Appendix — Sports & Health Club, Inc. v. Minnesota ex rel. Gomez-Bethke

85-532.

No.

IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1985

SPORTS AND HEALTH CLUB, INC., d/b/a ST. LOUIS

PARK SPORTS AND HEALTH CLUB, et al.,

Appellants,

Vs.

STATE OF MINNESOTA, By MARILYN E. McCLURE,

and her successor, IRENE GOMEZ-BETHKE, Commis-

sioner, DEPARTMENT OF HUMAN RIGHTS,

Respondent.

On Appeal from the Supreme Court of Minnesota

APPENDIX TO THE APPELLANTS’

JURISDICTIONAL STATEMENT

CLYDE F. ANDERSON

STEVEN D. JAMAR

2250 IDS Center

80 South Eighth Street

Minneapolis, Minnesota 55402

(612) 338-0661

Of counsel:

LAURA S. UNDERKUFFLER

1985—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506

APPENDIX INDEX

Appendix A—Opinion of the Minnesota Supreme Court,

TU NE Rc a 6S slewe ev ieee ethene bees A-1

Appendix B—Findings of Fact, Conclusions of Law,

Orders and Memorandum of the Hearing Examiner

GE PAE SBD 6 ko che bee dsneecneepes A-72

Appendix C—Letter dated May 9, 1984, from Hearing

Examiner with Corrections to April 26, 1984, Find-

ings, Conclusions, Order and Memorandum ....A-205

Appendix D—Order of the Hearing Examiner Certify-

ing classes and directing notice to potential class

members, dated April 27, 1984 .............. A-212

Appendix E—Orders and Memorandum by Hearing

Examiner dated May 1, 1984, regarding Motion to

Stay Effect of Hearing’s Examiner’s Orders..... A-227

Appendix F—Order of Minnesota Court of Appeals

dated May 18, 1984, denying Motion to Stay Effect

of Hearing Examiner’s Orders ...............: A-238

Appendix G—Order of the Minnesota Court of Appeals

dated May 21, 1984, granting Motion to Stay Effect

of Hearing Examiner’s Orders ............... A-241

Appendix H—Order of the Minnesota Supreme Court

dated August 29, 1984, Granting Appellants’ Petition

for Accoterated Review .. <2. ccccsseccesvess A-242

Appendix I—Order of the Minnesota Supreme Court

dated June 28, 1985, Denying Appellants’ Petition

for Rehearing and Granting a Stay of the Effect of the

Hearing Examiner’s Orders ................. A-243

Appendix J—Judgment ............... cee ceee A-244

Appendix K—Notice of Appeal ................ A-24:!

Appendix L—Minnesota Human Rights Act, Minn.

we SE ere errr rer A-247

A-1

APPENDIX

APPENDIX A

STATE OF MINNESOTA

IN SUPREME COURT

C4-84-771

CX-84-936

Kelley, J.

Dissenting, Peterson, J.,

and Yetka, J.

Took no part, Coyne, J.

Minnesota Department of Human Rights

In the Matter of the State of Minnesota, by Marilyn E.

McClure, and her successor, Irene Gumez-Bethke, Com-:

missioner, Department of Human Rights.

Respondent (C4-84-771)

Relator (CX-84-936)

v.

Sports and Health Club, Inc., d.b.a. St. Louis Park Sports

and Health Club, et al.,

Relators (C4-84-771)

Respondents (CX-84-936)

Filed May 17, 1985

Wayne Tschimperle

Clerk of Appellate Courts

SYLLABUS

1. The Minnesota Human Rights Act. Minn. Stat.

$363.01 (1983) et seq., facially and as applied does not

A-2

violate an employer’s rights of free speech, free exercise

of religion or freedom of association as guaranteed by the

First Amendment to the United States Constitution and

Article 1, Section 16 of the Minnescta Constitution.

2. Sole owners of a corporation which engaged in dis-

criminatory employment practices are not liable as ac-

cessories under Minn. Stat. § 363.03, subd. 6, when the

owners were the ones who discriminated and where the

“corporate veil” was pierced by the hearing examiner in

personally enjoining them from continuing those practices.

3. In determining whether to certify a class in a class

action, the hearing examiner is limited to considering only

the factors set forth in Minn. Rule 5900.1100 (1983).

Affirmed in part; reversed in part; and remanded for

further certification proceedings.

Heard, considered and decided by the court en banc.

OPINION

KELLEY, Justice

In this action against appellants Sports and Health

Club, Inc. (Sports and Health),’ the respondent, the act-

ing Commissioner of the Minnesota Department of Human

Rights (Commissioner) sought to enjoin certain actiuns of

the appellants. These actions consisted of questioning pro-

spective employees about marital status and religion: ter-

minating employees because of « difference in religious

beliefs; refusing to promote employees because of diftering

‘Arthur Owens, Marc Crevier, and Forest Larson, owners of Sports and

Health Club, Inc. are also appellants. For convenience appellants will be

referred to as Sports and Health unless otherwise indicated.

A-3

religious beliefs; and failing to provide “open” public ac-

commodations. The matter was heard by a hearing ex-

aminer who found that, in fact, appellants had engaged

in the asserted practices in violation of Minn. Stat. ch.

363 (1983) (Minnesota Human Rights Act). The hearing

examiner enjoined continuation of those practices. Through-

out these proceedings, appellants have asserted that the

Minnesota Human Rights Act, facially and as applied,

unconstitutionally infringes upon their rights of freedom

of speech, free exercise of religion, and freedom of as-

sociation. In addition, appellants challenge the sufficiency

of the evidence to sustain the hearing officer’s findings

and conclusions of law, and the hearing examiner’s order

certifying classes, which they claim violates the same con-

stitutional rights. The respondent Commissioner chal-

lenges the hearing examiner's order refusing to certify

certain classes. Since we conclude that the Minnesota Hu-

man Rights Act does not impermissibly infringe upo~ ap-

nellants’ constitutional rights, either facially or as applied

to appellants, we affirm the hearing examiner. Because

the class certification was unduly narrow in scope, we re-

verse the class certification order.”

Arthur Owens, Marc Crevier and Forest Larson own

and operate Sports and Health Club, Inc., a closely-held,

for-profit Minnesota corporation. Sports and Health Club,

Inc. operates seven sports and health club operations ‘n

*The procedural history of this case is somewhat convoluted. Sports and

Health first sought review before the Minnesota Court of Appeals which

was granted. Subsequently, Sports and Health’s petition for accelerated

review was granted by this court. The Commissioner moved the Minne-

sota Court of Appeals to dismiss Sports and Health’s appeal on the

ground the hearing examiner’s orders sought to be appealed from were

not final, and therefore unappealable. The Court of Appeals never

decided that motion. Later the Commissioner filed her own appeal from

A-4

the Twin Cities metropolitan area. Each provides recrea-

tional and exercise facilities as well as counseling regard-

ing appropriate exercise programs for 18,000 members.

Approximately 140 to 150 people are currently empicyed

by the clubs. The parties agree that the clubs’ facilities

are excellent, described by some as the “Cadillac of the

industry.” and that membership dues are generally lower

than those of the competition in the Minneapolis-St Paul

netropolitan area.

Owens, Crevier and Larson are “born-again” Christians.

Their fundamentalist religious convictions require them to

act in accordance with the teachings of Jesus Christ and

the will of God in their business as well as in their per-

scnal lives. These cenvictions are deeply held, supported

ir Biblical scripture, and sincere.”

The owners of Sports and Health admit their religious

practices and beliefs spi!l over into, and in fact require,

their employment practices. These practices consist of

questioning prospective employees about marital status

and religion, terminating other employees because of a

difference in religious beliefs; refusing to promote em-

ployees because of differing religious beliefs; and failing

——

the hearing examiner in the Court of Appeals challenging the ruling

that three individual defendants did not aid and abet the corporate ap-

pellants and the denial of class certification. The Minnesota Court of

Appeals did not decide this motion. Later the Commissioner’s petition

to this court for acceleration of its appeal pending in the Court of Ap-

peals and for consolidation with Sports and Health’s appeal was granted.

Meanwhile appellants moved to dismiss the Commissioner’s appeal

because she failed to file a brief in her appeal within 30 days required

by Minn. R. Civ. App. P 131.01. Therefore, both motions to dismiss

are before the court at this time.

8The religious beliefs of the owners are clearly legitimate. In addressing

the issues here presented, we have scrupulously given due deference

and consideration to these beliefs in reaching our decision.

A-5

te provide “open” accommodations. In some instances the

practices were found illegal by the hearing examiner.

Tn other instances, no allegations of illegality were asserted.

Ir the cperation of the clubs, the owners share an evan-

gelical fervor to proselytize or convert others to their be-

liefs. The owners place book racks in the entrance of each

club containing Christian literature. The state claimed no

i'legal conduct based on this action.

Interviews of all prospective employees, with the excep-

tion of locker-room attendants and babysitters, are con-

ducted in violation of Minn. Stat. § 363.03, subd. 1(4)

(a) (1982).° In those interviews, applicants were asked

whether they attend church, read the Bible, are married or

divorced, pray, engage in pre-marital or extra-marital sex-

ual relations, believe in God, heaven or hell, and other

questions of a religious nature. Sports and Health ex-

plains this practice as an attempt to advise prospective

employees, during the interview, of the existence of the

owners’ fervent beliefs to determine whether their sincere-

ly held beliefs may offend the prospective employee.

Moreover, Sports and Health believes the answers to the

questions will help the owners determine if the applicant

(1) possesses a “teachable spirit” and (2) follows a "dis-

ciplined life style.”

Sports and Health admits that only born-again Chris-

tians are permitted to be managers or assistant managers.

The hearing examiner found this practice to be illegal

*Minn. Stat. § 363.03, subd. 1(4)(a) (1984) provides, in pertinent part,

that “it is an unfair employment practice * * * [flor an employer * * *

to require [an applicant] to furnish information that pertains to * * *

religion * * * sex, marital status * * *.”

A-6

under the Human Rights Act. Sports and Health justifies

this rigid policy by relying on their religious belief that

they are forbidden by God, as set forth in the Bible, to

work with “unbelievers.” (See 2 Corinthians 6:14-18).

Sports and Health also admits that Bible studies are a sub-

stantial part of weekly meetings for managers. Volun-

tury Bible studies are also held for all sales personnel.

Finally, based on an interpretation of the Bible, Sports

and Health will not hire, and will fire, individuals living

with but not married to a person of the opposite sex: a

young, single woman working without her father’s consent

or a married woman working without her husband’s con-

sent; a person whose commitment to a non-Christian reli-

zion is strong; and someone who is “antagonistic to the

Bible,” which according to Galatians 5:19-21 includes for-

nicators ard homosexuals. The hearing examiner tound

this practice to be in violation of Minn. Stat. § 363.03,

subd. 1(2) (1984). Sports and Health defended its hiring

and firing actions on individual viclations of rigid work

rules based on the Bible (requiring a high degree of dis-

cipline and submissiveness , “backbiting” and “non-joy-

ful” attitude on the part of the employee, and in the case

of applicants not hired, on the lack of a “teachable

*Minn. Stat. § 363.03, subd. 1(2) provides, in pertinent part, that “it is

an unfair employment practice * * * [flor an employer, because of

* * * religion, * * * sex, marital status * * *, (a) to refuse to hire

* * * a person seeking employment; or (t&) to discharge an employee;

*>*s* *”

°For instance, the Clubs use a “book” system for sales. Some of the fea-

ures of the “book” system imposed are: “cold” calls to solicit potential

members; a requirement to obtain a certain number of “referral” ap-

pointments (for prospective members) each week; requirements for

the logging of “cold” calls and “referral” appointments; that each

service of a member be recorded; that lists of clients and prospects be

updated; that the members’ programs be periodically updated; and

recording of the periodic weighing and measuring of the members.

A-7

spirit” and “disciplined lifestyle,” which the owners main-

tain are more important than a technical background in

saies, exercise and/or nutrition.

Appellaiits assert the sincere belief that their practices

were proper and lawful exercises of the rights of free

speech. free exercise of religion and freedom of association

guaranteed by the First Amendment to the United States

Constitution and Article 1, Section 16 of the Minnesota

Constitution. This assertion forms the main contention in

this case

Despite all the discrimination allegations asserted in

this case Sports and Health has employed, and continues

tc employ, married persons, male and female unmarried

persons, and divorced males and females of various races.

The Sports and Health clubs have also employed, and con-

tinue to employ, persons of various religious faiths—Jews,

Roman Catholics, Protestants of various denominations,

and others—so long as such other persons are not of-

fended by the cwners’ faith, are not antagonistic toward

the Christian gospe! and will comply with management’s

work rules in a cheerful and obedient spirit.

(1) We address first the pending motions to dismiss.

(a) The Commissioner contends that Sports and

Health’s appeal from the hearing examiner’s orders (C4-

84-771) should be dismissed with respect to liability and

class certification because the appeals are not from orders

fr.m which an appeal may be tuken since they are not

final within the meaning of Minn. R. Civ. App. P. 102.03.

We need not address the issue in this case. We choose to

grant discretionary review of the issues raised by Sports

A-8

and Health’s appeal because this is one of those “appro-

priate cases where the interest of justice requires imme-

diate review of liability determinations before the issue of

damages has been litigated.” In re Commodore Hotel

Fire & Explosion Case, 318 N.W.2d 244, 247, n.2

(Minn. 1982), see also Sigler v. First American National

Bank 325 N.W.2d 136, 137, n.1 (Minn, 1982). Sport

and Health’s appeal is before this court because we granted

accelerated review. Ruie 118 of Minn. R. Civ. App. P.,

providing for accelerated review, incorporates by refer-

ence the discretionary review found in Rule 117. The is-

sues have been fully briefed in ar adversarial proceeding.

The interest of justice, in deciding all issues arising from

the hearing examiner’s order in cne proceeding, compels

us to the conclusion that discretionary review should be

granted, and, accordingly, the Commissioner’s motion

to dismiss is denied.

(b) Sport and Health contends the Commissioner's ap-

peal (Case CX-84-936) should be dismissed because the

Commissioner did not file her brief within 30 days as re-

quired by Minn. R. Civ. App. P. 131.01. In fact the Com-

missioner has never filed the re!ator’s brief in that appeal.

