Amicus Curiae Brief — Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos

IN THE

Supreme Court of the Unite?

OCTOBER TERM, 1986

>

THE CORPORATION OF THE PRESIDING BISHOP OF THE

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, ef ai.,

Appellants,

usta

CHRISTINE J. AMOS, ef ai.,

Appellees.

>

UNITED STATES OF AMERICA,

Appellant,

—T

CHRISTINE J. AMOS, ef ai.,

Appellees.

ON APr ALS FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF UTAH

BRIEF OF THE WOMEN’S LEGAL DEFENSE FUND,

THE NATIONAL COUNCIL OF JEWISH WOMEN, THE

NATIONAL COALITION OF AMERICAN NUNS AND

THE INSTITUTE OF WOMEN TODAY, AMICI CURIAE.

DONNA LENHOFF

Counsel of Record

Of Counsel: Women’s Legal Defense Fund

DEBORAH A. ELLIS 2000 P Street, NW

132 West 43rd Street Washington, D.C. 79036

New York, New York 10036 (202) 887-0634

Attorneys for Amici Curiae

TABLE OF CONTENTS

TABLE OF Ue (PP rrr ras? fl

INTEREST OF AMICI OO rrr rr rs

STATEMENT OF THE rr ne ef 8 © 4

SUMMARY OF ef

TTT TTT TT rTrrrrrrrrrrrrrrii |

I.

THE RELIGIOUS EMPLOYER'S

EXEMPTION UNDER TITLE VII WAS

NEVER INTENDED TO AUTHORIZE

THE KIND OF DISCRIMINATION

WHICH OCCURRED IN THIS CASE,

AND THE EMPLOYER IN THIS CASE

HAS NO CONSTITUTIONAL

ENTITLEMENT TO AN EXEMPTION

FROM FEDERAL ANTI-DISCRIMINA-

TION LAW. cc cece cee eeeceseeesseses el

A. The Exemption For Religiously-

ate loyers Was Never

Contemplate °

° y

Clear Non-Religious Eeploy-

ment In A Public nasium

Merely Because A Church Owns

The Dj petidenenees eoce cll

B. The Record In This Case Is

Any Evidence That A

vo

Free Exercise Right Of The

Church Will Be Violated If

Federal Anti-Discrimination

Law Is Applied To Mayson's

Dismissa

TYTTTTTTITTTriiriirirye . |

-i-

II. THE TITLE VII EXEMPTION FOR

RELIGIOUS EMPLOYERS AS APPLIED

TO A BUILDING MAINTENANCE

ENGINEER IN A PUBLIC GYMNASIUM

VIOLATES THE ESTABLISHMENT

CLAUSE AND ADVERSELY AFFECTS

THE EMPLOYEE'S RIGHT TO

FREEDOM OF CONSCIENCE.......202+++35

A. The Ex tion Is

Gnsonet i tat ional Here Because

Of Its Effects On Mayson's

Freedom of Conscience

And The Advantages Flowing

° e WEEMceccccccesccesccoosls

1. The Effect on Mayson's

Right to Freedom of

CORSSEGRSSc ccoccccocceocosons

2. The Exemption Gives

Religious Organizations

Advantages Over Non-

Religious Employers In

The Secular Economy.......41

B. Protecting Mayson Agains®

Discrimination t Cause

Entanglement Problems.........48

I-I. THE DISTRICT COURT DID NOT

ABUSE ITS DISCRETION IN AWARDING

MAYSON BREE co cccecoseseseeseeeeenn

CONC L.USION ee ef @e ee © re eff © © TYTTTiriirifteftfttsss.T..

-ii-

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422

= Se We) ) PEE) Pa

Arizona Governing Comm. v. Norris,

i i i Ms cc ccccccoccceecc cc] co OO

Bob Jones University v. United States,

461 U.S. 574 LTTE TF 55

California v. Grace Brethren Church,

457 U.S. 393 PRweSPccecccccccccecceccscceceses

City of Los Angeles, Dep't of Water

Power v. Manhart, 435 U.S. 702

DUPE SPEER ee eeeeeebecccccccccc cc 3 Se 60

Denver Post of the Nat'l Soc'y of the

Volunteers of America v. N.L.R.B.,

732 F.20a 769 (10th Cir. 1984)... cee een eee 53

Dolter v. Wahlert High Sciool, 483

F. Supp. 266 (N.D. Iowa D9SO )cccccccccccceedd

E.O.C. v. Fremont Christian School,

1 F.2d 1362 (9th Cir. 1986)......19, 46, 47

a

E.E.0.C. v. Mississippi College, 626 F.2d

477 (Sth Cir. 1980), cert. denied,

453 U.S. 912 (19Bl).. cece eeeceseeelD, 27, 47

E.E.0.C. v. Pacific Press Pub. Ass'n,

676 F.2d 1272 (9th Cir. 1982)......19, 27, 47

E.E.0.C. v. Southwestern Baptist Theological

Seminary, 651 F.2d 277 (Sth Cir. 1981),

cert. denied, 456 U.S. 905 (1982)......19, 27

-iii-

Estate of Thornton v. Caldor, Inc.,

105 §.ct. 2914 (1985)... 2... e eee eee passim

Everson v. Board of Education, 330 U.S.

1 5666656566660 440 bneEe ae bedhoce becca

Gibbons v. District of Columbia, 116

U.S. 404 (0 SRS nos

Gillette v. United States, 401 U.S.

437 bt PEPTTTTPTSTTrTeTes eee 50, 51

Goldman v. Weinberger, 106 S.Ct. 1310

lecessoectuadeunaaawes see et ee @ ee © ececcecceceeda

Harper v. General Grocers Co., 590

F. 713 (8th Cir. 1979) see fe @ @ © *eeeeeeeeee -60

In re Chronicle Broadcasting Co., 599

F eGSeGe 2d 335 Ces 6 6965666666 666ceensesoll

Larkin v. Grendel's Den, Inc., 459 U.S.

116 (1982)... se @ee eocccccccesecccceceseeSsy 54

Larson v. Valente, 456 U.S. 228 (1982).....35

Lemon v. Kurtzman, 403 U.S. 602

LC UPPPPTTTITITT Tre eee” 48, 50, 52

Marbury v. Madison, 5 U.S. 137 (1803)......54

Marsh v. Chambers, 463 U.S. 783

(1983).... *e ff Coe eee eres eeeseessesesesle, 35

McClure v. Salvation Army, 460 F.2d 553

(Sth Cir.), cert. denied, 409 U.S.

896 Pe) PPPPPTYTITTTTTTerrrrrereeee > 20, 26

N.L.R.B. v. Catholic Bishop of Chicago,

440 U.S. 490 (1979)... *e ee eee eocccccece DO 57

Ninth & O Street Baptist Church v. E.E.0O.C.,

16 F.Supp, 1231 (WE F.Supp. (W.D. Ky. 1985), aff'd

mem., 802 F.2d 459 (6th Cir. 1986).........19

Ohio Civil Rights Comm'n v. Dayton

Christian Schools, Inc., 106 S.Ct. 2718

Tu 0.6646666400 65 6666606064600 43, 46, 56

People v. Woody, 394 P.2d 813 (Cal.

1 Dec ceceeeeececcceeeeeeeeeeeoccoseoesoeoeeee

Rayburn v. General Conf. of Seventh-Da

Adventists, 772 F.2d 1164 (4th Cir. 1585),

cert. denied, 106 S.Ct. 3333 (1986)....14, 20

Reynolds v. United States, 98 U.S. 145

(1 79) cee *e © fe 8 @ se eneteeneeeneee#es#se## sheeeeseocosnnes 4

Rostker v. Goldberg, 453 U.S. 57 (1981)....51

Russell v. Belmont College, 554 F.Supp.

