

§ 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 majority’s test departs 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

SPENCER v. WORLD VISION 1449

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 my colleagues 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.” See Concurrence of

O’Scannlain, J. at 1417. This portrayal of our precedents is

wrong. Close inspection of Kamehameha Schools, in particu-

lar, reveals that the characterization 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-

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

1450 SPENCER v. WORLD VISION

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

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 majority’s test cannot be squared with our precedent

2

The majority characterizes this inquiry as assessing the “quantum” of

“admittedly religious activity at the school.” See Concurrence of

O’Scannlain, J. at 1417 n.11. The observation that the Schools’ religious

studies program was “largely comparative” and involved no instruction in

Protestant doctrine, however, entails an assessment of the nature—the

quality—of the allegedly religious activity, not merely its quantity.

SPENCER v. WORLD VISION 1451

on the grounds that in Kamehameha Schools the “character-

izations [of the organizations’ attributes] were not our own.”

See Concurrence of O’Scannlain, J. at 1417. 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 attri-

butes. 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. See Concurrence of

O’Scannlain, J. at 1411. The relevant characteristics will

depend on the type of institution invoking the exemption.3

The variable nature of the inquiry, however, does not relieve

us of our obligation to assess “[a]ll significant religious and

secular characteristics.” Kamehameha 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 anal-

ysis prescribed in our two precedential 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

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.

1452 SPENCER v. WORLD VISION

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

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 majority’s test would permit a broad variety of reli-

giously influenced organizations 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-

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 1453

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

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

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 1438.

1454 SPENCER v. WORLD VISION

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

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-

SPENCER v. WORLD VISION 1455

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-

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.

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.

1456 SPENCER v. WORLD VISION

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-

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

SPENCER v. WORLD VISION 1457

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

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

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.”

See Concurrence of Kleinfeld, J., at 1436 (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.”

1458 SPENCER v. WORLD VISION

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

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

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.

SPENCER v. WORLD VISION 1459

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).

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

1460 SPENCER v. WORLD VISION

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 1436-37 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 affiliation 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-

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 majority’s newly minted standard, we must

accept without inquiry the parties’ own characterizations of

SPENCER v. WORLD VISION 1461

particular institutional attributes as either religious or secular,

as any judicial analysis of a purportedly religious organiza-

tion’s activities or purpose is “constitutionally troublesome.”

See Concurrence of O’Scannlain, J., at 1412. The majority

invokes Amos for this proposition, but Amos is not control-

ling 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

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-

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).

1462 SPENCER v. WORLD VISION

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. See Concurrence of O’Scannlain,

J., at 1414. Catholic Bishop, however, reflects concerns

directed at “the critical and unique role of the teacher in ful-

filling 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 reli-

gious educational institution. . . . the Court saw teachers in

parochial schools as essentially servants of the Church in car-

rying 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 contrast to § 2000e-1(a), which exempts all

employees of religious organizations, Catholic Bishop left

intact the National Labor Relations Board’s jurisdiction over

non-teacher employees of religious organizations.

SPENCER v. WORLD VISION 1463

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

Vision is owned by, affiliated with, or financially supported

by churches, because such an inquiry would require drawing

impermissible distinctions between different religious groups.

See Concurrence of O’Scannlain, J., at 1416. 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

1464 SPENCER v. WORLD VISION

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-

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

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 1465

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

that the majority does not adopt and deems overly intrusive.

See Concurrence of O’Scannlain, J., at 1414-15. See Univ. of

Great Falls, 278 F.3d at 1343-44 (“It is undisputed that the

University is affiliated with a recognized religious organiza-

tion, 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 a new test 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.

12

Bayamon, moreover, was the product of an evenly divided en banc

panel, so neither of the two opinions is one for the court.

1466 SPENCER v. WORLD VISION

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-

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

SPENCER v. WORLD VISION 1467

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

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, See Concurrence of

O’Scannlain, J., at 1413, that courts are constitutionally pro-

hibited from ascertaining a purportedly religious organiza-

tion’s purpose when the test for assessing “whether [ ]

government entanglement with religion is excessive” requires

1468 SPENCER v. WORLD VISION

courts to “examine the character and purposes of the institu-

tions” involved. Lemon, 403 U.S. at 615. If any judicial action

beyond simply accepting the representations of a purportedly

religious organization were “constitutionally 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 major-

ity’s solution does 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 test adopted by my colleagues. While the majority

purports to avoid judicial entanglement in religious doctrine

by deferring entirely to the self-characterization of any orga-

nization seeking to claim the exemption, that approach inevi-

tably requires courts to “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

SPENCER v. WORLD VISION 1469

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 Concurrence of O’Scannlain, J., at 1419;

Concurrence of Kleinfeld, J., at 1443-44.

Under my colleagues’ standard, 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 suffi-

ciently further its “self-identified religious purpose,” in light

of the fact that there is only the most tenuous relationship

between that purpose and manufacturing mining equipment?

Such an inquiry would necessarily require an intrusive assess-

ment into the import and sincerity of the proffered religious

beliefs. And were we to reject such an inquiry as constitution-

ally prohibited, we would be forced to disregard the fact that

the manufacture of equipment remains the organization’s pri-

mary operational pursuit and that there is nothing more than

the asserted religious beliefs of the organization’s founders to

connect that secular activity to the stated religious purpose.

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 1443. 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 1444. The mining company in Townley could

establish an entity satisfying Judge Kleinfeld’s standard, with

1470 SPENCER v. WORLD VISION

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-

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-

SPENCER v. WORLD VISION 1471

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.

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

13

Contrary to the majority’s assertion, seeSee Concurrence of

O’Scannlain, J., at 1415 n.8, “prayer” provides a judicially cognizable

standard. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d

276, 280 (4th Cir. 2005) (noting that Marsh v. Chambers, 463 U.S. 783,

792 (1983), “defines . . . prayer as an act to ‘invoke Divine guidance’ ”).

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.

1472 SPENCER v. WORLD VISION

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

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

SPENCER v. WORLD VISION 1473

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.

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.

1474 SPENCER v. WORLD VISION

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

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

SPENCER v. WORLD VISION 1475

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., con

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