However. the Commissioner did brief issues she raised in

her appeal in her brief responding to the brief of Sports

and Health in appeal C4-84-771. We note that Sports and

Health’; dismissal motion is technically meritorious. Minn.

P.. Civ. App. P. 142.02. However, this court did grant the

Commissioner’s petition for accelerated review and con-

solidation of her appeal (CX-84-936), with Sports and

Health’s appeal (C4-84-771) and ordered counsel on oral

argument to be prepared to discuss the substantive issues

raised in each appeal. In fact, counsel did discuss all issues

A-9

on oral argument, and, pursuant to leave of the court,

Sports and Health did file a brief responding to issues

raised by the Commissioner. Because no rights have been

prejudiced, and since the parties have been given an op-

pertunity to brief and argue the issues raised by the Com-

missioner, we will grant discretionary review of those is-

sues in the interest of justice. Jn re Commodore Hotel

Fire & Explosion Cases, supra.

(2) Turning to the merits, we address first Sport and

Health’s contention that the findings of fact, conclusions

of law, and orders of the hearing examiner are “unsup-

ported by substantial evidence in view of the entire record

as a whole.” Minn. Stat. § 14.69 (1982). In examining

that contention, we are not permitted to substitute our

view of the evidence for that adupted by the hearing ex-

aminer if substantial evidence in the record supports his

decision. See Dakota County Abstract Co. v. Richardson,

312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977).

The test for determin:ng whether a specific finding is sup-

ported by substantial evidence is whether the evidence,

considered in its entirety, is (1) more than a scintilla of

evidence: (2) such that a reasonable mind might accept

it as adequate to support a conclusion; or (3) more than

“some evidence” and more than “any evidence”. Taylor v.

Beltrami Electric Cooperative, Inc., 319 N.W.2d 52. 56

(Minn. 1982). Where the evidence is conflicting or more

than one inference may be drawn from it, the findings of

the hearing examiner must be upheld. City of Minneapolis

v. Richardson, 307 Minn. 80, 88. 239 N.W.2d 197. 202

(1976).

In a contested case such as this, the Commissioner

must make a prima facie showing of discrimination as de-

nT

A-10

fined by Minn. Stat. 363.03 (1982). The employer then

has the burden to establish legitimate nondiscriminatory

reasons for the actions taken. The Commissioner then has

the burden of establishing that the reasons stated are a

mere pretext for discrimination. Hubbard v. United Press

International Inc., 330 N.W.2d 428, 441, n.12 (Minn.

1983).

In this case there are numerous charging parties In

examining the claim of each charging party, the hearing

examiner meticulously followed the procedure outlined in

Hubbard. Several of the charges alleged that Sports and

Health in its hiring practices violated the statute by mak-

ing inquiry as to religious beliefs and practices and mari-

tal status. Other charges alleged that in promotion practices

the same statutorily prohibited conduct occurred, while

still others charged their employment was terminated be-

cause of their marital status and refusal to partake in re-

ligious classes at the place of business. Finally, one com-

piainant, who was of the Jewish religious faith, alieges

that she was forced to give up her membership in one of

thie clubs run by Sports and Health because Sports and

Health, through its insistence upon displaying fundamen-

talist Christian religious literature in the literature racks

and on the walls of the sports club, engaged in conduc:

that was offensive to her. In considering each complaint,

the hearing examiner found a prima facie showing of dis-

crimination. Sports and Health then presented evidence in

an attempt to establish a legitimate and nondiscriminatory

reason for the action taken. Sports and Health proterred

evidence that the employees who were terminated had

trouble with the “book system” (the basis of the clubs’

"A charging party is a person who claims he or she was illegally discrimi-

nated against by the employer.

A-11

membership solicitation efforts); that they had a bad and

uncooperative attitude, that they had violated rules such

as the use of intoxicants on the premises or the unauthor-

ized “borrowing” of money from certain club funds; or

that they did personal business while on the job, con-

trary to company rules; as well as other claims of rule vio-

lations. In each instance, the hearing examiner held that

Sports and Health had advanced legitimate and nondis-

criminatory reasons for the discharges. Sports and Health

likewise offered evidence articulating reasons why certain

complainants were not hired such as their rejection of re-

ligion, their “bad attitude”, or that their personality was

not such as to demonstrate an ability to get along with

people.” The hearing examiner found that these reasons

for Sports and Health’s actions were generally legitimate.

However, in considering both the claims of promotional

discrimination and hiring discrimination, the hearing

examiner found the articulated reasons for the actions

taken were pretextual and the real reasons related to the

employees’ or applicants’ religious beliefs, or lack thereof,

and/or their marital status. Had we been the fact finder,

we might have arrived at a different conclusion in some

of these cases, but the record is replete in demonstrating

that each of the charging parties had been questioned

about marital status, religion, and, indeed, in several in-

stances “preached at” by officers of Sports and Health

at the time of their termination or application denial. We

recognize that in order to make informed and intelligent

employment decisions, employers must be permitted some

leeway to question an employee or applicant about his

*One or two of this group, after being queried about attitude toward

religion or marital status, did not pursue an employment application.

A-12

or her background, upbringing and perspective.’ In this

case, however, Sports and Health, in some instances, went

far beyond legally permissible bounds in questioning ap-

pl'cants and employees. The evidence clearly substantiates

the findings of the hearing examiner that questioning

concerning religious beliefs, practices and concerning mar-

ital status permeated the employment process and were

the true reasons for the actions taken by Sports and

Health.”

(3) We come then to the crucial issue: do the findings

of fact, conclusions of law and orders of the hearing ex-

aminer unconstitutionally infringe upon Sports and

Health’s freedom of speech, free exercise of religious be-

liefs. and freedom of association as provided by the First

Amendment to the United States Constitution and Article

1, Section 16 of the Minnesota Constitution?”

(a) We address first a preliminary matter. The Com-

missioner, in her brief to this court, for the first time in

this litigation raises the issue of whether Sports and

Health has “standing” to raise the freedom to exercise re-

l'gion issue. It is well settled that an issue not litigated be-

lcw may not be asserted for the first time on appeal. Mat-

*See e.g. 29 C.F.R. § 1604.7, 1605.3, 1606.6 (1984).

Justice Peterson, in dissent, argues that the discrimination claim predi-

cated upon questioning of employees and applicants on cohabitation of

unmarried persons is not a ground under the statute for finding dis-

crimination. Even though we agree with his contention, yet the record

appears clear to us that Sports and Health went far beyond permissible

bounds in questioning employees and applicants in areas clearly pro-

hibited by the act.

“Both parties to this action have discussed in briefs and argument these

three claims together. Although they are three distinct and separately

guaranteed rights, the exercise of free speech in this case was pursuant

to a deeply held religious conviction and the associational freedom thai

was exercised by Sports and Health was motivated by the same deeply

held religious beliefs.

A-13

ter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.

1982); Republic National Life Insurance Co. v. Lorraine

Realty Corp., 279 N.W.2d 349, 355 n.2 (Minn. 1979).

However. an objection to want of “standing” goes tc the

existence of a cause of action, is jurisdictional, and may

be raised at any time, Matter of Welfare of Mullins, 298

N.W.2d 56, 61 n.7 (Minn. 1980). In this case, however.

we conclude that Sports and Health (the corporatiun) has

“standing” to assert its constitutional arguments. The is-

sue here is not whether a corpuration has “standing” to

liiigate, but rather whether Sports and Health has

“standing” to assert the first amendmeut as a defense to

the claims of discrimination. The Commissioner’s conclu-

sory assertion that a corporation has no constitutional

right to free exercise of religion is unsupported by any cited

authoritv. Though not precisely on point, the United States

Supreme Court has permitted employers, corporate as well

as individuals, to assert first amendment rights. See e.g.

First National Bank of Boston vy. Bellotti, 435 US. 765

‘1978 )<freedom to speak on a referendum issue): United

States v. Lee, 455 U.S. 252 (1982) (individual employer

claimed that his rights of free exercise of religion were

v:olated by a facially neutral governmental law—the So-

cial Security Act). See also Donovan v. Tony and Susan

Alamo Foundation, 722 F.2d 397 (8th Cir. 1983), aff'd,

53 USL.W. 4489 (1985) (corporation asserted first

amendment right of free exercise «f re‘igion in defense of

alleged violation of minimum wage, overtime, and record

keeping provisions of 29 U.S.C. 201 et seq.).

In this case, however, it is unnecessary to decide whether

Srorts and Health, a corporation, has a first amendment

richt to free exercise of religion The hearing examiner

EE

A-14

pierced the “corporate veil” to make the respondents

(Owens, Crevier and Larson), who own all the stock and

assets of the corporation, liable for the illegal actions of it.

Whether the hearing examiner had legal authority to pierce

the “corporate veil” is not before us on this review.” The

fact remains that he did. By so doing, Owens, Crevier and

Larson, in reality, are the ones asserting the first amend-

ment right to the free exercise of religion. Thus, we con-

clude the Commissioner’s “standing” argument presents

ro impediment to allowing the constitutional issue to be

asserted in this case.

(b) Sports and Health argues that if the violations of

the employment discrimination and public accommodation

sections of the Minnesota Human Rights Act are sustained,

such conduct is protected under the right to exercise re-

ligion under the United States asd Minnesota Constitu-

ticns.”

“The “piercing” doctrine by legal reasoning requires the conclusion that

the corporation and shareholders are one and the same (a mere “alter

ego”); that the corporation was set up merely to serve as a “buffer”

for the shareholders for one reason or another. Moreover, the hearing

examiner worked from the assumption that Crevier, Larson and Owens

were exercising their first amendment rights through Sports and Health.

No corporate question was involved in hearing examiner’s memoran-

dum. Finally, Minnesota recognized the “reverse pierce” of the corpo-

rate veil in Roepke v. Western National Mutual Insurance Co., 302

N.W.2d 350, 352 (Minn. 1981) (court allowed sole shareholder to

“pierce” corporate veil from inside-out to allow stacking of no-fault

insurance coverages under policies).

8The first amendment to the United States Constitution states:

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging freedom of

speech, or of the press; or the right of the people peaceably to as-

semble, and to petition the Government for redress of grievances.

U.S. Const. amend I. The establishment and free exercise clauses apply

to the states as a result of incorporation into the fourteenth amendment

due process clause. School District of Abington School District v.

Schempp, 374 U.S. 203 (1963).

Article 1, § 16 of the Minnesota Constitution is entitled “Freedom

of Conscience; No Preference to be Given ‘» any Religious Establish-

ment or Mode of Worship” and provides

A-15

Because the State of Minnesota is neither attempting to

regulate religious beliefs or to single out any particular

religious belief for adverse treatment, the Minnesota Hu-

man Rights Act is a facially-neutral regulation. See Wis-

ccnsin v. Yoder, 406 U.S. 205, 220 (1972). .

But that does not resolve the issue. When an individual’s

action, exercised under first amendment guarantees, vio-

lates a facially neutral regulation such as the Minnesota

Human Rights Act, the courts follow a three step analy-

sis to determine whether a constitutional exemption is re-

quired. Using that analysis, we first must determine whether

the requirements of the Human Rights Act actually im-

pose a burden upon Sports and Health’s free exercise of

religion. See United States v. Lee, 455 U.S. 252, 257

(1982). Second, if such a burden is found to exist, it must

be determined whether the burden is justified by a com-

velling government interest. Bob Jones University v.

United States, 103 S.Ct. 2017, 2035 (1983). Third. the

court must determine whether the questioned regulation is

the least restrictive means to avhieve the state’s goals.

Thomas v. Review Bcard of Indiana Employment Secur-

ity, 450 U.S. 707, 718 (1981).“ Accordingly, while the

The enumeration of rights in this constitution shall not deny or impair

others retained by and inherent in the people. The right of every

man to worship God according to the dictates of his own conscience

shall never be infringed; nor shall any man be compelled to attend,

erect or support any place of worship; or to maintain any religious

or ecclesiastical ministry, against his consent; nor shall any control

of or interference with the rights of conscience be permitted, or any

preference be given by law to any religious establishment or mode

of worship; but the liberty of conscience hereby secured shall not

be so construed as to excuse acts of licentiousness or to justify

practices inconsistent with the peace or safety of the state, nor shall

any money be drawn from the treasury for the benefit of any religious

societies or religious or theological seminaries.

“In United States v. Lee, 455 U.S. 252, 257-59 (1982), the United States

Supreme Court formulated a slightly different three-part test. There,

the first inquiry was whether the obligation imposed interferred with

A-16

freedom to exercise religious beliefs is an absolute consti-

tutional right, an individual’s right to practice his or her

religion, in certain circumstances, may be subject to

reasonable governmental regulations if the government

has an overriding compelling interest. See Cantwell v.

Connecticut, 310 U.S. 296, 303-4 (1940).

Here, the Commissioner concedes, and the record amply

supports, that the employment actions taken by Sports

and Health, through its sole owners, was the result of

deeply held and sincere religious beliefs. Moreover, the

Commissioner concedes that the Minnesota Human

Rights Act abridges those beliefs. The Commissioner

however, contends that the abridgment is justified by the

state’s compelling interest in eliminating all forms of dis-

crimination.”

The state’s contention is buttressed by a number of re-

cent decisions of the federal courts. See Bob Jones Univer-

sity, 103 S.Ct. at 2034-35 (fundamental overriding govern-

raental interest in eradicating race discrimination can

outweigh a person’s right to exercise religious beliefs);

Roberts v. United States Jaycees, 104 S.Ct. 3244. 3253

(1984) (state’s compelling interest in eliminating discrim-

the free exercise right. The second question was whether the state

justified the limitation on religious liberty by showing that it was essen-

tial to an overriding governmental interest. The final question was

whether accommodating the religious belief would unduly interfere

with fulfillment of this governmental interest. The test applied in Lee

does not substantially differ from the test set out in this text. Moreover,

the Supreme Court returned to the test stated in the text in the Bob

Jones University case.

In her brief the Commissioner asserts the state’s interest is in securing

for the state’s citizens freedom from bigotry in employment whether

bigotry is motivated by race, sex or, as in the present case, religion.”