667 (M.D. Tenn. LPErdccccccccccccccccccccceldls

Sangster v. United Air Lines, Inc., 633

Food 864 (9th Cir. 1980), cert. denied,

451 U.S. 971 CL9SlLpccccccccccccccccsccece sO

Seeger v. United States, 380 U.S. 163

C1LFGSS pcccccccccesccecccceccceecceccceseeesedO

Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (197°)......44.. 57

Sherbert v. Verner, 374 U.S. 398

(\°) FFPPPPPPTTTTPTTTTTT Tr TTT rTiiriTrirTs | 56

Sias v. City Demonst¢ating Agency, 588

F.2d 692 (9th Cir. LPF Odccccccccccccceccce sO

Thomas v. Review Board, 450 U.S. 707

(1981)... ceees *e fe @ Sr PrrrrT Te TT eTTTTTTTTTTT. os.

-Yyo

Tony & Susan Alamo Foundation v. Sec'y

of Labor, 105 §.Ct. 1953 (1985)........passim

United States v. Lee, 455 U.S. 252

TNS 6 626060066666000¢00¢0000R0e 31, 38, 58

United States v. Nixon, 418 U.S. 683

( Bpoccccccccccccccccccsccccccccccecceeee DG

Wallace v. Jaffree, 105 S.Ct. 2479

6 PEGE pa» ST ee, ot 37, 48

Walz v. Tax Commission, 397 U.S. 664

(AIO) cccccccccccccccccccccccccccccccs MAIS

Welsh v. United States, 398 U.S. 333

Tt .6e ceed neeeees 60s Seeeebooeneeséouectl

Whitney v. Greater N.Y. Corp. of Seventh-

Day Adventists, 401 F.Supp. 1363

(S.D.N.Y. Decsskdbececeeeteccoccecesoss cell

Wisconsin v. Yoder, 406 U.S. 205

Ts 6666006660606066666s00RC0ee cue 32, 55

Zorach v. Clauson, 343 U.S. 306 (1952).....42

Constitutional Provisions and Statutes:

U.S. Const.:

Amend. I ee veneeee##fee#e#ee#e#ee#e#e#e#e# @ se eveeseene @e#e#ee#e - passim

Establishment ClauSe....++e+e+e+-+DasSsim

Free Exercise Clause. lessees epassim

Civil Rights Act of 1964, Title VII,

42 U.S.C. §2000e, et SOQs se eeeeeeeeees sPassim

42 U.S.C. §2000e-1 (§$702)....+++++-+-passim

42 U.S.C. §2000e-1 C29SEdccccccccecceses 0

42 U.S.C. §2000e-2(e) (lL). cee eecesevcveees 20

42 U.S.C. +. LD rrr TrTrTrTrrrririrt |.

Fair Labor Standards Act, 29 U.S.C. §201,

CE SCG reece secccceseccssecssessssessssessds

Internal Revenue Code:

26 U.S.C. S3309(D) cece eevee eeeeee Dd

Miscellaneous:

H.R. 1746, P.L. 92-261, Committee Print

prepared for the Committee on Labor and

Public Welfare (1972), reprinted in

Legislative History of the Equal

Employment Opportunity Act........++.+.+.-passim

J. Heinerman & A. Shupe, The Mormon

Corporate Empire (1985)........12, 32, 44, 45

Laycock, Towards a General Theory of

the Religion Clauses: The Case of Church

Labor Reiations and the Right to Church

Autonomy [not underlined in brief],

B81 Colum. L.Rev. 1373 (1981)..seeeeeeeeeeee22

M. Larson and C. Lowell, Praise the Lord

For the Tax Exemption (1969).....cceeeeeees 13

M. Larson and C. Lowell, The Religious

Empire CIDTES)cccccccecccccecesceessececeeocoese

L. Levy, The Bstablishment Clause:

Religion and the First Amendment

(1986) .cccccvvcccccccccccccccessseceesseses tO

D. Robertson, Should Churches Be Taxed

(19GB) cccccccccccccccccccececceceseeccocseehe

Fortune Magazine, May 23, 1983, at 22......12

-vii-

New York Times, February 11, 1987, at A20,

Col. De nedbneebeedeesssebeseteseoeeseeeesesne

-viii-

INTEREST OF AMICI cuRIAE!/

This brief amici curiae is submitted,

pursuant to Rule 36.2 of the Rules of this

Court, by the Women's Legal Defense ‘und, the

National Council of Jewish Women, the

National Coalition of American Nuns, and the

Institute of Women Today, and is filed in

support of appellee Arthur Frank Mayson.

The Women's Legal Defense Fund is a non-

profit, tax exempt membership organization

founded in 1971 to provide pro bono legal

assistance to women who have been the victims

of discrimination based on sex. The Fund

devotes a major portion of its resources to

combating sex discrimination in employment

through litigation of significant employment

discrimination cases, operation of an

1/ The parties have consented to the filing of this

brief, and their letters of consent are being filed

with the Clerk of Bhe Court pursuant to Rule 36.2 of

the Rules of this Court.

employment discrimination counseling program,

and agency advocacy before the Equal

Employment Opportunity Commission and other

federal agencies charged with enforcement of

the equal opportunity laws.

The ational Council of Jewish Women

("NCJW") was founded in 1893. It is an

Organization made up of two hundred sections

across the country which are active in

advocacy and community service. NCJW is the

Oldest major Jewish women's organization in

the United States and its members are

volunteers dedicated in the spirit of Judaism

to the advancement of human welfare and the

democratic way of life.

The National Coalition of American Nuns

is a Chicago-based organization of 2,000

sisters from religious orders throughout the

United States. Founded 18 years ago, it is

dedicated to studying, speaking about, and

working for human rights and social justice.

The Institute of Women Today is a

nationwide organization founded fourteen

years ago by Catholic, Protestant, and Jewish

women's groups. It is dedicated to a search

for the religious and historical roots of

women's liberation.

Amici believe that religious

Organizations should not be exempt from Title

VII's prohibition against religious

discrimination when they are engaged in

secular activities. Singling out religious

employers for a special exemption that does

not apply to comparable employers in the non-

profit or profit sector not only has the

effect of preferring religious over other

employers, but also significantly dilutes

Title VII's protections against religious

discrimination, has adverse implications for

the employment rights of women, and impinges

on employees’ free exercise rights.

STATEMENT OF THE CASE

Introduction

Plaintiff Mayson is a building

maintenance engineer in a public gymnasium

owned and operated by the Church of the

Latter Day Saints (“the Church") .2/ Because

of a broad, prophylactic exception carved out

by Congress to Title VII of the Civil Rights

Act in 1972, and an analogous exception under

Utah law, the Church claims it was legally

entitled to require Mayson to choose between

his religious beliefs and his job. But it is

clear that, in granting statutory exemptions

or any other legal entitlement, government

may not burden the free exercise rights and

interests of some in a constitutionally

unnecessary attempt to accommodate the

religious interests of others. It is

2/ Reference to the Church includes the Corporation of

the Presiding Bishop of the Church of Jesus Christ of

Latter-day Saints and the Corporation of the President

of the Church of Jesus Christ of Latter-Day Saints.

-4-

irrelevant that a religious institution, and

not the state, caused the harm to Mayson; the

statutory exception itself, carving out

different rules based solely on the religious

status of the employer, demonstrates that

this case involves more than merely private

conduc... And the direct impact of the

exemption on the free exercise rights of

individuals like Mayson distinguishes the

case from those involving free exercise

Claims which have no such effect. Compare

Estate of Thornton v. Caldor, Inc., 105 S.Ct.

2914 (1985) (impact of statute on non-

believers violates Establishment Clause) with

Wisconsin v. Yoder, 406 U.S. 205 (1972) (no

impact on identifiable non-believers).

Appellants’ arguments, relying on the

free exercise interests of the Mormon Church,

and viewing the case as involving only

private conduct, ignore the fact that any

benefits accruing to the Church are obtained

in reliance on the statutory exemption and

are received only at the cost of Mayson's

free exercise rights.

Statement of the Facts

This case involves a church which,

although not compelled to do so by its

religious doctrine, has elected to own and

operate a public gymnasium. The Deseret Gym

("Gym") solicits membership from the public

at large, 549 F.Supp. at 801,2/ through

advertisements which do not refer to any

religious affiliation, R.Xl at 42-44.4/

Nothing about its operation suggests a

religious character. In addition to

traditional gymnasium facilities, this gym

also offers many features of a modern health

3/ References to 54° F.Supp. 791 (D. Utah 1984), and

618 F.Supp. 1029 (D. Utah 1985), are to the published

district court opinions in this case.