It is questionable whether the characterization of appellants’ actions

as “bigotry” is appropriate. See Websters Third International Dictionary

(unabridged). In each instance, appellants relied on commands found

in the New Testament of the Bible, which, if not followed, they claim,

would condemn them to perdition.

A-17

ination against women justifies the impact that the Hu-

man Rights Act may have on male members’ associational

freedoms); Dayton Christian Schools v. Ohio Civil Rights

Commission, 578 F.Supp. 1004, 1034-35 (S.D. Ohio 1984)

(intrusion on school’s free exercise rights by investigation

and potential administrative hearing justified by state’s

cempelling interest in eradication of sex discrimination

and employment); Grosz v. Miami Beach, 721 F.2d 729

(11th Cir. 1983), cert. denied, 105 S.Ct. 108 (1984)

(city’s interest in compliance with zoning ordinance suf-

ficiently compelling to outweigh constitutional right to

free exercise of religion). See also United States v. Lee,

455 US. 252 (1982): Equal Employment Opportunity

Commission v. Pacific Press Publishing Association, 676

F.2d 1272 (9th Cir. 1982). In each case the court bal-

anced asserted constitutional rights against the govern-

mental interest in seeking enhancement of civil rights of

its citizens. This balancing most recently occurred in

Rishon v. King and Spaulding, 104 S.Ct. 2229 (1984).

In Hishon a law associate sued her former employer al-

leging that sex-biased discrimination caused the decision

denying her elevation to partnership status in a law firm.

In holding that Hishon’s complaint stated a claim cog-

nizable under Title VII, the court rejected the law

firm’s defense that application of Title VII would intringe

upon the firm’s constitutional first amendment rights of

expression and association. In doing so the majority

stated:

Moreover, as we have held in another context,

“{iJnvidious private discrimination may be charac-

terized as a form of exercising freedom of association

protected by the First Amendment, but it has never

A-18

been accorded affirmative constitutional protections.”

There is no constitutional right, for example, to dis-

criminate in the selection of who may attend a private

school or join a labor union.

Jd. at 2235 (citations omitted). Justice Powell, in concur-

rence, emphasized that laws banning discrimination may

well infringe upon first amendment rights:

“sé

The Court’s opinion properly reminds us that “in-

vidious private discrimination * * * has never been

afforded affirmative constitutional protections.” This

is not to say, however. that enforcement of laws that

bar, discrimination will always be without cost to

other values, including constitutional rights. Such

laws may impede the exercise of personal judgment

in choosing one’s associates or colleagues.

Id. at 2236, n.4 (Powell, J., concurring) (citations omitted

and emphasis added). An examination of the foregoing

cases clearly demonstrates that the government has an

overriding compelling interest in prohibiting discrimina-

tion in employment and public accommodations. Each of

the cited cases supports our balancing analysis. The ration-

ale of those cases clearly undermines the claim that

Sports and Health can hire and promote only “born

again” Christians in management positions. See also,

Roberts v United States Jaycees, 104 §.Ct. 3244 (1984).

In a pluralistic and democratic society, government has a

responsibility to insure that all its citizens have equal op-

portunity for employment, promotion, and job retention

without having to overcome the artificial and largely irrele-

vant barriers occurring from gender, status, or beliefs to the

A-19

main decision of competence to perform the work. Like-

wise, the government has a responsibility to afford its citi-

zcns equal access to all accommodations open to the gen-

eral public.

But are there “less restrictive” means available to

achieve this overriding governmental interest? The Com-

missioner asserts that this compelling state interest can

enly be advanced by enjoining Sports and Health and its

sule owners from continuing the discriminatory practices.

‘A less restrictive alternative might be to grant persons who

deeply and sincerely hold sincere religious beliefs an ex-

emption from the statutes, and, in essence, that is what

appellants argue. At the outset we note that the Min-

nesota Human Rights Act does contain exemptions, and,

in particular, an exemption for religious corporations

when religious beliefs shall be a bona fide occupafional

qualification for employment. Minn. Stat. § 363.02, subd.

1(2) (1984). Sports and Health, however, is not a religious

corporation—it is a Minnesota business corporation en-

gaged in business for profit. By engaging in this secular

endeavor, appellants have passed over the line that af-

fords them absolute freedom to exercise religious beliefs.

The state’s overriding compelling interest of eliminating

discrimination based upon sex, race, marital status, or

religion could be substantially frustrated if employers. pro-

fessing as deep and sincere religivus beliefs as those held

by appellants, could discriminate against the protected

classes. Other employers in the state engaged in secular

business activities would be bound by the law, but those

professing such convictions would not. We agree with the

Commissioner that the state’s overriding interest permits of

nec exemption to appellants in this case. Notwithstanding

A-20

the fact that the Minnesota Humar. Rights Act as applied

kere infringes upon sincerely held religious beliefs and

imposes upon the free exercise thereof, when appellants

entered into the economic arena and began trafficking in

the market place, they have subjected themselves to the

standards the legislature has prescribed not only for the

Lenefit of prospective and existing employees, but also for

the benefit of the citizens of the state as a whole in an ef-

fort to eliminate pernicious discrimination.”

(4) In her appeal the Commissiuner contends the

hearing examiner erred in dismissing Owens, Crevier, and

Larson, the sole owners of Sports and Health, from the

action. Originally, these three were named parties to this

action on the theory that they aided and abetted Snorts

ard Health in engaging in the discriminatory practices.

See e.g. Minn. Stat. § 363.03. subd. 6 (1984). Although

the hearing examiner did give as one reason for the dis-

missal what might be called a “good faith” exception

b:sed upon the sincerity of the beliefs of these three in-

dividuals, a ruling which is questionable, he also based the

dismissal on the ground that the Commissioner had

proved that the three individuals were, in fact, the corpor-

ation. He then pierced the “corporate veil.” to hold them

liable for the illegal actions of Sports and Health. Hav-

ing done that. he held it was inappropriate to hold those

**Were we to follow the dissent’s conclusion, those “less Biblical minded”

than the owner of Sports and Health, if they could demonstrate their

beliefs were sincere and based on accepted theological concepts, would

be permittea to discriminate contrary to the state’s public policy of

affording equality of opportunity and equal acess to public accomma-

dation to all its citizens. To permit such an exception would substan-

tially emasculate the state’s public policy of ensuring civil rights for

the citizens. Were we to accept Sports and Health's position, we might

justly be accused of significantly encouraging private discrimination.

Cf., Reitman v. Mulkey, 387 U.S. 369, 376 (1967).

A-21

individuals separately liable under the aiding and abetting

subdivision of the Human Righ*s Act for actions which

the corporation and they had already been held liable. By

his act of piercing the “corporate veil” the legal basis for

an aiding and abetting claim is nonexistent. Cf. State v.

Strimling, 265 N.W.2d 423, 430 (Minn. 1978). With that

conclusion, we agree.

(5) The Commissioner sought class certification for

all persons who had applied for employment with one of

the clubs run by Sports and Health and who were required

to furnish information regarding sex, marital status and

religion. The hearing examiner refused to certify the class

on the ground “it would be unduly burdensome and un-

fair to [Sports and Health and Owens, Crevier, and Lar-

son] to include in the class any [such] persons * * * who

cannot further prove that they were not hired because of

one of those reasons.” The Commissioner argues that in-

sertion of a “fairness” consideration into the text for class

certification under the Human Rights Act is an error of

law.”

The appropriate test for class certification under the

Human Rights Act is contained ‘n Minn. Rule 5000.1100

(1983) (formerly Hum. Rts. Rule 107(e)). That rule, sub-

stentially like Minn. R. Civ. P. 23.01, provides that class

certification is proper when there are questions of law or

fact common to the class, there exists sufficient similarity

of claims among class members, there is adequate repre-

sentation of the class, and the respondent acted on grounds

generally applicable to the class making injunctive relief

“In reviewing issues of law, the reviewing court is not bound by the de-

cision of the agency and need not defer to the agency's expertise. No

Power Line, Inc. v. Minnesota Environmental Quality Council. 262

N.W.2d 312, 320 (Minn. 1977).

A-22

appropriate. The hearing examiner ruled that the state és-

tablished these criteria relative to all classes for which cer-

tification was sought. Therefore, a ciass of persons re-

quired to furnish prohibited information must be certified.

Rule 5000.1100 provides the hearing examiner no

room for exercising discretion. Moreover, it is not in the

province of the hearing examiner’s power to determine

what claims cannot be proven further. Had the examin-

er pinned his refusal to certify the class required to furnish

information on one of the factors found in Minn. Rule

5000.1100 we might be faced with a different question.

We conclude, on remand, the requested class shouta be

certified.

We deny the Com : issioner’s mction to dismiss the ap-

peal of Sports and Health. We deny Sports and Health’s

motion to dismiss the Commissioner’s appeal. We affirm

the hearing examiner’s rulings that the alleged violations

were proved by substantial evidence. We conclude that the

Human Rights Act is not facially unconstitutiona: and

that the state’s overriding compelling interest in prohibit-

ing discrimination in employment, while it does infringe

upon the appellant’s exercise of religious beliefs, is con-

stitutionally permissible. We reverse the hearing examin-

er’s order refusing to certify the class and remand for

further certification proceedings consistent with this opin-

ion.

COYNE, J., took no part in the consideration o1 de-

c'sion of this case.

PF:-TERSON, Justice (dissenting).

The issues presented in this case are of as profound

importance as any raised in mv 18 vears on this court, is-

Sues of important constitutional principle. Early in 1967,

A-23

during my first term, a “fundamentalist” Christian activist,

Gerda Koch, publisher of Facts for Action, made defama-

tory statements concerning the lace Professor Arnold Rose;

but, sensitive to the first amendment right of free speech

and press, I wrote for a unanimous court to reverse a

jvdgment for Rose. Rose v. Koch, 278 Minn. 235, 154

N.W.2d 409 (1967). Today, another “fundamentalist”

Christian, Arthur Owens,’ has been found guilty of violating

various provisions of the Minnesota Human Rights Act,

Minn. Stat. ch. 363 (1984), arisiig out of his determina-

tion to operate his business, Sports and Health Club, Inc.,

according to what he understands to be commandments

declared in the Old and New Testaments constituting the

Christian Bible. Being no less sensitive to the constitutional

guarantees of religious freedom and free speech embedded

in Minn Const. art. 1, §§ 3 and 16, I would reverse the

ccnclusions of law and orders of the departmental hearing

examiner and dismiss these actiouis.

I.

Owens’ Religious Belief and Practice in a Secular Society

This case is unique, as the hearing .xaminer (hereafter

examiner) observed, because a statute designed to protect

the religious from discrimination kas been invoked by the

ncnreligious or merely nominally religious against Owens,

2 man of strong religious belief and commitment. The im-

‘The formal party against whom complaint was made is Sports and Health

Club, Inc., doing business at seven locations in the Minneapolis-St. Paul

‘metropolitan area. Its officers are Arthur Owens, president and chief

executive officer, and Marc Crevier and Forest Larson, vice presidents.

Owens, whose religious and business philosophy is fully shared by the

vice presidents, is the founder and dominant figure of the corporation.

For convenience only, therefore, with isolated exceptions, references

will be to Owens rather than to the vice presidents or the corporate

name.

:

a

A-24

rcrtant issues in this case cannot be fully understood with-

out understanding Owens himself.

Owens is, by his personal confession, a Christian. A

“Christian,” of course, is one who professes belief in the

religion of Christianity. The centuries-old Apostles’ Creed,

a statement of the main Christian beliefs in use as early

as A.D. 150 and still in use thrcughout Christendom by

both Roman Catholics and Protestants, recites:

I believe in God the Father Almighty, Maker of

heaven and earth; And in Jesus Christ his only Son

our Lord; who was conceived by the Holy Ghost,

born of the Virgin Mary, suffered under Pontius

Pilate, was crucified, dead, and buried; He descended

into hell: the third day He rose again from the dead;

He ascended into heaven, and sitteth on the right

hand of God the Father Almighty; from thence He

shall come to judge the quick and the dead. I believe

in the Holy Ghost; the holy catholic Church; the com-

munion of saints; the forgiveness of sins, the resurrec-

tion of the body; and the life everlasting. Amen.

Tie Nicene Creed, similar in its Christology and adopted

in A.D. 325, is used by the Eastern Orthodox Churches.”

Justice William Brennan has taken judicial notice of the

“characteristically Christian belief” that a Divine Saviour

was brought into the world and that the purpose of His

miraculous birth was to illuminate a path toward salva-

tion and redemption, “an exclusive, precious and holy

[path]. If these are basic beliefs of Christians, they are

obviously fundamental.

*See Apostles Creed and Nicene Councils in The World Book Encyclo-

pedia, Notes by the late Archbishop Fulton J. Sheen. -

SLynch v. Donnelly, 104 S. Ct. 1355, 1377 (1984).

A-25

Owens described his basic Christian belief in mure par-

ticularized terms: “born again,” “evangelical,” and “funda-

mentalist.” They are terms that, for many, have created a

stereotype to which negative reactions range from amuse-

ment or bemusement to outright hostility—a climate in

which the fundamental issues in this case were not, and

are not likely to be, given appropriate consideration.

The words “born again” came from the lips of Jesus

Christ to Nicodemus as reported in the Gospel according

to John.* Then, as now, those words signified a conver-

sion—a conscious change in belief or, according to Web-

ster’s Third New International Dictionary (1961) (hereafter

Webster’s Dictionary), a “spiritual regeneration.” The

words “born again” and the possibly more comfortable

word “renaissance” derive from the same French word,

“renaitre,” id., and both are substantially synonymous with

an entire “nation under God [having] a new birth of

freedom,” as Lincoln spoke the words at Gettysburg.

The most dramatic and radical “born again” experience

recorded in the New Testament is prubably that of St

‘The special assistant attorney general exemplified this last reaction when

she harshly dismissed Owens’ faith in practice as an example of “ex-

treme bigotry,” which may explain the unusual vigor with which the

complaints have been prosecuted.

“John 3:1-6 reads:

There was a man named Nicodemus, a leader of the Jews, who

belonged to the party of the Pharisees. One night he came to Jesus

and said to him: “We know, Rabbi, that you are a teacher sent by

God. No one could do the mighty works you are doing unless God

were with him.” Jesus answered, “I tell you the truth: no one can

see the Kingdom of God unless he is born again.” “How can a grown

man be born again?” Nicodemus asked. “He certainly cannot enter

his mother’s womb and be born a second time!” “I tell you the

truth,” replied Jesus, “that no one can enter the Kingdom of God

unless he is born of water and the Spirit. Flesh gives birth to flesh,

and Spirit gives birth to spirit.”