4/ Citations to the record are to the volume number

and page.

club or spa: barber and beauty shops,

massage salons, and a snack bar. 594 F.Supp.

at 801. Smoking is permitted in certain

areas, id., even though religious doctrines

of the Church prohibit tobacco for Church

members, Brief For Appellants in No. 86-179

at 4n.7 ("C.P.B. Brief"). The Gym has a

history of employing non-Mormons and

unobservant Mormons and continues to employ

Gulmast Khan, a non-Mormon, as squash

instructor and manager of the pro shop. R.

II at 123; XI at 57, 162-63; III at 135-36.

Appellee Mayson was employed for sixteen

years as a building maintenance engineer at

the Gym. R.II at 121. There is no dispute

that he pt ormed his duties in a fully

Satisfactory, if not admirable, fashion. See

594 F.Supp. at 796, 802. His job entailed no

religious duties, id. at 802, and no

religious criteria had ever been imposed on

Mayson until 1980, when he was informed that

he would be terminated if he failed to

qualify for a “temple recommend. "3/ Mayson,

a Mormon, objected to these requirements

that, among others things, he attend church

every Sunday and pay ten percent of his gross

income as a tithe to the Church. He was

fired when he refused to comply. 594 F.Supp.

at 796.

Mayson filed charges of religious

discrimination and subsequently filed suit

under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e, et seg., as amended

("Title VII"). The Church moved to dismiss

or in the alternative for summary judgment,

on the ground that the challenged employment

practices were exempt pursuant to §702, 42

3/ Temple recommends are given only to members who

tithe, attend church regularly, and abstain from

coffee, tea, alcohol and tobacco. C.P.B. Brief at 4

n.?. The Church concedes that conditioning employment

on temple recommends is not based on religious belief;

instead, the requirement is merely “administratively

convenient.” Id.

U.S.C.§2000e-1, which provides, in pertinent

part:

This subchapter shall not

apply ... to a religious

corporation, association,

educational institution, or

society with respect to the

employment of individuals of a

particular religion to perform

work connected with the

carrying on by such

corporation, association,

educational institution, or

society of its activities.

Mayson principally contended that, as applied

to him, the exemption violated the

Establishment Clause because it had the

effect of establishing or endorsing religious

employers in their secular activities, while

burdening his free exercise rights because it

forced him to make a choice between his job

and his beliefs.

On the basis of uncontested facts and

affidavits, the district court made a factual

finding that the Gym's “primary function is

to provide facilities for physical exercise,"

and that “nothing in the running or purpose

-9-

of [the Gym] suggests that it was intended to

spread or teach the religious beliefs and

doctrine and practices of sacred ritual of

the Mormon Church or that it was intended to

be an integral part of church

administration.” 594 F.Supp. at 800-01. The

court also found that none of Mayson's duties

was even tangentially related to any

religious belief or ritual of the Mormon

Church. Id. at 802. It therefore concluded

that there was no evidence to even “remotely

suggest” that a religious tenet of the Mormon

Church necessitated Mayson's termination. Id.

at 818.9/

Pursuant to these factual findings, the

district court held that no free exercise

rights of the Church were implicated in this

6/ In this connection, the court also noted that in an

application for a broadcasting license, the Church had

represented its belief to the F.C.C. that “it is

‘morally evil’ to deny anyone the right to

employment...." In re Chronicle Broadcasting Co., 59

F.C.C.2d 335, 337 (1976). 594 F.Supp. at 818.

-10-

case and that no constitutional injury would

result if the exemption from general

employment discrimination prohibitions did

not apply to Mayson's termination. The lower

court then held that application of the

exemption to Mayson would have a constitu-

tionally impermissible effect of establishing

religion, and ordered judgment for Mayson,

including back pay. The Church did not

Oppose his reinstatement. 618 F.Supp. at

1029.

The Church essentially contended in the

court below, as in this Court, that its

pervasive religious doctrine infuses all its

actions with religious significance and

justifies the expansive exemption granted by

§702. While there is no doubt that the

Church and its adherents are fully entitled

to a belief in the inseparability of the

religious and the secular, the implications

of this contention reach far beyond the

-ll-

private sphere of belief and worship

protected by the Free Exercise Clause. The

Church is involved in a variety of activities

which are ordinarily undertaken by secular,

profit-making organizations, including radio

and television broadcasting, commercial real

estate, stock and bond investing, insurance

underwriting, and agriculture. J. Heinerman

& A. Shupe, The Mormon Corporate Empire, 46-

125 (1985). In 1983, total assets of the

Church were estimated to be 7.89 billion

dollars.2/ As the largest private property

owner and one of the largest employers in

1/ 5. Heinerman & A. Shupe, supra, at 125 (1985). The

Mormon Church would thus rank thirty~second in assets

on the list of "Fortune 500" industrial companies,

ahead of Xerox Corporation, which had 7.66 billion

dollars of assets on December 31, 1982. Fortune

Magazine, May 23, 1983, at 22. Although the Mormon

Church is obviously one of the "world's ... most

economically prosperous religious organizations,” N.Y.

Times, February 11, 1987, at 20, col. 3, some other

religious sects similarly have the wealth and

inclination to acquire substantial pieces of the

secular economy. See generally M. Larson & C. Lowell,

The Religious Empire (1976); D. Robertson, Should

Churches Be Taxed, 113-38 (1968).

-12-

Utah, the Church's extensive economic

interests give it substantial control over

the economic life of the state. Id. at 92,

122; M. Larson & C. Lowell, Praise the Lord

for Ta Exemption, 203-09 (1969). The claim

for exemption thus implicates large numbers

of jobs with no religious content, except

that invested by virtue of the Church's

belief that religion should pervade its

members' lives.

SUMMARY OF ARGUMENT

Had Mayson been employed by any other

public gymnasium, unaffiliated with a church

entity, his termination for failure to meet a

religious test of faith would assuredly

violate Title VII. That Act was intended to

provide comprehensive protection against

employment discrimination. Indeed, as

revealed in the Congressional debates over

both the current exemption, at issue in this

-l|3-

case, and its predecessor, an exemption from

coverage for religious employers was promoted

as constitutionally necessary to meet the

free exercise interests of such employers.

It is incontrovertible that religious

employers engaged in religious activity have

such interests which, even without a

statutory exemption, are entitled to

extraordinary deference under First Amendment

standards. See, e.g., Rayburn v. General

Conf. of Seventh-Day Adventists, 772 F.2d

1164 (4th Cir. 1985), cert. denied, 106 S.Ct.

3333 (1986). However, religiously-affiliated

employers who undertake activities that have

little or no relationship to spiritual or

ecclesiastical concerns occupy a vastly

different position with regard to any attempt

to be relieved of the obligations imposed on

all other similar employers.

If the Catholic Archdiocese of New York

purchased the New York Yankees, would it be

-14-

entitled to fire all players who are not

Catholic, or those Catholics who do not

attend mass? The answer of the Mormon Church

in this case would be yes. But it is clear

that the First Amendment affords no such

right and equally clear that the architects

and enacters of the Title VII exemption did

not contemplate its use in such a fashion.

See Point I, infra. Even if they had, it

would still be the province of this Court to

hold that such a constitutionally unnecessary

preference to religion results in both an

impermissible establishment of religion and

in the denial of free exercise rights of

individuals, like Mayson, suffering from

religious discrimination. The effects of the

exemption on third parties, like Mayson,

create an insuperable Establishment Clause

barrier to application of the exemption in

this situation, Estate of Thornton v. Caldor,

Inc., supra, and other financial and symbolic

-15-

effects indicate that the exemp..on operates

here to benefit and endorse religion. Tony

and Susan Alamo Foundation v. Sec'y of Labor,

105 S.Ct. 1953 (1985). See Point IIA, infra.

Application of the exemption to secular

employment by religiousiy-affiliated

employers will not entangle government in

religious matters, since secular employment

by definition is not a religious matter. The

determination as to what is secular and what

is religious does not create an “entangle-

ment” problem within the meaning of the

Establishment Clause. It is the function and

duty of courts and agencies, not unreviewable

religious bodies themselves, to determine

entitlements to exemptions and constitutional

protections. That process inevitably

necessitates an initial separation of the

religious from the secular. This is the very

essence of First Amendment jurisprudence and

creates no entanglement problems as evidenced

-16-

by the numerous and various circumstances in

which this Court has undertaken and upheld

such inquiries. See Point IIB, infra.