All New Testament Scriptural quotations are from the Good News

for Modern Man version, received in evidence as a joint exhibit.

A-26

Paul who, en route to Damascus to persecute early

Christians, had a Divine encounter and was converted

into the greatest of Christian missionaries. Acts 9:1-30;

22-3-16. No less radical. if less dramatic, was the earlier

experience of Peter (together with Andrew, James, and

John), who abandoned his fishing nets to follow the

Stranger who said, “Come with me and I will teach you

to catch men.” Matthew 4:18-22. Norman Vincent Peale,

im an October 3, 1984, dialogue on CBS television, said

that he had been born again in a “traditional way” but that

net everyone does or must experience it in the same way

as he had. Owens, who testified concerning his own born

again experience in 1957, described what it meant to him:

It means that really the experience with Jesus Christ

which is a personal relationship with a risen Lord,

controls my life, my attitude, the way I operate in

my home, the way I operate in interpersonal rela-

tionships and the way I operate in business.

Owens is an “evangelical” Christian. “Evangel,” accord-

ing to Webster's Dictionary, refers to “glad tidings” or

“the Christian gospel.” The verb, “evangelize,” is defined

as “to instruct in the Gospel; to * * * convert to Christian-

ity.” A final command of Jesus to his eleven disciples was

“[g]o, then, to all peoples everywhere and make them my

disciples.” Matthew 28:19. They did, and changed the

world; Owens did, and changed his business.

Owens, finally, is a “fundamentalist” Christian. The

words of the Founder of Christianity can be nothing less

than fundamental. But to Owens and other “fundamental-

ists,” to be a fundamentalist Christian encompasses a be-

lief that both the Old and the New Testaments, in their

A-27

original texts, are verbally inspired of God (citing Mat-

thew 5:17-18, 2 Timothy 3:16-17, and 2 Peter 1:21 and

3:16) and accordingly are inerrant and the complete and

supreme authority in faith and life.

It is not for an administrative agency or this court to

assess the legitimacy of Owens’ belief or undertake an

exegesis of the Scripture passages upon which it is based.

It is enough to acknowledge that it is Owens’ belief and one

shared by hundreds of thousands of similar believers.*

Our duty is to recognize that belief and at least respect his

right to it. The freedom of belief in matters religious, whe-

ther or not the belief is shared by others, is constitutional

fundamentalism; however, acknowledging the freedom to

believe but denying a concomitant freedom to communi-

cate and put beliefs into practice is essentially oxymoronic.

The Outreach of Owens’ Faith in the Marketplace

This is a general statement of how Owens applied his re-

ligious convictions to the operation of his business. The

particularized findings of fact and conclusions of law of

the examiner, which raise more than constitutional issues,

will be discussed further in Part ITI.

Following his religious conversion, as well as two periods

of imminent bankruptcy, Owens resolved to conduct his

business as an evangelical, fundamentalist “discipleship.”

This was augmented by improved secular business practices

not inconsistent with that discipleship. The business

prospered, and Owens attributed the “turn-around as being

the result of God’s working in the management of [his]

business.”

*The 1985 Statistical Abstract of the United States reports latest census

data as showing that religious membership totals 139.6 million Ameri-

cans. See infra note 18 for a survey showing actual church attendance in

the United States and Minnesota.

A-28

Both club members and employees were made aware of

this business posture. A 14-foot-wide sign, with an unre-

corded Scriptural quotation, hangs in the main office. Evan-

gelistic Christian placards, pamphiets, magazines, and

books—some free and others for sale—are placed in the

lounges and other public areas cf the several clubs. Bible

study classes during the afternoon shift change are made

available to all employees; one study leader was identified

as a woman managerial employee of Roman Catholic

faith, and other managerial leaders, including Owens and

Crevier, apparently are Protestants. A chapter of Toast-

masters International was established, and sales personnel

are required to attend; as required by the charter of the

International organization, all sessions start with prayer,

and members deliver speeches of their own choosing.

frequently on subjects religious in nature.’ Exclamations of

joy—like “Hallelujah” or “Praise the Lord” (see Psalm

148)—by employees are not uncommon. This working en-

vironment—indisputably a matter of lawful business judg-

ment—was explained to applicants for employment. One

purpose of this explanation was to determine whether the

prospective employee would be “antagonistic” or offended

by such working conditions.*

‘Similar motivational-public speaking courses, sans opening prayer, are

sponsored by the Dale Carnegie Institute. Lee Iacocca, formerly man-

agerial giant of Ford Motor Company and now of Chrysler Corporation,

writes in his best-selling autobiography: “Management is nothing more

than motivating other people,” and “I’ve sent dozens of introverted

guys to Dale Carnegie [Institute courses] at the company’s expense.

For most of them it made a real difference.” L. Iacocca, Iacocca: An

Autobiography 53-54 (1984).

“The following testimony of Nessa Moldo is illustrative:

Q. Did [Owens], during the course of [your] employment interview,

make you aware of his religious beliefs, the fact that he was a

Christian man and was running his business according to the

Christian principles?

A-29

Owens—or sometimes one of the vice presidents if man-

agerial employees were not involved—undertook, in ad-

dition, to lea'n if an applicant had a “teachable spirit”

and a “disciplined lifestyle.” somewhat interchangeable at-

titudinal terms. “Discipline” and “disciple,” according to

Webster's Dictionary, have a common connection to the

word “teachable.” These objectives involved inquiry into

family and marital status, for two reasons: first, if it re-

vealed an immoral relationship, Owens was not willing to

subsidize it with employment; second, if the applicant came

from a disciplined home environment, it revealed a favor-

able likelihood that the applicant had learned submission

to authority, acceptance of a task to be done, and capacity

to complete that task.” Owens considered that emplovees

who resisted authority and instruction demonstrated, in

Owens’ words, a “lack of enthusiasm. They’re not able to

do, and they don’t want to do, these task things to reach

the goals that we have set for them.”” (emphasis supplied).

A. Yes.

** * *

Did he ask you whether that would be a problem with you?

Yes.

What did you answer?

I said I had no problem with that. And then [I] asked him if he

would have a problem with my being Jewish and working for

him.

And what did he say?

No. No problem.

** *

So you came to work?

. Right.

*Owens thought a person from a Catholic farm family was, on this basis.

a most promising prospect.

1“Enthusiasm” is defined by Webster’s Dictionary in its archaic form as

“inspiration” by a god or other superhuman power” or, in modern

usage, as “strong excitement of feeling on behalf of a cause or subject.”

Many years ago Frederick Williamson, then president of New York

Central Railroad, told Dale Carnegie: “The longer I live the more

certain I am that enthusiasm is the little-recognized secret of success.

* * * [I]f two men are nearly equally matched, the man who is enthusi-

PO PO

>O >O

A-30

Owens believes, not surprisingly, that a person’s religion—

if any—‘“permeates, motivates, and directs every thought

and action of that person’s life,” private and public.

It is undisputed that no person will be initially employed

in or subsequently promoted to a manageriai position un-

less he or she is a “born again” and “growing” Christian.

Unlike non-managerial employees, attendance at Bible

study sessions is mandatory. Owens’ Scriptural basis for

this standard is in St. Paul’s words of counsel to members

of the church in Corinth:

Do not try to work together as equals with unbelievers,

for it cannot be done. How can right and wrong be

partners? How can light and darkness live together?

How can Christ and the Devil agree? What does a

believer have in common with an unbeliever?

2 Corinthians 6:14-15.

The religion-related standards for managerial employees

are the most pronounced and conspicuous of those found

by the examiner as violative of the anti-discrimination

statute. Common sense and common law, however, should

make them the least subject to sanction. All employees, to

a lesser or greater extent, have a fiduciary relationship to

their employers, Restatement (Second) Agency §§ 1, 2, 13

(1957), with a duty to act in the interests of the employer

and not as an adversary. This principle has been greatly

diminished in the decades following the enactment of mod-

ern labor relations laws, but it is most significant that

those statutes uniformly exempt managerial employees

—

astic will find the scales tipped in his favor. And a man of second-rate

ability with enthusiasm will often outstrip one of first-rate ability without

enthusiasm.” (emphasis in original); The Dale Carnegie Course 66-67

(Dale Carnegie Publishers, Inc. 1955).

A-31

from adversarial collective bargaining relationships. The

federal Labor-Management Relations Act, 29 U.S.C. §

152 (1976), in its definition of “employee,” expressly ex-

cludes “any individual employed as a supervisor.” Although

the statute makes no mention of “managerial employee,”

it is construed, a fortiori, to exclude them as well. See

N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974). As

stated in N.L.R.B. v. Yeshiva Un'versity, 444 U.S. 672,

682 (1980), both exemptions grow out of the same con-

cern: that an employer is entitled to the undivided loyalty

of its representatives. The Minnesota Labor Relations Act

does not contain a specific definition, but in Minn.

Stat. 179.16, subd. 2 (1984), provides that “[s]upervisory

employees shall not be considered in the selection of a

bargaining agent.” Paul W. Goldberg, the present director

of the Minnesota Bureau of Mediation Services, and his

predecessor, Peter E. Obermeyer, confirm that units of man-

agerial employees have never been certified for collective

bargaining purposes with a private employer in Minnesota.

The common sense of these statutes, and common sense

without statutes, is that no business person would wish or

should be required to be associated at the critical man-

agerial level with a person who rejects the basic operation-

al objectives and philosophy of the business enterprise.

The point just stated can be illustrated by the hypo-

thetical example of two not-so-hypothetical business cor-

porations that sell books and other publications but that

have radically different business ph'losophies. Corporation

A operates stores selling predominantly religious publi-

cations, openly displayed in sections bearing such descrip-

tive signs as “Bible Commentaries,” “Bible Stories for

Children,” and “Theology”: corporation B operates stores

A-32

selling only secular books and magazines, including a large

number of so-called “adult” books and magazines. 1 pose

what are to me self-answering negative answers to these

questions: Should corporation B be required to employ an

Evangelical Christian as a clerk who would find that work-

ing environment offensive? Should corporation A be re-

quired to hire an atheist who would find its working en-

vironment at least uncomfortable and who very prob-

ably would be reluctant to read any such books for the

purpose of discussing and answering inquiries from in-

terested customers? It is absolutely unthinkable that cor-

poration B should be required to employ a branch or gen-

eral manager who would be in a position actually to dis-

courage the sale of materials he or she thought porno-

graphic, just as corporation A should not be required to

employ in a managerial position one who would convey

his or her disinterest or disdain to the customers, This be-

ing so, it makes absolutely no sense to forbid the asking of

a religion-related question that would disclose these basic

incompatibilities, unless the even more absurd answer were

to be that the person should be hired first, without such in-

quiry, and only later discharged for nonperformance of

the duties of loyalty and performance owed the employer

at either place of business.

The Propriety of Religious Discipleship in a Secular Society

The examiner’s disposition of the basic issue in this case

was as sweeping as it was superficial: Owens’ religious be-

liefs are sincere but, when put into practice in a commercial

service business, simply irrelevant." To say, as the examiner

“The attorney general’s declaration that “extreme bigotry” and “extreme

intolerance” are the essence of this case is not only irrational, but

cynical. “Bigotry” is defined by Webster’s Dictionary as “obstinate and

A-33

said, that “[t]he essence of the employer’s business is not a

‘discipleship for Christ’ * * * but rather the operation of

an exercise emporium” is impermissibly to substitute the

examiner’s business judgment for Owens’ business judg-

ment. The examiner, at the same time, decrees a dichotomy

between Owens’ beliefs and practices, divorces the sacred

from the secular, does not distinguish praying on one’s

knees on Sunday from preying on other persons in the

marketplace on Monday, and nerceives no significant dif-

ference between the commitment of conviction and the

detachment of a possibly more casual Sabbath ceremony

or community convention.

The examiner’s view seems to reflect what Harold J.

Berman, James Barr Ames, Professor of Law, Harvard

University, calls “[t]he fundamental changes that have

taken place in our legal institutions during the past two

generations [as] part of a transformation of the entire

estern legal tradition, marked particularly by its discon-

nection from the religious foundations upon which it was

built.” He concludes:

[A]s a matter of historical fact the legal systems of

all the nations that are heirs to the Western legal

tradition have been rooted in certain beliefs or pos-

tulates: that is, the legal systems themselves have

presupposed the validity of those beliefs. Today those

beliefs are postulates—-such as the structural integ-

rarity of law, its continuity, its religious routs. its

transcendent qualities--[which] are rapidly disap-

unreasoning attachment to one’s own belief * * * with intolerance of

beliefs opposed to them.” If Owen’s Christian conviction is “bigotry,”

the same may be said of Orthodox Jews. Muslims, Hindus, and others

who believe theirs is the true religion. Still worse, it comes close to

defaming Jesus for saying, “I am the way, I am the truth, I am the life;

no One goes to the Father except by me.” John 14:6.

A-34

pearing not only from the minds of philosophers,

not only from the minds of iawmakers, judges, law-

yers, law teachers, and other members of the legal

profession, but from the consciousness of the vast ma-

jority of citizens, the people as a whole; and more

than that, they are disappearing from the law itself.

The law is becoming more fragmented, more subjec-

tive, geared more to expediency and less to morality,

concerned more with immediate consequences and

less with consistency or continuity.”

Contemporary theologians of national scholarly stature

address more cogently the premise advanced in this Pari

I, preliminary to reaching the fundamental constitutional

issue in all these cases.

Martin E. Marty, Ph.D.,” wrote in U.S. News & World

Report:

We tend to underestimate the power of religion in

people’s lives, because for many years in America

religion had become a private affair. * * * I do not

believe in turning schools into churches, but our

children would be well served by courses teaching

about the role of religion in human life. Schools

should teach reality, and media should cover reality;

yet we’ve largely screened out the reality of religion

in society. A youngster can watch 15 years of

children’s TV and learn about the mailperson and

*Religious Foundations of Law in the West: An Historical Perspective,

1 Journal of Law and Religion 3, 3, 41-42 (Summer 1983).

*8Dr. Marty is an ordained Lutheran clergyman and a professor of Modern .