. The district judge was well within his

discretionary power to award Mayson a “make-

whole” back pay remedy. The award was not

punitive but simply provided Mayson with

wages actually lost as a result of his

discriminatory termination. Its payment

could cause no hardship to the Church, but

its denial could severely affect Mayson. See

Point III, infra.

-l17-

I. THE RELIGIOUS EMPLOYER'S EXEMPTION UNDER

TITLE VII WAS NEVER INTENDED TO

AUTHORIZE THE KIND OF DISCRIMINATION

WHICH OCCURRED IN THIS CASE, AND THE

EMPLOYER IN THIS CASE HAS NO

CONSTITUTIONAL ENTITLEMENT TO AN

EXEMPTION FROM FEDERAL ANTI-

DISCRIMINATION LAW

A. The Exemption For Religiously-

ated Employers Was Never

on platec To Apr . earl

Non-Religious Emplo nt in

Public Gymnasium Mere cause A

Church Owns The Facility

Title VII embodies a national policy to

repudiate and eradicate the historical

tolerance of discrimination in private

employment on the basis of race, color, sex,

national origin, and religion. &/ Although

8/ For this reason, the Church's repeated invocation

of the “first 175 years of our nation's history,”

(C.P.8. Brief at 12, 16, 41) is of Little moment in

this case, even though an “unambiguous and unbroken”

historical practice has been sometimes important in

the Court's Establishment Clause adjudication, Marsh

v. Chambers, 463 U.S. 783, 792 (1983); see Walz v. Tax

Commissioner, 397 U.S. 664, 678 (1970). Cf. Bob Jones

University v. U.S., S61 U.S. 574, 604 (1983) ("the

Government has a fundamental, overriding interest in

eradicating racial discrimination in education--

discrimination that prevailed, with official approval,

(footnote cont'd)

-l18-

religious employers, like otHer employers,

are covered by Title VII's general

prohibitions against discrimination on the

basis of race, color, sex or national

origin, 2/ Congress recognized that they

required certain accommodation to their

legitimate religious concerns and

accomplished this in various ways. The

statute originally exempted employees of a

religious employer performing “work connected

for the first 165 years of this Nation's

Constitutional history").

9/ £.5., E.£.0.C. v. Fremont Christian School, 781

F.2d 1362 (9th Cir. 1986); £.£.0.c. v. Pacific Press

Pub. Ass'n, 676 F.2d 1272 (9th Cir. 1982); E.£.0.c. Ve

Southwestern Baptist Theological Seminary, 2d

th Cir. ), cert.denied, 4 U.S. 905 (1982);

E.E.0.C. v. Mississippi College, 626 F.2d 477 (Sth

Cir. 1980), cert. den ed, 4 U.S. 912 (1981); Ninth &

© Street Baptist Church v. E£.£.0.C., 616 F.Supp. 1231

W.D. Ky. ), aff'd mem., 802 F.2d 459 (6th Cir.

1986); Dolter v. Wahlert High School, 483 F.Supp. 266

(N.D. Iowa ; tney v. Greater N.Y. Corp. of

Seventh-Day Advent sts, Supp. ~D.N.Y

1975); see Russell v. Belmont College, 554 F.Supp. 667

(M.D. Tenn. 1982) (Equal Pay Act); cf. McClure v.

Salvation Army, 460 F.2d 553 (Sth Cir. 1972). These

cases reject the employers’ contentions that

application of Title VII to religious employers

violates the Religion Clauses of the First Amendment.

-19-

with the carrying on ... of its religious

activities.” 42 U.S.C. §2000e-1 (1964)

(emphasis added). Title VII also permits

such employers to use religious criteria in

their hiring practices whenever such criteria

could be justified as a “bona fide

occupational qualification reasonably

necessary to the normal operation of that

particular business or enterprise..." 42

U.S.C. §$2000e-2(e)(1).12/ In addition, the

lower courts have uniformly declined to

enforce Title VII standards to regulate the

relationship between a church and its

ministers or employees performing minister-

like responsibilities. 1!/

10/ The Church has never claimed that religion is a

BFOQ for the job at issue in this case. Arguably, the

BFOQ provision provides the only defense for the

Church's discrimination against Mayson, since the

exemption entitles them only to hire persons “of a

particular religion,” a qualification Mayson meets.

hi/ See Rayburn v. General Conf. of Seventh-Day

Adventists, supra; McClure, supra.

-20-

In 1972, the exemption for religious

employers was expanded by permitting them to

employ persons “of a particular religion” in

any of their activities. The exemption

evolved from debates and proposals which

focused largely on a comprehensive exemption

for schools and religious employers.

Amendment No. 815 to $.2515,12/ proposed by

Senators Ervin of North Carolina and Allen of

Alabama would have exempted schools and

religious organizations from all of Title

VII's requirements. The sponsors of the

amendment claimed that it was constitution-

ally required. Senator Ervin repeatedly

adverted to the necessity to maintain a “wall

of separation” between church and state, Leg.

Hist. at 1217, 1221, 1231, and to keep the

“political hands of Caesar” off all religious

12/ un. 1766, P.L. 92-261, Committee Print prepared

for the Committee on Labor and Public Welfare (1972),

reprinted in Legislative History of the Equal Employ-

ment Opportunity Act (hereafter “Leg. Hist."), p. 881.

-2l-

institutions. See, e.g., id. at 1230.

Senator Allen likewise characterized the

amendment as constitutionally necessary: “the

constitutional standard is separation of

church and state. And so far as interference

with the ‘free exercise’ of religion, the

separation must be full and complete. The

first amendment prohibition is absolute.” Id.

at 1255.13!

Notwithstanding the claim that this

comprehensive exemption was constitutionally

required, the Senate rejected it by a vote of

55 to 25. Subsequently, the same sponsors

offered another amendment, No. 809, which

contained a substantially narrower exemption

and was adopted as §702 with little

13/ sen. Allen was also particularly concerned about

the impact of the Civil Rights Act on Southern

schools. See Leg. Hist. at 853, 1254.

-22-

debate.14/ as a result, the legislative

history, which is largely limited to the

remarks of four senators, 15/ and which

primarily addressed the comprehensive

exemption for all schools and religious

employers and See all forms of discrimina-

tion, indicates little about the purpose of

most legislators in accepting the narrower

provision. What is clear from the debates

was that the sponsors of the exemption urged

it upon fellow legislators on the theory that

it was constitutionally compelled. Clearly,

the majority did not concur with regard to

total exemption; it is unclear whether

Amendment No. 809 was adopted because of

14/ Virtually all the legislative history cited by

appellants addressed the comprehensive amendment, No.

815, which was not enacted.

i5/ Senators Ervin spoke at length and quoted lengthy

Opinions of this Court; Senator Allen spoke in general

concurrence with Sen. Ervin. The sponsors of the

bill, Sens. Williams and Javits, asked a few

questions. Senator Stennis made a brief statement in

Opposition.

-23-

perceived First Amendment requirements or

because of political compromise or other

reasons.1&/ The debates display little or no

recognition that establishment problems or

free exercise concerns of employees might be

implicated by an overly-solicitous accommoda-

tion for religious employers.?/ Thus, the

debates do not reflect how Congress would

have balanced competing commands of the two

Religion Clauses. Indeed, there was no

16/ the assertion in appellants’ briefs, C.P.B. Brief

at 23, U.S. Brief at 21-22, that Congress may

accommodate religion in ways which exceed the

requirements of the Free Exercise Clause, as an

abstract proposition, is not at issue here. There is

no indication in the legislative history that that was

the Congressional intent. While the proposition that

accommodation may exceed free exercise rights may be

generally true, it is, of course, not the case when

that accommodation burdens free exercise rights of

individuals and effectuates an establishment of

religion. See Point IIA, infra.

17/ senator Williams alone acknowledged that “it might

very well be unconstitutional for Congress to permit

such discrimination,” referring to exempting

religiously-affiliated public hospitals. Leg. Hist.

at 1250. See also id. at 852 (similar comment by Sen.

Williams in discussion of Amendment No. 809).

-24-

recognition that a religious employer might

receive “unnecessary” benefits, tantamount to

establishment, or that such an employer might

use the exemption so as to deprive employees

of their own rights of conscience. 18/

Appellants posit that §702 was expanded

in order to prevent entanglement of the EEOC

and trial courts in determinations as to what

constitutes "religious activity." This was

18/ Senator Ervin expressed his opinion that churches

and religious employers were constitutionally entitled

to complete exemption for their hiring activities,

even for positions such as secretary or janitor. Leg.

Hist. at 1223. The Senate rejected this proposition

when it voted against the comprehensive amendment and

voted to continue to impose the prohibition against

race, national origin and sex discrimination. Even if

this were not the case, the examples cited by Senator

Ervin all involve actual employment by a church in its

own usual activities (maintenance of church property

and church fundraising). Nowhere in the legislative

history of Amendment 609 is there a recognition of the

possibility that churches might venture into

activities which, as a result of history, tradition

and common sense, can only be called secular. The

closest example is Sen. Ervin's statement that he

would exempt a distillery operated by a religious

order. Leg. Hist. at 1230. This comment likewise

occurred in discussion of Amendment No. 815, which was

rejected.

-25-

not a Congressional purpose, 12/ nor has this

kind of inquiry proved troublesome or entan-

gling in fact. Judges and administrative

personnel are frequently required to

determine whether an activity is religious

and therefore entitled to regulatory,

statutory or constitutional protections.

That inquiry is not only permissible, it is

the very essence of First Amendment

jurisprudence. Cf. Ohio Civil Rights Comm'n

v. Dayton Christian Schools, 106 S.Ct. 2718

(1986). |

Title VII caselaw displays the relative

ease with which constitutional parameters in

this area can be, and have been drawn. The

courts have evaluated claims for exemption

arising in a variety of contexts. For

19/ there is no reference in the legislative history

to any actual entanglement problems arising from EEOC

investigations or court cases. Prior to 1972, the

only reported decision analyzing §702 was McClure v.

Salvation Army, supra.

example, in E.E.0.C. v. Southwestern Baptist

Theological Seminary, supra, the court

carefully distinguished between those

employed by a seminary who performed

“minister-like” functions and those (such as

support and administrative staff) who did

not. 651 F.2d at 283-85. Indeed, the court

found no First Amendment obstacle to

requiring a church seminary to comply with

relevant Title VII data compilation and

reporting requirements for non-ministerial

positions, even though the seminary had a

demonstrated preference for having ordained

ministers perform such functions. In

E.E.O.C. v. Mississippi College, supra, the

Fifth Circuit concluded that the "ministe-

rial” exemption did not extend to all

teachers at a religious college, whose

employment was not strictly a matter of

“ecclesiastical concern." 626 F.2d at 485.

And in E£.E.0.C. v. Pacific Press, Supra, the

-27-

Ninth Circuit easily concluded that a

secretary at a religious book publishing

house was covered by Title VII. In these and

other Title VII cases, the courts have

emphasized the absence of any Establishment

Clause obstacle to the limited involvement in

religious affairs that the exercise of EEOC

“jurisdiction” ordinarily entails. Each

court concluded that, although applying Title

VII in such contexts requires some church-

state contact, there was no excessive

entanglement involved in the record-

keeping20/ and single-incident investigations

that are the most Title VII enforcement

ordinarily requires.

20/ this Court recently held that similar or greater

record-keeping and reporting requirements of the Fair

Labor Standards Act do not generate undue church-state

entanglement. Tony and Susan Alamo Foundation v.

Sec'y of Labor, supra.

These and other cases2!/ indicate that

courts and agencies may, and routinely do,

separate the religious from the secular and

evaluate claims of religiously-affiliated

employers for exemption from laws and

regulations. This process in the Title VII

area in particular does not create excessive

entanglement problems. No such concern

motivated Congress to enact the exemption at

issue here, nor, contrary to what the Church

urges, would it justify an application of the

exemption that has other constitutional

infirmities.

21/ See Point IIB, infra, for a review of ot»er areas

in which courts and agencies examine religious

exemption claims without problems of excessive

entanglement by government in religion.

-29-

B. The Record In This Case Is Devoid

Of Any Evidence That A Free

Exercise Right Of The Church Will

Be Violated If Federal Anti-

Discrimination Law Is Applied To

Mayson's Dismissal

“(T]he Free Exercise Clause's protection

of religious beliefs and of the Church as an

institution," C.P.B. Brief at 18, does not

require an exemption from Title VII's

prohibition of religious discrimination in

this case. The Free Exercise Clause's

protection for churches is broad but not

unlimited. See U.S. v. Lee, 455 U.S. 252,

257 (1982). It encompasses the Church's

freedom to carry on religious activities, to

build churches and schools, conduct worship

services, pray, proselytize, teach moral

values, select its own leaders, define its

own doctrines, resolve its own disputes, and

run its own religious institutions. 22/ In

22/ See Laycock, Towards a General Theory of the

Religion Clauses: The Case of Church Labor Relations

and the Right to Church Autonomy, 81 Colum. L. Rev.

(footnote cont'd)

-30-

tt ri

essence, the focus of the Free Exercise

Clause is on the right of the Church to

interact with its adherents on matters

relating to religion without state inter-

ference. The Free Exercise Clause does not

require that "doctrines of religious belief

[be] superior to the law of the land,"

Reynolds v. U.S., 98 U.S. 145, 25 L.Ed. 244,

250 (1879), and when a religious organization

chooses to engage in “commercial activity,"

it must ordinarily follow the "statutory

schemes which are binding on others in that

activity." U.S. v. Lee, 455 U.S. at 261.

The district court found that there was

no evidence to even "remotely suggest that

the Mormon Church holds any religious tenet

that requires all persons employed by its

corporate entities in secular, non-religious

activities to be templeworthy Mormons." 594

1373, 1388-1389 (1981) and cases cited therein.

-3l-

F.Supp. at 818. 23/ a preference for

employing observant Mormons may well be

"consistent" with the Church's beliefs,

C.P.B. Brief at 20, but that falls far short

of a claim that such a practice is compelled

by sincere religious conviction. It is only

the latter situation which is entitled to

deference under the Free Exercise Clause.

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)

("to have the protection of the Religion

Clauses, ... claims must be rooted in

religious belief"); Tony and Susan Alamo

23/ The absence of any Church doctrine that compels

religious preference hiring at the Gym is manifested

by the thin evidence put forth by the Church. In its

attempt to imbue the Gym with a religious aspect, the

Church primarily relies on the 1910 dedicatory

prayer. C.P.B. Brief at 7. To support its doctrine of

individual selt-sufficiency, the Church cites a 1936

Church Conference Report. Id. at 5. It is noteworthy

that 1936 was an election year and that supporters of

Alf Langdon used the just-announced Mormon plan of

individual self-sufficiency, with its concomitant

emphasis on refusal to accept government welfare

benefits as a campaign tactic against the New Deal's

government assistance programs. J. Heinerman & A.

Shupe, supra, at 185.

-32-

Foundation v. Sec'y of Labor, 105 S.Ct. at

1963 (constitutional protection dependent on

whether government “actually burdens the

Claimant's freedom to exercise religious

rights").