Church History, University of Chicago. He is publisher of Context, a

commentary on religion and culture, and associate editor of Christian

Century magazine. See also infra note 18 and accompanying text.

ee

A-35

the grocer but never see a rabbi, monk or minister.

* * * The group I would regard as the next frontier

for religion is that huge class of young adults—the

high-rise, high-tech people—who devote tremendous

energies to their careers and take the pressure off

through a kind of hedonism. There are religious stir-

rings among them, yet few of them are attracted to

established churches. This group and millions of

other Americans are likely to pursue religion entirely

privately, which can be a fine expression of personal

freedom but a problem when it comes to reaching

people and reforming society.

U.S. News & World Report 46 (Sept. 24, 1984).

Peter J. Gomes, Ph.D.,” writing in the Minneapolis Star

and Tribune, Oct. 12, 1984 (Commentary) at 19A, wrote:

In what we like to describe as our secular and

pluralistic republic, our problem is with those who

now appear unwilling to leave well enough alone

in the business of religion. The “problem” with re-

ligion, of course, is the religious, those who take it

seriously, those who are unwilling to be among Swift's

“Anythingarians.” They know what Edmund Burke

meant when he wrote, “Nothing is so fatal to religion

as indifference, which is, at least, half infidelity.”

To such as these, a general religion is no religion at

all.

“Dr. Gomes is an ordained clergyman in the American Baptist Church.

He is Plummer Professor of Christian Morals, Harvard University, and

Minister of Harvard’s Memorial Church. Time Magazine, Dec. 31, 1979,

at 67, listed him among its selection of the seven greatest preachers in

the United States

ee

A-36

James Hitchcock, Ph.D.,* in an October 1984 address at

Hillsdale College, reported in its February 1985 issue of

Imprimis, said:

In recent years there has been a coming together

of Catholics and Evangelicals motivated by a grow-

ing recognition of the threats to Christianity itself

posed by both the secular culture and by liberal

Christianity.

Liberal Christianity can be defined as the assump-

tion that religion is under an obligation to adapt it-

self completely to changing cultures. Ultimately, it

does not believe in transcendent divine revelation but

conceives religion as born of the on-going “religious

consciousness” of the human race. Virtually every-

thing in religion, including finally even God, is re-

garded as a human creation, which human beings

therefore can, and even must, change in order to meet

changing human needs. By contrast, orthodox

Christians believe that the source of their religion

is God’s self-revelation of Himself to His people.

It is at this point * * * that the widest gulf exists

in contemporary Christianity. It is not a gulf which

runs between denominations, but cuts across prac-

tically all denominations, running through the mid-

dle of many.

Richard John Neuhaus,” interviewed in the Nationa!

Catholic Register (reprinted in The Presbyterian Layman

**Dr. Hitchcock is Professor of History, St. Louis University, A Jesuit

school. He chairs the Catholic League for Religious and Civil Rights.

> is past president of the Fellowship of Catholic Scholars and former

ibd of Communio.

"Mr. Neuhaus is a Lutheran clergyman, commentator. avd civil rights

activist.

oe

A-37

10 (Nov./Dec. 1984)), gave this answer to the question,

“How can Christians instill Biblical values into a pluralis-

tic society?”:

What we need in this society more than anything

else, is exemplary communities of Christian virtue,

both private and public. Secondly. Christians should

be uninhibited in articulating their beliefs in the

public arena. The third task, which is terribly im-

portant, is to find points of agreement with those who

are not motivated by the same biblically based values

that motivate us.

Orthodox Judaism, no less than Christianity, has no

sterile dichotomy like that imposed by the examiner as

dispositive in this case. Milton Steinberg,” in his excellent

book for non-Jews, Basic Judaism, writes:

Judaism, being more than a church, is broader in its

interests than theology and ethic. It is, in fact, no

less than a full way of life. Wherefore it seeks to

mold not only the beliefs, morals, and worship of the

Jew, but his every act, his eating, drinking, work

and play. Ritual is the instrument designed to -this

end, carrying the Jewish religion into every nook and

cranny of his being until nothing he does is un-

touched by Judaism.

M. Steinberg, Basic Judaism 136 (1947).

The above-quoted views of professionals occupying pres-

tigious positions in academia and pulpits in the United

‘Rabbi Steinberg received his Master's Degree in Philosophy from Colum-

bia University and an honorary degrce of Doctor of Hebrew Letters

from the Jewish Theological Seminary of America. He was Rabbi at the

Park Avenue Synagogue in New York until his death in 1950.

A-38

States are confirmed by parishioners in the pews of Min-

nesota churches. The Institute of Ecumenical and Cul-

tural Research, located on the premises of St. John’s Uni-

versity, Collegeville, Minnesota, recently undertook a 5-

year, $200,000 study “to learn how Christian faith af-

fects the lives of church members in Minnesota, in order

to gain information concerning the internal condition of

the churches and their relation to society.” The nature

of the study and its extensive findings were published in

a 1983 book entitled Faith & Ferment: An Interdiscipli-

nary Study of Christian Beliefs and Practices (hereinafter

Faith & Ferment), edited by Robert S. Bilheimer, a Pres-

byterian minister and executive director of the Institute.

The study consisted of questionnaires sent to some 2,000

church members and ministers in various denominational

churches in demographically representative counties, fo!-

lowed by intensive personal interviews with, among others,

several of those who had responded to the questionnaires.

The study was an interdisciplinary collaboration, with the

design of the inquiry developed by a professional group of

anthropologists, sociologists, and psychologists from the

University of Minnesota.” Sister Joan D. Chittister, O.S.B.,

“To obtain a random sample of active church members, the project em-

ployed a two-stage sampling design to determine which members should

receive questionnaires. The first stage used the same seven geographical

regions employed in the reporting of state vital statistics; for the second

stage, two adjacent counties within each region were selected at random

to serve as sampling domains for the study. Churches within these coun-

ties were then chosen randomly from phone lists in such a way to as to

ensure representation from each region proportional to its population.

In all, 210 churches were selected and the pastor at each was asked to

select 10 members of his or her congregation. When the initial solicita-

tion failed to elicit a sufficient number of replies, an additional solici-

tation was mailed to 210 alternate churches that had been chosen from

the telephone directories in anticipation of such a contingency. These

alternate churches were selected from a different sct of 14 counties

chosen in the manner previously described. Jd. at 334-35. In addition

| ee ee

A-39

Ph.D., the project coordinator and a professional con-

sultant to religious organizations, prepared a unified pre-

sentation of the project’s major findings, which appears in

the first part of Faith & Ferment. The next part of Faith

& Ferment presents a historical and theological analysis

of the data by Dr. Martin E. Marty, a co-producer of the

project, followed by a third part made up of supple-

mental essays by lay and clerical members of the com-

mission. Veteran religion reporter Willmar L. Thorkelson,

a lay member of the Faith & Ferment project, said,

““Monumental’ is the word that journalists would use to

describe [it].” Faith & Ferment at 273. It is a study that

has not been replicated in any of the other states.

The most inportant finding, as reported in Faith & Fer-

ment:

In the minds of these respondents, work and faith

are clearly interrelated. More than three-fourths of

to questionnaires, 101 personal interviews were conducted. A portion

of the interviewees were drawn from those who returned questionnaires

and others were drawn from those who expressed interest. Jd. at 12-13.

The survey therefore obviously was not based upon a more exact

statistical sampling, a in a Gallup Poll, and the answers of respondents

may be skewed by the nature of the questions asked in the in-depth

interviews. Nonetheless, designers of the project concluded that “[t)he

data presented * * * provide a reliable base upon which to achieve the

stated aim of Faith and Ferment (sic): ‘to produce hypotheses of weight

concerning the dimensions, the problems and promise of the present

situation’.” Id. at 337.

The Gallup Poll annually surveys church attendance by adults in five

selected weeks—asking the question, “Did you, yourself happen to

attend church or synagogue in the last seven days?”—using a statisti-

cally more valid sample of the adult population within four regions of

the United States but without illuminating more than the single fact of

attendance. The most recent poll, released December 20, 1984. showed

these percentages and attendance: South, 44; Midwest, 42; East, 38:

West, 33. The Faith & Ferment project concentrated on the attitudes of

those who were identified as churchgoers, but added more information

concerning the extent of their attendance: “[h]alf of them report that

they go [to church] at least once a week * * * [a]lmost half (49%)

said that they watch religious programs on TV at least twice a month.

These are not people who describe the value of church without going

to any.” Jd. at 79.

ii i I Ne |

A-40

them (79%) see their work as being in harmony with

their Christian faith. Some (13%) say that the work

they do for a living has little or nothing to do with

their faith. Few (7%) believe that what they do to

earn their livelihood conflicts with their faith. But

regardless of their answers, most of them see faith

as an acceptable and intelligent guide in the market-

place. It directs their conduct in their daily work.

Many (81%) try to be an example for Christ while

at work. And in a society that urges people to keep

a proper distance between their religious convictions

and their public activities, faith requires a surprising

number (39%) to tell others on the job about

Christ. * * * [OJne thing is all but certain: what-

ever is going on in the American marketplace is per-

ceived by Christians in Minnesota to be within the

purview of faith.”

"Faith & Ferment at 133-35. There were other specific findings that are

relevant to the issues discussed at various points in this opinion, includ-

ing Part V, among them these:

[T]he church members who participated in this study claim that fam-

ily worship at home is a regular and even frequent part of their lives.

Over two-thirds (67%) pray at meals “most always.” Almost half

(48%) say they worship at home as a group every single day by

reading Scripture or some spiritual book, with the rosary, or in family

night prayer. Twenty-five percent reported that they never pray as a

family or, if they do, make it a practice only on holidays. * * * For

most Catholics, Evangelical Covenant members, Lutherans, and Bap-

tists in the sample (51%-68% ), family worship is reportedly a daily

exercise.

Id. at 26.

Almost every respondent (95%) said that the Bible is in some

authoritative sense the Word of God and that this is a necessary

belief for all Christians. It was not surprising, then, to find that a

large portion of the Christian community (77%) felt strongly that

reading the Bible is important for the development of their spiritual

lives. Almost all respondents (92% ) credited the reading of the Bible

as having at least some importance for their spirituality. Even 59%

of the Roman Catholics, for whom Bible Study has not been the

A-41

II.

The Statutory and Constitutional Focus of the Human

Rights Act

Minn. Stat. § 363.03 (1984)—subject to a prefatory

exception for bona fide occupational qualifications—con-

tains a statutory subdivision declaring the following em-

ployment practices of an employer to be unlawful and

prohibited discriminatory acts: requiring an applicant for

employment to furnish information that “pertains” to re-

ligion, sex, or marital status (subdivision 1(4) (a)); re-

fusing to hire an applicant for employment or maintaining

a system of employment which “unreasonably” excludes a

person seeking employment because of religion, sex, or

marital status (subdivision 1(2) (a)); and discharging an

employee or discriminating against an employee with re-

spect to upgrading of position because of religion, sex, or

marital status (subdivision 1(2) (c)). Minn. Stat. § 363.03,

subd. 3, additionally prohibits denying full and eqnal

focus of spiritual formation, were convinced that the Bible is essential

to their personal spiritual development.

s-* * *

Forty-one percent of the respondents surveyed believe that in the

Bible “people report verbally what God said and that the Bible in

the original text contained no errors.”

*s* * *

In general, then, these Christians believe that God is present in

time and that their lives are marked and managed by a divine love

and will, that prayer and Scripture link the mind of God and the

matter of life, and that the Christian message is determinative for

the salvation of the world. * * *

Consequently, perhaps, their sense of personal accountability is

high.

Id. at 66-77. Jerome P. Theisen, O.S.B., S.T.D., Abbot of St. John’s

Abbey, Collegeville. Minnesota. echoed similar observations by others

of the members: “What is particularly striking in the data is the high

incidence of the practice of prayer and the remembrance of God. * * *

God is active in the very midst of work and leisure, love and anxiety,

decisions and problems. * * * One fact is clear: the Christians of

Minnesota want and expect to be involved in matters that extend beyond

the walls of the church building.” Jd. at 296-99.

A-42

enjoyment of the facilities of a place of public accommo-

dation because of religion or sex, and a violation of this

subdivision is declared to be a misdemeanor. Minn. Stat. §

363.101 (1984) .The test of these provisions, in relevant

part, is set forth in the margin.”

The Minnesota Constitution deals in direct terms with

the validity of the Human Rights Act, both in its text and

as applied in this case. Declaring in its Preamble that it

was ordained and established in gratitude to God for our

civil and religious liberty and to secure its blessings for

posterity, it guarantees in article !, section 16, every per-

son’s freedom from “control of or interference with the

rights of conscience.” By article 1, section 3, it guarantees

*°The Minnesota Human Rights Act, by the following clauses of Minn.

Stat. § 363.03, subd. 1 (1984), forbids the following:

Except when based upon a bona fide occupational qualification,

it is an unfair employment practice:

*>es ©

(2) For an employer, because of race, color, creed, religion,

national origin, sex, marital status, * * * disability, or age,

(a) to refuse to hire or to maintain a system of employment which

unreasonably excludes a person seeking employment; or

(b) to discharge an employee; or

(c) to discriminate against an employee with respect to his hire,

tenure, compensation, terms, upgrading, conditions, facilities, or

privileges of employment.

ses es €

(4) For an employer * * * before a person is employed by an

employer * * * to

(a) require the person to furnish information that pertains to

race, color, creed, religion, national origin, sex, marital status * * *

Minn. Stat. § 363.03, subd. 3 (1984), prohibits the following:

It is an unfair discriminatory practice:

To deny any person the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, and accommodations of a

public accommodation because of race, color, creed, religion, dis-

ability, national origin or sex. * * *

Minn. Stat. § 363.101 (1984) provides:

In addition to all other remedies provided under this chapter, every

person who commits an unfair discriminatory act as set forth in

section 363.03, subdivision 3, or aids, abets, incites, compels, or

coerces another to do so, shall be guilty of a misdemeanor.

(emphasis supplied).