The Church has never asserted this type

of claim, 594 F.Supp. at 818, nor would such

an assertion be persuasive. The Gym

advertises without reference to its religious

affiliation and it attracts both Mormons and

non-Mormons. Patrons at the Gym may engage

in conduct of which the Church disapproves on

religious grounds, such as smoking. See 594

F.Supp. at 801. The Gym has a history of

employing non-Mormons and unobservant

Mormons; the imposition or enforcement of the

requirement in 1980 that Mormon employees be

eligitle for a "temple recommend," was a

Clear departure from prior practice which was

not supported or explained by reference to

any doctrinal developments which necessitated

-33-

this change in the Gym's employment

practices. Nowhere does the Church suggest

that its members must attend the Gym, that

such attendance constitutes a religious act,

or that any religious significance gym

attendance may have is destroyed or

diminished by the presence of non-Mormon

employees or employees ineligible for a

“temple recommend." See 594 F.Supp. at

801. Indeed, as the district court found,

the record lacks any evidence or explanation

of its policy which would qualify it as a

sincerely and deeply held religious

conviction entitled to First Amendment

protection.

-34-

II. THE TITLE VII EXEMPTION FOR

RELIGIOUS EMPLOYERS AS APPLIED TO A

BUILDING MAINTENANCE ENGINEER IN A

PUBLIC GYMNASIUM VIOLATES THE

ESTABLISHMENT CLAUSE AND ADVERSELY

AFFECTS THE EMPLOYEE'S RIGHT TO

FREEDOM OF CONSCIENCE

Tne Court has consistently accommodated

both the “autonomy and freedom of religious

bodies while avoiding any semblance of

established religion," Walz v. Tax

Commission, 397 U.S. at 672, by examining a

statute's purpose, determining that its

principal or primary effect is neither to

advance nor inhibit religion, and assuring

that the statute does not foster an excessive

government entanglement with religion. Lemon

v. Kurtzman, 403 U.S. 602, 612-13 (1971); see

Walz v. Tax Commission, 397 U.S. at 669, 24/

24/ The Lemon factors have been used by this Court as

guidelines in at least 15 First Amendment cases. The

only departures are in Marsh v. Chambers, supra (two

centuries of an unbroken and unambiguous historical

practice) and Larson v. Valente, 456 U.S. 228 (1982)

("strict scrutiny’ standard applied to a statute which

was patently discriminatory on its face).

-35-

The purpose of any Congressional attempt

to accommodate religion is obviously

religious to some extent, see Wallace v.

Jaffree, 105 S.Ct. 2479, 2504 (1985)

(O'Connor, J., concurring); but that is not

enough to render a statute unconstitu-

tional. Neither is it true, however, that

every legislative attempt to accommodate

religion must be deemed, because the purpose

is laudable, to be per se constitutional.

Rather, “(t]he solution ... lies ... in

identifying workable limits to the govern-

ment's license to promote the free exercise

of religion." Id. Where, as here, the

legislature exempts only religious entities

and exceeds what was necessary to accommodate

their legitimate free exercise interests, and

the effect is to advance or endorse religious

activities at the expense of the individual's

freedom of conscience, fundamental Establish-

ment Clause principles are affronted.

-36-

A. The Exemption Is Unconstitutional

Here Because Of Its Effects On

Mayson's Freedom Of Conscience And

The Advantages Flowing To The

Church

l. The Effect on Mayson's Right to

Freedom of Conscience

This Court has on several occasions

"identified the individual's freedom of

conscience as the central liberty that

unifies the various clauses in the First

Amendment." E.g., Wallace v. Jaffree, 105

S.Ct. at 2487. As the facts of this case

demonstrate, §702 enables employers to coerce

religious loyalty from their employees in

violation of fundamental First Amendment

Principles. Jefferson's famous "Bill for

Religious Liberty," enacted in slightly

different form by the Virginia Legislature in

1786, declared that “even forcing [any man]

to support this or that teacher of his own

religious persuasion” offends an individual's

right to freedom of conscience.22/ Mayson

was told he would lose his job unless he

attended church and paid a tithe. See, €-q-,

Affidavit of Arthur Mayson, dated August 16,

1983. A religious employer's ability to

coerce employees into religious observance

through a religion-conscious statutory

exemption constitutes an unconstitutional

effect. See United States v. Lee, 455 U.S.

at 261.

Only last year this Court held that a

statute which has a similar impact on third

parties has the effect of impermissibly

advancing religion. Estate of Thornton v.

Caldor, Inc., supra. Section 702

distinguishes between religious and

nonreligious employers and employees and in

so doing, seriously burdens the non-

25/ Cited in Everson v. Board of Education, 330 U.S.

1, 13 (1947); See L. Levy, The Establishment Clause:

Religion and the First Amendment, 53-94, 58-60 (1986).

-38-

religicus. Thornton teaches that religion

may not be accommodated in an absolute manner

that burdens others; when "[t]the State ...

commands that ... religious concerns

automatically control over all secular

interests at the workplace," the Establish-

ment Clause is violated. 105 S.Ct. at 2918.

The statutory infirmities recognized in

Thornton are present here as well. That

statute granted concrete benefits and

preferred status to Sabbath observers, over

all others. As a result, employees may well

have been induced to become Sabbath observers

in order to obtain this benefit, but those

who, out of conscience, refused would be

penalized in having their needs for time off

considered last. Similarly, many of the

Church's employees may well have yielded to

the pressure to become "templeworthy" simply

to keep their jobs. Those, like Mayson, who

resisted as a matter of personal conscience,

-39-

have suffered loss of employment, an even

more severe consequence than could have

flowed from the Connecticut statute. Section

702 compounds the injury by granting

preferences to religious employers, as

well. They, like the Sabbath observers,

enjoy a preferred status from which they reap

concrete financial and competitive

advantages. See Point IIA-2, infra.

This Court has upheld religious

exemptions from laws of general applicability

only when the exemption does not burden the

religious liberty of others. Walz v. Tax

Commission, supra; Gillette v. United States,

401 U.S. 437 (1971). While the exemption for

non-profit organizations at issue in Walz may

have required all non-exempt taxpayers col-

lectively to shoulder additional tax burdens,

it did not infringe their religious liber-

ties. Similarly, upholding military service

exemptions in Gillette for individuals with

-40-

religious or moral objections to war had no

effect on the religious liberty of individ-

uals with no such beliefs.

2. The Exemption Gives Religious

Organizations Advantages Over Non-

Religious Employers In The Secular

Economy

As a direct result of the exemption for

religious organizations, the Church is

empowered to extract from employees

substantial economic concessions. One of the

reasons for Mayson's termination was his

noncompliance with the Mormon Church's

tithing requirement. There is no question of

the Church's right to impose a tithing

requirement--or any other requirement--on

freely-consenting members. However, the

ability to coerce the return of ten percent

of an employee's gross income gives church-

owned businesses an obvious competitive and

financial advantage over non-religiously-

owned ones. As this Court noted in Tony &

Susan Alamo Foundation v. Sec'y of Labor,

-4l1-

supra, 105 S.Ct. at 1961, "the payment of

substandard wages would undoubtedly give

petitioners and similar organizations an

advantage over their competitors ... and the

admixture of religious motivations does not

alter a business's effect on commerce."

A statutory exemption which empowers

employers to coerce obedience through

economic threats offends a fundamental

constitutional principle. The First

Amendment is premised on the notion that each

religion will succeed, not as a result of

government pressures or inducements but on

the intrinsic appeal of its beliefs to people

who are free to choose. “We sponsor an

attitude on the part of Government that...

lets each [religious group] flourish

according to the zeal of its adherents and

the appeal of its dogma". Zorach v. Clauson,

343 U.S. 306, 313-14 (1952). This premise is

undermined if secular employment becomes a

reward for the faithful. The potential for

such abuse is apparent. See Ohio Civil

Rights Comm'n v. Dayton Christian Schools,

Inc., supra; Tony & Susan Alamo Foundation v.

Sec'y of Labor, supra. Section 702 would

expand the coercive powers of such employers.

For example, the tithing requirement could

reduce a minimum wage employee's wages below

the statutory level. This may constitute an

impermissible delegation of legislative

authority, see Larkin v. Grendel's Den, Inc.,

459 U.S. 116 (1982), and would subvert this

Court's ruling in Alamo. Even if the

violation does not rise to that level, the

examples demonstrate the power accorded

religious employers under the exemption, a

power denied other similarly situated

employers. 26/

26/ The relative infrequency of cases like this one

suggests that either the coercive power granted

employers is highly successful, or that religious

employers voluntarily forbear trom exercising that

(footnote cont'd)

-43-

The Church obtains approximately three-

quarters--an estimated 1.5 billion dollars in

1983--of its income from the tithing require-

ment. J. Heinerman & A. Shupe, supra, at

102. Enforcement of that requirement is

critical to the Church's continued economic

growth. The §702 exemption thus gives this

and other religious employers a powerful tool

to expand their influence into secular

economic activity, and correspondingly the

political and social life of the

community. 22/

The Church's claim that it may not only

discriminate on the basis of religion in all

power, since it is not necessary to their religious

integrity. Some support for this latter proposition

can be found in the fact that thirty-two religious

organizations opposed the Ervin-Allen proposal to

exempt religious organizations from Title VII coverage

altogether. Leg. Hist. at 1253.

27/ the danger is not confined to Utah or to this

Church. Other churches and sects likewise have

extensive economic holdings, or power in a particular

community, and could decide to exercise their rights

if the expansive interpretation of §702 is upheld.

-44-

its employment, but that it may impose

religious criteria, other than membership, on

employees or applicants, would increase the

power of religious employers under §702 ina

way which has particular relevance to the

employment of women. For example, the Mormon

Church actively encourages women to forego

employment in favor of remaining at home to

care for children, 28/ it precludes women from

acting as lay priests,29/ and it provides

that only women whose husbands are members of

the priesthood can enter the highest

heaven. Id. at 227. One member was

excommunicated by the Church in 1979, in part

for her vocal support of the Equal Rights

Amendment and criticism of the Church for its

28/ J. Heinerman & A. Shupe, supra, at 227-29 (women

encouraged in Church literature and by public speeches

of church elders to assume traditional roles).

29/ Id. at 227. All observant male Church members

over the age of 12 can be priests. Until 1978, blacks

were denied entry into the priesthood, as women still

are. Id. at 223.

-45-

opposition. 30/ Just as Mayson was fired for

failing to qualify for a “temple recommend,"

women could be fired from completely secular

jobs for failing to adhere to sex discrimina-

tory doctrines; important secular positions

could be reserved for members of the priest-

hood, by definition male, or for those

eligible to enter the highest heaven, and the

like. Ina state like Utah, a woman's

employment opportunities would thereby be

dramatically limited. If other fundamen-

talist religions took similar advantage of

the broadly stated exemption, the employment

opportunities of women could be significantly

diminished3!/--all in the name of religious

30/ 14, at 201-02.

31/ Some religious employers have already tried to

fire new mothers on a religiously-based assertion that

a mother of young children should not work outside the

home. See Ohio Civil Rights Commission v. Dayton

Christian Schools, supra. Other religious employers

have cited biblical authority that the husband is the

"head of household" to justify denial of fringe

benefits to married female employees, E.E.0.C. v.

(footnote cont'd)

-~46-

freedom, even where an employer has no

constitutionally protectable right. For

example, a nursing home owned by or

affiliated with an Orthodox Jewish temple

could fire nurses who did not participate in

ritual baths.

As in Thornton, the exemption here

Singles out religious groups for special and

absolute protection, and thereby "conveys a

message of endorsement." 105 S.Ct. at 2919

(O'Connor, J., concurring). The exemption

conveys a clear message of government

facilitation and approval of practices which

benefit and advance religion, by coercing

religious loyalty and penalizing non-

believers. The symbolic effects here

Fremont Christian School, 781 F.2d at 1364, and have

cited scriptures to rationalize hiring only males to

teach religion courses, E.E.0.C. v. Mississippi

College, 626 F.2d at 487 & n.12 ("pervasively

sectarian” college owned by Baptist Church). See also

E.E.0.C. v. Pacific Press Pub. Ass'n, 676 F.2d at 1275

(female employees of press owned by Seventh-Day

Adventist Church paid less than male employees).

-47-

contrast sharply to those in Walz v. Tax

Commissioner, supra, where the exemption from

property tax did not single out religious

Organizations, but applied to all non-profit

organizations.

B. Protecting Mayson Against

Discrimination Will Not Cause

Entanglement Problems

The Church proposes that the Lemon

factors be abandoned in exemption cases in

favor of an exclusive focus on entangle-

ment. This unusual suggestion not only lacks

precedent, but also fails to provide any

meaningful “limits to the Government's

license to promote the free exercise of

religion." Wallace v. Jaffree, 105 S.Ct. at

2504 (O'Connor, J., concurring). Under this

approach accommodation of religion would

almost always be upheld, notwithstanding

effects even of a constitutional dimension,

because exemption would almost always be less

entangling than regulation.

-48-

This approach cannot be reconciled with

this Court's precedents. The proposal

presumes that neutral rules which apply to

religious groups, along with everyone else,

are per se entangling and constitutionally

infirm under the Establishment Clause. For

instance, an exemption for religious groups

that believed in human sacrifice from state

criminal laws prohibiting murder would

qualify under the Church's test. But see

Reynolds v. U.S., 25 L.Ed. at 250.

Exemptions for all religious organizations

from minimum wage and other labor laws,

regulations and codes would likewise survive

scrutiny. But see Tony & Susan Alamo

Foundation v. Sec'y of Labor, 105 S.Ct. at

1953.

Second, the Church's novel proposition,

dubbed the "Walz-Gillette Analysis of Express

Exemptions," C.P.B. Brief at 29, follows

neither Walz v. Tax Commissioner, supra, nor

-49-

Gillette v. United States, supra. Although

decided before Lemon, both Walz and Gillette

analyzed the purpose and effect of the

exemption as well as the potential for

entanglement. Walz, 397 U.S. at 669;

Gillette, 401 U.S. at 450. Walz sustained

religious property tax exemptions in large

part because the exemption was not explicitly

based on religion but instead applied to a

“broad class of property owned by nonprofit,

quasi-public corporations...." 397 U.S. at

673. In Walz there was also a long

historical tradition of exempting such

property from property tax. Id. at 676-78.

Moreover, Walz demonstrates that there are no

entanglement problems in confining the

Church's exemption to its religious

activities: "“[I]n Walz, the State had a

continuing burden to ascertain that the

exempt property was in fact being used for

religious worship." Lemon v. Kurtzman, 403

-50-

U.S. at 614 (emphasis added). In Gillette

the Court first found no sectarian purpose

nor effect in a limited conscientious

objector exemption, and only then discussed

potential entanglement problems arising

because of a perceived likelihood of

fraudulent claims, i.e., that it would be

impossible to separate political from

religious objections to a particular war.

The Court also expressed deference to

Congress regarding its management of military

affairs. Cf. Goldman v. Weinberger, 106

S.Ct. 1310 (1986) and Rostker v. Golberg, 453

U.S. 57 (1981) (deference to military).

The Church, in characterizing this as an

"express exemption" case like Walz and

Gillette, as to which it posits that

entanglement considerations must prevail,

attempts to categorize this case and the

Court's precedents in a way which distorts

both. It is telling that the Church has

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failed altogether to cite Estate of Thornton

v. Caldor, Inc., supra, one of this Court's

most recent Establishment Clause cases and

the case most similar in its facts to the

present case. Thornton demonstrates that

entanglement considerations are not

necessarily paramount where accommodation to

religion implicates other protected rights;

where rights of third parties are infringed,

the "effects" element of the Lemon analysis

becomes critical: "this unyielding weighting

in favor of Sabbath observers over all other

interests ... has a primary effect that

impermissibly advances a particular religious

practice.” 105 S.Ct. at 2918.

The Church's suggestion that any First

Amendment exemption challenge should be

resolved so as to produce the least

government entanglement not only ignores the

impact of the exemption on innocent third

parties, see Point IIA-l, supra, but also

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grossly overstates the difficulties

associated with governmental evaluation of

religious claims for exemption. Since at

least 1886, as illustrated by Gibbons v.