A-43

the right of all persons to freely speak their sentiments on

all subjects. The full text of these two sections of the Min-

nesota Bill of Rights is set out in the margin.”

The three-part factors of Constitutional analysis

The state acknowledges that a three-step analysis should

be undertaken when a statute is challenged as infringing

upon these fundamental interests, namely: (1) whether

the statute imposes a burden upon the free exercise of

those rights; (2) if so, whether the imposition of that burden

is justified by a compelling and overriding government in-

terest; and (3) even so, whether the challenged statutory

proscriptions are the least restrictive means to achieve the

state’s objectives.

The function of the examiner was a schitzoid one, which

accounts for the unbalanced result in this case. On the one

hand, section 363.11 of the Human Rights Act, in its in-

terpretation and application, directs that the provisions

of the Act “shall be construed liberally for accomplish-

ment of the purposes thereof,” and section 363.12, subd.

1, declares it to be the public policy of this state “to secure

“Minn. Const. art. 1, § 3, provides:

The liberty of the press shall forever remain inviolate, and all

persons may freely speak, write and publish their sentiments on all

subjects, being responsible for the abuse of such right.

Minn. Const. art. 1, § 16, provides:

The enumeration of rights in this constitution shall not deny or

impair others retained by and inherent in the people. The right of

every man to worship God according to the dictates of his own

conscience shall never be infringed: nor shall any man be compelled

to attend, erect or support any place of worship, or to maintain any

religious or eccesiastical ministry, against his consent; nor shall any

control of or interference with the rights of conscience be permitted,

or any preference be given by law to any religious establishment or

mode of worship; but the liberty of conscience hereby secured shall

not be so construed as to excuse acts of licentiousness or justify prac-

tices inconsistent with the peace or safety of the state. nor shall any

money be drawn from the treasury for the benefit of any religious

societies or religious or theological seminaries.

A-44

for persons in this state freedom from discrimination.” Re-

sponsive to that mandate upon the administrative agency

—and without power to determine issues of constitutional

law—the examiner, by his findings, conclusions, and or-

ders, interpreted the statute not only in a “liberal” fashion

but in a remarkably extravagant way.

On the other hand, the three-factor constitutional analy-

tical framework has the opposite mandate, for its imposes

restrictions against intrusion upon fundamental and over-

riding civil liberties. The examiner acknowledged, as to

the first factor, that the sincere religious beliefs of Owens

were burdened by the Act, but with respect to the second

and third factors, he did no more than make the un-

critical declaration that the burden was justified by a com-

pelling state interest, without less restrictive alternatives

of interpretation or enforcement.

The statutory and constitutional facts are not in all re-

spects neatly separated, and they tend to coalesce. The

greater the magnitude of the individual’s liberty interest,

the more compelling must be the state’s interest sufficient

to override the individual’s. Similarly, the greater the in-

dividual’s interest, the greater must be the state’s search

for less restrictive alternatives of interpretation and -en-

forcement. Among such alternatives, constitutionally-of-

fensive provisions of a statute may effectively be read out

of the statute to save the statute or, conversely, safeguard-

ing provisions may be read into the statute to salvage it.

As we declared in State on Behalf of Forslund v. Bronson,

305 N.W.2d 748, 751 (Minn. 1981):

It is well established that if a statute ‘s ambiguous,

the corstruction which avoids constitutional conflict

is preferred although such construction may be less

—

A-45

natural. If the act is reasonably susceptible of two

different constructions, one of which would render it

constitutional and the other unconstitutional, we must

adopt the one making it constitutional. Additional-

ly, in the interpretation of statutes, the courts are re-

quired to discover and effectuate legislative intent, to

consider objects which the legislature seeks to accom-

plish by the statute and the mischief sought to be

remedied, and to avoid the result which would be

absurd or would do violence to the language of the

statute.

(citations omitted).

A pervasive issue, significant in both a statutory and

constitutional sense, is both illustrative of this coalescence

and important to all the employment-related complaints

of discrimination: are the statutory prohibitions uncom-

promisingly absolute and are the stated exceptions, par-

ticularly the general prefatory exception for “a bona fide

occupational qualification,” just as uncompromisingly nar-

row? There are other general and specific exceptions that

give negative answers to these really rhetorical questions:

(a) A rule of reason is incorporated in section

363.03, subd. 1(2) (a), which prohibits a system of

employment which “unreasonably” excludes a person

seeking employment.

(b) An exception is made by section 363.03,

subds. 3 and 4, which require physical accommoda-

tions for disabled employees, if, because of size or

type of operation of the employer’s business or the

cost of compliance, the employer would suffer a hard-

ship.

A-46

(c) An exemption from the provisions with regard

to age is made by section 363.02, subd. 7, for per-

sons in the summer youth employment program.

(d) An exception is made by section 363.02,

subd. 1(2), for a “religious or fraternal corporation,

association, or society with respect to qualifications

based on religion, when religion shall be a bona fide

occupational qualification for employment.”

(emphasis supplied).

The examiner missed the opportunity to apply his sa-

cred-secular dichotomy to the exception for religious and

fraternal corporations, neither of which is defined in the

Act. Consulting Webster’s Dictionary, he narrowly defined

“religious corporations, associations or societies” as only

those “whose primary purpose is ecclesiastical, which is

defined as ‘of or relating to a church, especially as a for-

mal and established institution’ or ‘of or relating to the

formal and established institutions or government of any

religion.’ ”*” Based on this definition, the examiner dis-

missed Owens’ claim for ai exception, stating that the fact

that Owens sperates the club ia a manner based on his

religious convictions is incidental to the primary purpose

of the business.

The examiner’s stated reason for rejecting Owens’ claim

for a religious corporation exception encounters substan-

tial problems of inconsistency when applied to the statutory

??Minnesota Statutes ch. 315 governs the organization of religious corpo-

rations. Both the YMCA and the YWCA are, by sections 315.44 and

315.49 (1984), incorporated under this chapter. They do not, however,

meet the examiner’s definition of a religious corporation. association,

or society — but each does, in substantial part, fit his label of “oxercise

emporium.” This indicates, in any event, an expansion of the <xception

noted in the preceding paragraph of the text.

a aaa

A-47

exception for fraternal corporations, associations, or sO-

cieties, some of which are church related and others of

which are not. Fraternal beneficiary associations are or-

ganized under Minn. Stat. ch. 64A (1984). Section 64A.-

02 defines such association as:

Any corporation, society, order, or voluntary associa-

tion without capital stock, organized and carried on

solely for the mutual benefit of its members and their

beneficiaries, and not for profit, having a representa-

tive form of government. and having a lodge system

with ritualistic form of work or a branch system that

confines its membership to any one religious denom-

ination, and which shall provide for payment of ben-

efits in accordance with this chapter.

But section 64A.03 provides that a ritualistic form of work

or ceremony is not required where membership is confined

to members of any one religious denomination. The ex-

ceptions stated in section 363.02, subd. 1, however, are

not confined to the limitations of section 64A.02. A com-

mon function of fraternal benefit associations is the pro-

viding of life, accident, sickness, and disability insurance

for their members (section 64A.48), but they may trans-

form themselves into mutual !ife insurance companies as

well (section 64A.15), They are highly regulated by the

insurance commissioner with respect to policy provisions,

reserve funds, and other financia! matters (sections 64A.-

19-43). Section 64A.44 exempts these associations from

taxation under the general tax or revenue laws, except

as to real estate. Some fraternal benefit assoc'ations are

religion-related, such as the Catholic Aid Association and

Lutheran Brotherhood; others are not, such as the Sons of

A-48

Norway, the Degree of Honor Protective Association, and

the Woodmen of the World Insurance Society.”

The important point concerning the fraternal benefit as-

sociations is that they operate in the secular marketplace

in competition with other insurance companies, differing

only as to the character of the population from which they

solicit business. It is true that they are exempt from taxa-

tion as charitable institutions, but it is equally true that not

all charitable institutions are exempt from the provisions

of the Human Rights Act, such as nonprofit charitable

hospitals. It is true that some of the fraternal benefit as-

sociations provide financial support to churches, church-

affiliated schools, and other religious institutions. It is

equally true, of course, that many successful businessmen

with strong religious commitment, such as Owens, give sub-

stantial support to such institutions; indeed, Owens

founded and supports Chapel Hill Academy in Deephaven,

Minnesota, a strongly religion-oriented elementary sec-

ondary school.

Our legislature has, in other legislation, demonstrated

sensitivity to the conflict between freedom of religion and

the operation of secular statutes where the potential for

conflict was readily predictable, as in the case of Sunday

closing laws. Unlike such statutes in other states, of which

Pennsylvania was one, the Minnesota statute, Minn. Stat.

§ 325.913(5) (1967), permitted Sunday opening for “a

place of business which is regularly closed on Saturday

*The information stated in this paragraph, other than references to Minn.

Stat. ch. 64A, is taken from a brochure entitled The Story of Fraternal

Benefit Societies in America, obtained from the Minnesota Insurance

Information Center. No information is available as to how circumspect

these competitive fraternal benefit associations are in limiting sales of

insurance only to persons genuinely qualified by religious or other

membership criteria.

A-49

and which was actually closed all hours on the Saturday

before the Sunday on which such sale of restricted items

occurs.” This exception, notwithstanding the state’s burden

of enforcement, was designed to avoid a burden upon

those whose faith, like those of the Orthodox Jewish faith,

requires the closing of their places of business and total

abstention from all manner of work from nightfall each

Friday until nightfall each Saturday. Taking note of this

in State v. Target Stores, Inc., 279 Minn. 447, 459, 156

N.W.2d 908, 916-17 (1968) (although invalidating the

statute on grounds of vagueness, as a denial of due proc-

ess under the United States and Minnesota Constitutions),

we said:

The statute in this case reflects a legislative attempt

to alleviate the indirect religious burden upon Sab-

batarians by granting those merchants a restriction-

free Sunday if they close on Saturday, while at the

same time requiring no religious declaration for the

exercise of that right.

Our legisiature, unlike the examiner, obviously did not

think that religious freedom was irrelevant merely because

its exercise only to secular commercia! activities. Neither

was the legislature saying, as does the majority opinion,

that such an exception would “frustrate” the statutory ob-

jectives.

It would do no violence to the statute either to impose

upon Owens a less restrictive definition of “religious cor-

poration” »r simply to extend to his business-discipleship

the comparable exception granted by the statute to frater-

EEE

A-50

nal corporations, associations, and societies.“ To do so

would not, contrary to the majority opinion, “emasculate”

the statute, and it is consistent with the legislature’s own

action in providing several exceptions to application of the

statute. Not to do so, on the other hand, raises grave is-

sues of freedom of religion and speech and, to some extent,

the denial of equal protection and due process under the

Minnesota Constitution. The exceptions for which I argue

would be dispositive of the principal issues raised by the

complaints against Owens.

III.

Analysis of Hearing Examiner’s Findings vf Fact, Cow-

clusion of Law,and Enforcement Orders.

The findings of fact and conclusions of law, together

with cease and desist orders based thereon,” on the nine

**The religion-based exception for churches, of course, makes sense. A

Jewish synagogue or temple should not be required to employ a Chris-

tian or other person who inherently would be indifferent, even if not

“antagonistic,” to its beliefs and practices. The Catholic Bulletin of the

Archdiocese of St. Paul-Minneapolis obviously would not choose to

employ a Lutheran as its editor. Trinity Covenant Church should not

be required to employ a Unitarian. The incompatible religious identifi-

cation would be ascertained by direct inquiry. Unlike these religious

corporations, and unlike some fraternal benefit associations, Owens

notably does not limit employment to persons of any one religious

affiliation.

**The examiner deferred to later hearing a determination of statutory

money damages to be paid to the charging parties. He did issue a cease

and desist order in the following terms, prohibiting:

(a) refusal to hire any person because of that person's religious

beliefs or practices;

(b) refusal to hire any person because that persor nas stated an

objection to the religious beliefs or practices of the Respondents’

management or other employees;

(c) inquiry into the religious beliefs or practices of any prospective

employee;

(d) inquiry into the religious beliefs or practices of any employee;

(e) taking any adverse action against any employee because of that

employee’s religious beliefs or practices;

A-51

complaints determined adversely to Owens and his asso-

ciates, Crevier and Larson, may be grouped for discus-

sion into five categories. The fourth and fifth of these cate-

gories present issues not directly considered in the prior

parts of this opinion, and all of them consider issues of

freedom of speech, in addition to the main theme of free

exercise of religion. The text of the opinion can only high-

(f) denial of a supervisory or management position to any person

based upon that person’s beliefs or practices:

(g) requiring, soliciting or suggesting the participation in Bible

studies or other religious exercises or practices on the part of any

employee;

(h) taking adverse action against any empioyee who does not partici-

pate in Bible studies or any other religious exercises or practices

because of that non-participation;

(i) taking any adverse action against any employee who objects to

the religious practices or exercise of management or of any other

employees because of their objection(s) thereto; and

(2) Discriminating against any person on the basis of marital

status, including:

(a) refusai to hire any person because of marital status;

(b) requiring any prospective employee to furnish information per-

taining to marital status;

(c) taking adverse action against any employee because of marital

status;

(d) denial of a supervisory or management position to any person

based upon that perscn’s marital status; and

(3) Discriminating against any person on the basis of sex, in-

cluding:

(a) refusal to hire any young, unmarried women who live away from

home without their parents’ consent because of that lack of consent;

(b) inquiry of any young, unmarried woman as to whether she lives

away from home and, if she does, whether she has her parents’

consent;

(c) refusal to hire any young, unmarried woman who desires to

work and does not have the consent of her parents, because of that

lack of consent;

(d) inquiry of any young, unmarried woman as to whether she has

her parents’ consent to work;

(e) refusal to hire any married woman who desires to work and does

not have her husband’s consent, because of lack of consent;

(f) inquiry of any married woman as to whether she has her hus-

band’s consent to work; and

(4) Denial to any person of the full and equal enjoyment of its

services, facilities and privileges as a public accommodation, to wit:

(a) harassment or ridicule of any member, guest or other use of its

services and facilities because of religion.

A-52

light the examiner's findings. The factual findings of the

examiner are set forth verbatim in separate footnotes as

to each of the charging parties, but omitting for brevity

findings as to dates of prior employment and experience

found to qualify them for the positions involved, which

are without significance to the issues considered in this

opinion. These footnoted findings will make even more

self-evident the unwarranted sweep of the cease and desist

orders.

1. Finding: requiring the furnishing of information

related to religion or marital status.

The finding and conclusion as to Joseph Williams” is

limited solely to this; and a reading of the finding in

the footnote reveals its lack of substance. The findings and

conclusions as to Robin Ann Carnahan” and Beverly Lar-

sen,” however, do involve extensive religion-related inter-

*8Joseph Williams, a champion body builder who worked out at the LaSalle

club, approached Crevier about the possibility of employment. Although

there was no current opening for an associate membership director,

Crevier did discuss with Williams what was involved in the job and

that the job description was based on biblical principles. He explained

to Williams what the religious beliefs of the Sports and Health Club’s

management were, specifically including that Williams had to be a

reborn Christian in order to be hired and also would have to go to

weckly Bible studies. Williams then decided not to fill out an application

for employment, although Crevier offered him the opportunity te do so

for consideration when an opening occurred in the future.

The examiner found that appellants had violated Minn. Stat. $ 363.03,

subd. 1(4) (a), by requiring Williams to furnish information pertaining

to religion before being employed.

“Robin Ann Carnahan was employed as an associate membership director

at the Normandale club. Prior to being hired by appellants she had

two employment interviews, one with Vice President Larson and Vice

President Crevier, and the other with Arthur Owens. The first interview

consisted of questions regarding experience and background in physical

fitness and instruction and as to her attitude toward selling. The inter-

view with Owens related to her religion, her marriage, and her family,

namely, whether she was a Christian; if she read the Bible; if she went

to church; if she would speak freely about her religion to other people;

whether she was married; whether she and her husband prayed together

and went to church together; and whether her parents, who were di-

vorced, were still married. Owens perceived a possible antagonistic

A-53

rogation concerning Bible reading, prayer practice, and

church attendance, together with questions about the di-

vorces of their parents. These findings are then joined with

other findings of discrimination in employment opportun-

ity.

Forbidding an employer from asking any questions re-

lated to religion or morality denies to that employer a

attitude by her demeanor and reluctance to speak freely during the

interview, particularly when she answered questions about her parents

and their divorce. Subsequent to her employment, during a series of

conferences with associate membership directors at the club to discuss

their goals in the organization ani their general attitudes, Crevier asked

for her opinion of Owens. She expressed her disapproval of religious-

oriented employment interviews and of the sale of Bibles in the club’s

lobby. She also compared the unavailability of health-oriented literature

at the club with the great volume of Christian material available for

members in the lobby and lounges. Referring to the requirement that

all management employees were required to attend Bible studies as part

of regular managers’ meetings, she asked Crevier if it would be possible

for a manager or assistant manager to attend only the business portion

of such meetings. Crevier iold her that if that was her attitude, he would

have to dismiss her. Carnahan was told that it was a requirement that

employees in management positions had to go to Bible studies.

The examiner concluded, as a matter of law, that appellants had

violated Minn. Stat. § 363.03, subd 1(2)(b), by discharging Carna-

han because of religion and also had violated subd. 1(2)(c) by discrimi-

nating against Carnahan because of religion with respect to the up-

grading of her employment.

*“Beve;ly Larsen was employed at the Normandale club as an associate

membership director. Larsen’s original interview with Owens focused

on personal matters dealing with her religion, her marriage, and her

parents, who were divorced. She too was asked whether she and her

husband went to church and whether they prayed together. She was

also asked to answer many questions regarding the breakup of her

parent’s marriage. She was then hired. During a subsequent interview,

when Vice President Larson asked whether she was interested in a

management position, she said that she was but volunteered that she

did not think she was probably “Christian” enough for Owens. She said

that she would be happy to work in management if Owens did not pres-

sure and push her into being his kind of Christian, referring particularly

to the Bible studies and prayer that were part of the mandatory manag-

ers meetings. The next day, Crevier dismissed her, giving as a reason

that she had a “negative attitude” about the club, meaning that she had

a “spiritual problem.”

The examiner concluded that appellants had violated Minn. Stat.

§ 363.03, subd. 1(2)(b) by discharging Larsen because of religion and

also had violated subd. 1(2)(c) by discriminating against Larsen be-

cause of religion with respect to the upgrading of her employment.

A-54

right to important information relevant to suitability for

employment. In a recent survey, 100 vice presidents and

personnel directors of “Fortune 1,000” companies, as re-

ported in the Freeway News, Feb. 13, 1985, were asked:

“What employee behavior disturbs you the most?” Their

reported answers:

By far, dishonesty and lying topped the list of the

most objectionable behavior. If a company believes

an employee lacks integrity, all of his or her positive

qualities—ranging from skill and experience to pro-

ductivity and inte]l’zence—become meaningless.

Next on the unpopularity hii parade came irre-

sponsibility, goofing off and attending to personal

business on company time.

xk K *

Employees who demonstrate an absence of com-

mitment, concern, or dedication were often cited as

employees not deserving of raises and promotions.

A professionalism survey report by the Minnesota Bar As-

sociation, reported in the March 1985 issue of The Bench

& Bar of Minnescta, confirms this fundamental qualifica-

tion:

Honesty and Integrity:

These are the bywords of professionalism in Min-

nesota as indicated by the 1,748 professionalism sur-

veys returned this past December. For those who

decry the lack of eth'cs and moral fiber in today’s so-

ciety, this is a resounding affirmation that persons

with such attributes are indeed recognized. For the

A-55

rest of us, such responses provide a heartwarming

experience which re-affirms our inner convictions.

Without suggesting that nonreligious persons inevitably

lack qualities of honesty or commitment to duty, there is a

substantial degree of assurance that those of genuine re-

ligious commitment will have those qualities. It can hardly

be doubted, furthermore, that those who are “antagonistic

to the gospel,” that is, antagonistic to Owens’ manner of

conducting his business, demonstrate “an absence of com-

mitment, concern or dedication” to the interests of this em-

ployer valued by the surveyed personnel directors.

These limitations upon employee interviews are imper-

missible limitations upon freedom of speech, unless the

state has a compelling interest which overrides that in-

dividual freedom. But it is only a discriminatory employ-

ment decision of the employer, not the inquiry itself, that

should invoke the state’s concern. The fact of the inquiry

may prove the inquirer’s knowledge of a person’s religion

or marita! status and tie an inference from that knowledge

to an otherwise unexplained adverse decision, but the ex-

aminer made no such linkage in these three cases. The

most obvious example is that of Joseph Williams, for the

complaint was limited to the inquiry only. The inquiries of

Carnahan and Larsen concerning their parents’ divorces

were not linked to any violation based on their own marital

status, nor could they have been.

A closer, yet questionable, linkage is that relating to

Katherine Lamannsky. infra note 36. Even here, however,

the information concerning her divorce did not surface in

response to an inauiry by the employer. Where the record

establishes, as here, that the employer does employ divorced

A-56

persons, the finding that Lamannsky’s “status as a divorcee

was what cost her the job” is most questionable. The

cases of Carnahan, Larsen, and Lamannsky are the same

to the extent that they prompted a gratuituous lecture by

Owens and Crevier on marriage and divorce and the dis-

parate responsibilities of husbands and wives in preserving

troubled marriages. It was the unresponsiveness of Laman-

nsky to this attempted dialogue, not the fact of the divorce,

that precipitated her rejection. The point is that a

lecture, however anacronistic,” is not itself a violation of

the statute.

There is remarkable vagueness in the examiner’s as-

sessment of questions to Carnahan and Larsen about read-

ing the Bible, prayer, and church attendance. None of

them identify a particular religion, although they con-

cedely may distinguish the religious from the nonreligious,

If, however, it is impermissible to ask whether a person

**The Scriptural passages upon which Crevier relied for his gratuitous

lecture placing the onus for divorce upon the wife apparently included

1 Peter 3:1. Colossians 3:18, and Ephesians §:22-24, in which St. Peter

and St. Paul enjoined wives to be “submissive” and “obedient” to their

husbands. The same writers. however, enjoined hushands to “respect”

and “love” their wives. 1 Peter 3:7, Colossians 3:19, and Ephesians

5:33. (The reciprocity of obligations in the familial relationship is

further reflected in Colossians 3:20-21 and Ephesians 6:1-4. in which

children are charged with a duty to “obey” parents, but parents are

told not to “irritate” or “anger” their children). But over-arching all

these surely is 1 Corinthians 13:1-13, the love chapter read at countless

wedding ceremonies.

If the respective duties of husbands and wives are indeed disparate

and immutable, however, that would be equally true of St. Paul's dec-

claration that “i]t is a disgraceful thine for a woman to speak in a

church meeting,” 1 Corinthians 14:33-35, and that “slaves [are to] obey

[their] human masters in all things,” Colossians 3:22. Conversely, if

the injunctions to women and slaves are acknowledged to be anachro-

nistic. the same may be said of any enistle being read to require dis-

crimination between snouses. “[A]lmost all of the respondents fin the

Faith & Ferment project] (94% ) accept the understanding that women

and men are both created in the image of God and are therefore equal

in God's sight.” Faith & Ferment at 34.

A-57

reads the Bible, which is itself a library of books, would

it be impermissible to inquire whether a person has read

such other classics as John Bunyan’s Pilgrim’s Progress

or John Milton’s Paradise Lost or Paradise Regained? Or

would a conversation about the book Faith & Feriient be

impermissible in an employment context?

The preoccupation of the examiner with Bible studies

on company premises has been considered in the forepart

of this opinion as an issue of religious freedom. It arises

again as an issue of freedom of speech from the order of

the examiner prohibiting “soliciting or suggesting partic'pa-

tion in Bible studies.” This is so patently unconstitutional

as to require no other comments beyond identifying it.

2. Finding: dismissing Carnahan,” Larsen,” and

Robert Severin” from their employment on religion-based

grounds.

The right of this employer to establish the work environ-

ment, including mandatory Bible Study for managerial em-

ployees and voluntary sessions for other employees, has

been extensively discussed in Part II. The interrogation of

Cainahan and, to a lesser degree, Larsen was rather ex-

tensive. But it seems clear that they were dismissed for

*°See supra note 25.

“See supra note 26.

Robert Severin was employed as a programmer-associate membership

director at the Midway and Apache clubs. On frequent occasions

throughout 1982, Severin was asked by Owens, Larson, and Crevier

to attend the weekly Bible studies conducted by the manager of the

Midway club. Severin is a Roman Cathclic who believes that worship

should be private or “in church” and kept out of the workplace. He

declined to join in the Bible studies. In January 1983, Severin voiced

the opinion that the club’s staff and management were not as motivated

or showing the same degree of enthusiasm that they had under a

previous manager. Shortly after the staff meeting ended. Severir was

dismissed for having a “bad attitude.” Severin acknowledced on cross-

examination that no one in management ever directly told him that

he would lose his job if he did not attend Bible studies or told him that

he lost his job because of non-attendance at them.

CC —E_—————

A-58

“bad attitude” or “negative attitude” in asserting objections

to this religious work environment. Severin complained

that the staff were not as motivated as they had been

under prior management. Dismissal of malcontent em-

ployees is not a violation of the statute.

3. Finding: refusing to promote Carnahan,” Lar-

sen,* and Steven Bruhjell* to managerial positions on re-

ligion-based grounds.

This issue has been fully considered in foreparts of this

opinion with respect to Owens’ right to have managers who

will be compatible with the basic company policy to be a

“discipleship.” Unique, however, is the examiner's reach-

ing into conversations during a social engagement between

Steven Bruhjell and the Owens family and an at-home

conversation between Bruhjell and Vice President Larson

to find a religion-related violation of the statute. Unlike

Carnahan and Larsen, moreover, Bruhjell resigned and

was not dismissed.

83See supra note 25.

See supra note 26.

“Steven Bruhjell was employed as an associate membership director at

the Normandale club. Shortly after he started working at Normandale,

he played an after-hours racketball game with Arthur Owens and two

of Owens’ daughters. After the game, Bruhjeil and the three Owens

got into a discussion on religion, during which Owens became “strident”

and “tried to advance his beliefs” on Bruhjell, beliefs with which Bruh-

jell openly disagreed. He also had been invited but declined to attend

Bible studies. In late 1974, afier Bruhjell had been passed over for a

promotion, he was told by his then roommate, Vice President Larson,

that he would not be promoted until he became a born-again Christian.

In late 1976 Bruhjell decided to speak directly to Owens in an effort

to find out if it was true that the-only reason he had not been promoted

to management was because of his religious beliefs. Owens admitted

to him that that was the only reason. Shortly thereafter Bruhjell resigned

his employment because he felt he had no future in appellant’s organi-

zation.

The examiner held that appellants violated Minn. Stat. § 363.03,

subd. 1(2)(c), by discriminating against Bruhjell because of religion

with respect to upgrading of his employment.

\ A-59

4. Finding: refusing the applications for employment

of Katherine Lamannsky,” Marilyn Crosby,” and Linda

Perkins” because of marital status.

An issue not heretofore considered relates to the refusal

to employ Crosby and Perkins because they cohabited with

persons of the opposite sex to whom they were not mar-

“Katherine Lamannsky was interviewed for a receptionist position by

Crevier at the LaSalle club in July 1980. During the interview Crevier

learned from the application that she was divorced. He began to probe

about the details why Lamannsky had gotten divorced, and she refused

to tell him beyond the general statement that she and her husband had

grown apart. Crevier told her that the man was the head of the house-

hold and that if she had tried to work it out the marriage would have

Stayed together. He reinforced his point with Bible passages. Because

she persisted in refusing to answer Crevier’s inquiries along this line,

Crevier told Lamannsky that he did not feel she would be fit to work at

the club. She thanked him and left. No specific reason was given for

not employing her.

The examiner found that appellants violated Minn. Stat. § 363.03,

subd. 1(2) (a), by refusing to hire Lamannsky because of marital status.

“Marilyn Crosby was interviewed for an associate membership director’s

position at the Apache club. Crosby was asked personal questions only,

such as whether she had any problems with her father, whether she

had roommates, and with whom she lived. She answered all of the

questions, including telling Crevier that she was single and that she

had recently begun sharing a house with her boyfriend. Crevier there-

upon terminated the interview, telling Crosby that “we won't be able

to hire you because you live with your boyfriend.” He also told her

that if she moved out she could have the job.