District of Columbia, 116 U.S. 404 (1886),

which denied tax exemption to church-owned

land, used not for religious purposes but

rather to produce income, administrative

agencies and courts have routinely

distinguished between religious and secular

activities of religious organizations.

Indeed, the inquiry into whether religious

Organizations are operating in the religious

Or secular realm is performed in a wide

variety of contexts .32/

32/ See, e.g., Tony & Susan Alamo Foundation v. Sec'y

of Labor, supra (applying Fair Labor Standards Act to

commercial activities of religious entity); California

v. Grace Brethren Church, 457 U.S. 393 (1982)

(exemption from unemployment tax under 26 U.S.C.

§3309(b) only when the organization is operated

“primarily for a religious purpose"); Denver Post of

the Nat'l Soc'y of the Volunteers of America v.

N.L.R.B., 732 F.2d 769, 773 (10th Cir. 1984) (NLRB has

jurisdiction over employees of religious hospital that

(footnote cont'd)

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This Court has never held that, for

purposes of determining an entitlement to

exemption under the First Amendment, the mere

inquiry into whether an activity is religious

Or secular by itself constitutes excessive

entanglement. The First Amendment does not

authorize religious organizations to decide

unilaterally that their activities shall be

exempt from government regulation. In this,

as in other closely analogous situations, it

is the province of the courts, not of

unreviewable church-related bodies, to

determine "what the law is." Marbury v.

Madison, 5 U.S. 137 (1803). See also United

States v. Nixon, 418 U.S. 683 (1974)

(jurisdiction of courts, not executive, to

assess validity of claim of executive

privileges) .33/

functions "in essentially secular fashion").

33/ Any other rule would improperly delegate the

authority of the state to church officials. See

Larkin v. Grendel's Den, Inc., supra.

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Indeed, government routinely scrutinizes

claims for religion-based exemptions arising

from a myriad of circumstances without

entanglement problems. See, e.g., Bob Jones

University v. United States, supra (tax

exemption for discriminatory private school);

Wisconsin v. Yoder, supra (claim for

exemption from compulsory high school

attendance); Sherbert v. Verner, 374 U.S. 398

(1963) (exemption claim relating to

unemployment compensation law requiring

claimant to be available to work on

Saturday); Welsh v. United States, 398 U.S.

333 (1970) (conscientious objector claim);

Tony and Susan Alamo Foundation v. Secretary

of Labor, supra (exemption from Fair Labor

Standards Act); People v. Woody, 394 P.2d 813

(Cal. 1964) (exemption from state ban on the

use of peyote). In such cases, when free

exercise objections to facially neutral state

requirements are advanced, courts and

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administrative agencies necessarily inquire

into, and make judgments concerning, the

basis of the constitutional claim. See

Thomas v. Review Board, 450 U.S. 707 (1981)

and Sherbert v. Verner, supra (unemployment

boards); Seeger v. United States, 380 U.S.

163 (1965) (local draft board).

Both N.L.R.B. v. Catholic Bishop, 440

U.S. 490 (1979) and Ohio Civil Rights

Commission v. Dayton Christian Schools,

Supra, indicate that there is no excessive

entanglement in the inquiry into “objectively

ascertainable facts," Alamo, 105 S.Ct. at

1961, that determine entitlement to exemption

(e.g., will regulation infringe a sincerely

held religious belief? what are the counter-

vailing state interests?). Entanglement

concerns may, of course, arise if regulatory

burdens are actually imposed so as to enmesh

courts or agencies in the ongoing religious

activity of an organization, see N.L.R.B. v.

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Catholic Bishop, supra, or in matters of

church @octrine or internal authority

structure. See Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696

(1976) .34/ However, the initial

determination whether an employee is engaged

in a “religious” activity for purposes of

determining whether a statutory or

constitutional exemption should apply is not

per se entangling, as appellants contend.

The alternative they propose is to allow

religious organizations to be entirely self-

policing, a proposition in fundamental

conflict with First Amendment law. E.g.,

34/ Although the Court has acknowledged the abstract

possibility that inquiries arising in the course of

enforcing asserted state jurisdiction "may" impinge on

First Amendment rights, N.L.R.B. v. Catholic Bishop of

Chicago, 440 U.S. at 502, it has never suggested that

state jurisdiction cannot be invoked to inquire

whether jurisdiction may be asserted. Moreover, the

concern expressed in Catholic Bishop regarding the

NLRB's remedial powers is inapposite here. The issue

in this case is the constitutional authority to

determine entitlement and exemption.

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Tony and Susan Alamo Foundation v. Sec'y of

Labor, supra; U.S. v. Lee, supra.

Iil. THE DISTRICT COURT DID NOT ABUSE

ITS DISCRETION IN AWARDING MAYSON

BACKPAY

In Albemarle Paper Co. v. Moody, 422

U.S. 405, 418-421 (1975), this Court

ennunciated a strong presumption in favor of

backpay awards in order to make persons whole

for injuries suffered on account of unlawfu)

employment discrimination. In awarding

Mayson backpay under the dictates of

Albemarle, the district court properly

exercised its equitable discretion to “make

[him] whole.”

The parties have stipulated that Mayson

is entitled to $55,896 in wages, plus pension

contributions. R. VI. at 139-42. Although

this amount is substantial to a building

engineer, it is inconsequential to the

Church, which is blessed with vast resources

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Ao

and in all likelihood has spent nearly that

sum on attorneys’ fees to contest the award.

The Church challenges the back pay award

solely on the ground of its good faith. 32/

However, good faith is not a defense to a4

back pay remedy. Albemarle Paper Co. v.

Moody, 422 U.S. at 422. And the exemption of

section 713 of Title VII, 42 U.S.C. §2000e-

12, applies only to the narrow and carefully

circumscribed circumstances it addresses. In

any event, it was not an abuse of discretion

for the district court to award relief where

no statutory provision precluded it

expressly.

The Church attempts to undermine Title

VII's make-whole mandate by citing City of

Los Angeles Department of Water & Power v.

35/ The Church's good faith argument cannot even

arguably apply to the period after the Court's January

ll, 1984, decision adjudicating the unconstitution-

ality of Mayson's termination. Minimally, Mayson

should at least receive back pay from this date.

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Manhart, 435 U.S. 702 (1978) and Arizona

Governing Committee v. Norris, 463 U.S. 1073

(1983), rare departures from the ordinary

remedial Title VII rule.36/ In both these

cases, however, which involved the unique

circumstance of pension funds, the determin-

ing factor in the Court's ruling was the

devastating effect on innocent third parties,

and in Norris, on state and local govern-

ments, of ordering retroactive relief.

Norris, 463 U.S. at 1105-1106; Manhart, 435

U.S. at 721-23. Here there are no similar

equitable considerations because no third

36/ In the few reported cases amici found in which

individual prevailing plaintiffs like Mayson were

denied backpay, there were independent reasons which

justified denial. Sangster v. United Air Lines, Inc.,

633 F.2d 864 (9th Cir. 1980), cert. denied, 451 U.S.

971 (1981) (upholding district court's decision

denying backpay because plaintiff did nothing to

mitigate damages); Harper v. General Grocers Co., 590

F.2d 713 (8th Cir. 1979) (upholding district court's

denial of backpay because plaintiff failed to

introduce any evidence of loss of earnings); Sias v.

City Demonstration Agency, 588 F.2d 692 (9th Cir.

1978) (remanding for reconsideration district court's

denial of backpay due to failure to mitigate damages).

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——— oe

party will be harmed by Mayson's back-pay

award. Under the abuse of discretion

standard, and to vindicate Title VII's

mandate, Mayson's award should be upheld.

CONCLUSION

For the foregoing reasons, the Court

should affirm the judgment below.

Respectfully submitted,

DONNA LENHOFF*

Counsel of Record

Women’s Legal Defense

Fund

2000 P Street, NW,

Suite 400

OF COUNSEL: Washington, DC 20036

DEBORAH A. ELLIS (202) 887-0364

Attorneys for Amici

Curiae

*®* Thanks are extended to CUNY Law School

students Suzanne S. Donsky and Melvyn L. Meer

for their help in preparing this brief.

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