The examiner found that appellants violated Minn. Stat. § 363.03,

subd. 1(2)(a), by refusing to hire Marilyn Crosby because of marital

status.

“Linda Perkins, along with other employees, was interviewed to see if

she would be hired under Owens’ new management when he bought

the Minnetonka Racket and Swim Club. She had been employed as a

file clerk and child-care supervisor but, although Owens did not intend

to provide child-care services and had no employment then available

for an office worker who could not type, Owens continued the interview

to see if there was something that could be done to keep Perkins em-

ployed in some other way. He asked her whether she was a Christian

and inquired about where and with whom she lived. She told him that

she lived with her fiance, whereupon the interview terminated forth-

with, and Owens said to her: “You realize that it is sinful, and it is

sinful to God, living out of wedlock * * * and since it is sinful to God,

it is sinful to me.”

The examiner found that appellants violated Minn. Stat. § 363.03,

subd. 1(2)(a), by refusing to hire Linda Perkins because of marital

status.

A-60

ried.” The examiner acknowledges in his memorandum that

there was in this relationship a clear inference of sexual

relations between the cohabiting couples. Minnesota

Statutes § 609.34 (1984) declares such relationship to be a

crime:

When a man and a singie woman have sexual in-

tercourse with each other, each is guilty of fornica-

tion, which is a misdemeanor.

Given the apparently wide-spread incidents of such living

arrangements today, the inquiry ‘yy Owens is not surprising.

Owens did not wish to, and is not required to, “subsidize”

criminal behavior. The extraordinary response of the ex--

aminer to this defense is tnat as a matter of legislative in-

tent, the subsequently enacted Human Rights Act “super-

seded” the criminal statute, a judgment that will come

as a surprise to those legislators who have regularly but

unsuccessfully authored bills to repeal the fornication

statute. The examiner may as well have asserted the repeal

of Minn. Stat. § 144.651 (1984), the Bill of Rignts for

Patients and Residents of Health Care Facilities, which

by subdivision 28 provides:

Residents, if married, shall be assured privacy for

visits by their spouses and, if both spouses are resi-

dents of the facility, they shall be permitted to share

a room, unless medically contraindicated and docy-

mented by their physic‘ans in the medical! records.

“The finding does not relate to sex discrimination, but the cease and

desist order refers to discrimination on the basis of both sex and marit.)

status. “Sex” obviously refers to gender and not sexual activity.

The plain purpose of the statute is to preclude an employer from

having a policy not to employ single persons or divorced persons or

married persons. It is at the least a curiosity that in his several findings

the examiner did not find discrimination against persons in one or the

other status but against all three, a strange application of the statute.

SSS SSL.

A-61

(emphasis supplied). This statute, like the fornication

statute, grants marital status protection in sexual relations

only to married persons.

The examiner’s effort to find discrimination in this re-

fusal of employment demonstrates again his unreasonable

interpretation and application of the Human Rights Act,

for his determination that the criminal statute was sus-

perseded by a civil statute is plainly wrong. As we held in

Target Stores, Inc., 279 Minn. at 473-74, 156 N.W.2d at

925, “[t]he principle of implied statutory repeal is not fa-

vored”: rather. as stated in State v. Sobelman, 199 Minn.

232, 236. 271 N.W. 484 (1937):

Before it can be said that a later act is intended to be

a substitute for the earlier, “there must be unmis-

takable intert manifested on the part of the legis-

lature to make the new act a substitute for the old

and to contain all the law on the subject: for mere

similarity in the provisions of the two statutes is not

enough to effect a repeal, even though the similarity

may be such to cause confusion or inconvenience.”

It is preposterous to impose sanctions upon an employer,

particularly this employer. who refused to employ persons

whose conduct constitutes criminal misbehavior.

5. Finding: denying Miriam Cameron“ full and equal

enjoyment of public accommodations because of religion.

“Miriam Cameron had joined the LaSalle Svorts and Health Club in 1978.

Cameron, a Jew, had noticed no religious emphasis at the club during

the first 18 months of her membership, but in mid-1980. she began to

notice an increase in the proliferation of fundamentalist Christian litera-

ture. The specific charge involves a conversation that occurred in August

1980 following the publication of a book by Cameron entitled Hello,

I’m God and I'm Here to Help You. Cameron and Vice President

Crevier met in a club office. He belittled Cameron’s views and lectured

her on fundamentalist Christian doctrine. Crevier talked in a loud

voice, leaned across the table, and had a stern expression on his face:

A-62

The issue presented by this finding does not involve dis-

crimination in matters of employment and has not been

heretofore considered in this opinion. It is yet another ex-

ample of an ambitiously expansive administrative applica-

tion of the Human Rights Act, this time involving dis-

crimination in public accommodations—a _ provision

which, by its terms, is both civil and criminal. See Minn.

Stat. § 363.101 (1984), supra note 20.

Cameron, a club member and not an employee, as the

examiner found, initiated a conversation in the office of

Crevier’s office on her own initiative, Cameron was not a

which were contrary to Crevier’s religious beliefs. There

ensued a vigorous and “strident” disputation on religious

grounds which disturbed, “overwhelmed,” and “totally

demoralized” her. “The problem,” the examiner said, “is

not with what [Crevier] said. but with how he said it.”

The examiner held that it was “treatment so at variance

with what would reasonably be anticipated absent dis-

crimination * * * that discrimination is the probable ex-

planation for [Crevier’s] conduct.” Just as she came to

Crevier’s office on her own initiative, Cameron was not a

captive but free to end the discussion by simply departing.

It might well be that Crevier’s role was not winsome. but

it is utterly absurd to hold that it was a discriminatory de-

nial of the right to services of the club and to order a re-

fund of Cameron’s initial membership fee. It is noteworthy,

moreover, that Cameron remained as a club member for

Cameron was visibly shaken. Thereafter, both Cameron and her hus-

band decided to terminate their membership and asked for a refund,

which was denied.

The examiner found that appellants had denied Cameron the full

and equal enjoyment of its services ana facilities as a place of public

accommodation because of religion, within the meaning of Minn. Stat.

§363.03, subd. 3.

———

A-63

4 or 5 months following this episode, which would seem to

indicate that the event was not as troublesome as she as-

serted.

To hold, as here, that a vigorous and robust debate on

a religious subject, however controversial, may by statute

or administrative order be prohibited or made subject to a

monetary penalty is a most flagrant denial of freedom of

speech.

IV.

The Minnesota Constitution as Exclusive Basis of De-

cision

The constitutional issues raised in this case focus on the

Minnesota Constitution as the adequate and independent

basis for decision, to the exclusion of the United States

Constitution. A current exposition of this emerging con-

Stitutional practice by Minnesota lawvers Terrence Flem-

ing and Jack Nordby in 7 Hamline Law Review 51

(1984), The Minnesota Bill of Rights: Wrapt in the Old

Miasmal Mist, clarifies the power of state courts to inter-

pret and apply their own constitutional Bill of Rights and

the specific criteria that should govern the decision whether

the state’s Biil of Rights mandates departure from the min-

imum standards of the federal constitution.“ Among several

other law review commentaries, see also Pollock, State

Constitutions as Separate Sources of Fundamental Rights.

35 Rutgers L. Rev. 707 (1983), and Linde. E. Pluribus.

18 Georgia L. Rev. 165 (1984).

It is axiomatic that a stat: may interpret its state con-

“The authors are practitioners of criminal law and write from that per-

spective, but the basic principles are, of course, the same with respect

to issues of free speech and free exercise of religion.

A -H4

stitution to offer other and more—but not less—protection

of individual rights than does the federal constitution.

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81

(1980); Oregon v. Hass, 420 U.S. 714, 719 (1975). State

courts are, and should be, the first line of defense for in-

dividual liberties within the federalist system. The Minne-

sota Bill of Rights, indeed, antedated the adoption of the

fourteenth amendment, by which the federal Bill of Rights

was in large measure made applicable to the states. The

result is that the citizen has two sources for the protection

of his or her civil liberties. This state should not abdicate

its responsibility to effectuate both lines of constitutional

defense.

This does not mean, however, that the state should in

all circumstances construe its own constitution more ex-

pansively than the federal constitution, particularly where

their comparable provisions are textually identical, for the

decisions of the United States Supreme Court inherently

are of persuasive, although not dispositive, force. As

Justice Hans Linde, in State v. Kennedy, 295 Or. 260,

666 P.2d 1316 (1983), urging that as a matter of judicial

economy a state court shculd always consult dispositive

State grounds for decision, without needless resort to feder-

al grounds for decision, responded to a nonsequitor conten-

tion that the United States Supreme Court’s decisions under

substantially identical texts “not only deserve respect but

presumptively fix its correct meaning also in state con-

stitutions”:

The state finds some difficulty in explaining why this

should be so. If state guarantees are presumptively

bound to interpretation of the federal Bill of Rights

merely because they are federal, the argument extends

A-65

similar force to lower federal court decisions when

the Supreme Court has not spoken. If the argurnent

is cnly that the federal guarantees are older than the

Oregon Constitution, the fact, of course, is that they

were adopted in order to bind the federal government

to guarantees already established in the existing states.

Id. at , 666 P.2d at 1322.

A strong basis for an independent interpretation, how-

ever, may be presented where invocation of the Minnesota

Bill of Rights, as in this case, concerns conditions unique

to this state. As Fleming and Nordby suggest:

Innovative examination of this factor provides co-

gent arguments for engaging in independent interpre-

tation as well as significant direction for decision-

making. Several questions should be considered in

examining this factor: whether Minnesota’s history

and traditions are relevant to the controversy; whether

the controversy is local in nature; whether the resolu-

tion of the controversy rests primarily in a determin-

ation of localized facts; whether the Minnesota Su-

preme Court is in a better position than the federal

courts to make the adjudication because of its su-

perior knowledge of, experience with, and proximity

to the controversy; whether the controversy warrants

an individualized, experimental resolution of state-

wide applicability or necessitates a broad, uniform

resolution of nation-wide applicability; and whether

there are other circumstances unique to Minnesota

eee

A-66

which mandate a decision contrary to the existing

federal doctrine.“

(footnotes omitted). 7 Hamline L. Rev. at 76.

The basis for a different and more expansive interpreta-

tion is stronger yet where the provisions on the same sub-

ject are textually different. Unlike article 1, section 16,

supra note 21, the first amendment to the Constitution of

the United States more cryptically provides:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

of; or abridging the freedom of speech, or of the

press; or the right of people peaceably to assemble,

and to petition the Government for a redress of

grievances.

Fleming and Nordby aptly observe concerning this dif-

ference:

- [T]he state Bill of Rights expressly grants affirma-

tive rights in the areas of free press, free speech and

religious worship while the corresponding federal pro-

vision simply attempts to restrain governmental ac-

tion. In effect, the 'anguage of the state constitution

appears to afford Minnesota citizens greater protec-

tion than does the Federal Constitution. It also serves

to lessen the force of United States Supreme Court

decisions which only refer to the more limited pro-

tection afforded by the Federal Bill of Rights.

“The Minnesota religious milieu, expressed in the language of its consti-

tution,-supra note 21, and contemporaneously reflected in the Faith &

Ferment project report, supra notes 18 and 19, relates to Minnesota’s

history and religious and sociological traditions. The controversy, more-

over, involves a business lacking interstate commerce characteristics and

is therefore basically local in nature.

A-67

(footnotes omitted). 7 Hamline L. Rev. at 67-68.

Chief Justice Samuel J. Roberts of the Pennsylvania

Supreme Court, now retired, in a speech delivered a year

ago before members of the Wyoming bar and representa-

tives of the University of Wyoming College of Law (re-

printed in 17 IJA Report of the Institute of Judicial Ad-

ministration No. 2 (Winter 1985)) declared state court re-

liance on the adequate and independent state grounds for

decision “the most significant development in federal-state

relations over the last decade”; it reduces the burden of our

federal court system, but even more importantly, lends

“stability, integrity, and finality to state court decisions

and thus makes for a better court system—a system gov-

erned, controlled, and supervised by state court adjudica-

tions, for state judges, practitioners, and litigants.” (em-

phasis in original). Discussing several cases in which state

courts had undertaken to rely exclusively on their own

constitutions but which had been nonetheless reviewed by

the United States Supreme Court, Justice Roberts points

out that “where a state court intends to rest a decision on

state law, the state court in its opinion must clearly and

specifically articulate that its decision is based exclusively

on state law and must disclaim even the citation to anal-

ogous federal cases.” (emphasis added). For that reason,

this dissenting opinion neither cites federal cases on free-

dom of speech and religion nor responds to those cited in

the majority opinion.

Vv.

Conclusion

Mindless antipathy of one person toward another of

different race, religion, gender, or marital status is

A-68

repugnant to anyone who claims to be civilized. History

is replete with evidence of its destructive effect on the lives

of people occupying the close quarters of this planet. Sim-

ply in economic terms, the denial of the opportunity to

employ or be employed solely because of such antipathies

bears a high cost to both individuals and the state itself.

The objectives of the Human Rights Act are, therefore,

salutory. Legislation, however, as demonstrated in this

case, can be repressive if not administered with reason

and consistent with constitutionally-guaranteed civil liber-

ties.

The numerosity and nature of the state’s complaints

against Owens obscures an important and undisputed fact

of which the majority opinion takes note: Owens’ business

employs persons of different races and religions-—Catho-

lics, Jews, and Protestants of various denominations—or

no religion, men and women, and single, married, and di-

vorced persons. The acts of alleged discrimination, more-

over, were not motivated by Owens’ hatred of a person of

religion or status different from his own; indeed, by his

own religious convictions he is constrained by the great

commandment to love his neighbor.

The posture in which these complaints against Owens

were adjudicated is one for which the Human Rights Act

was not intended. The examiner himself took some note

of this:

This case is somewhat unique, in that the alleged

discrimination is not against individuals who practice

a religion, but against those who either refuse to

practice or are offended by the promotion of a reli-

gion. This is the opposite of a law suit where the

A-69

charges are discrimination against a race, or a re-

ligious group, or preference to one sex over another.

There is, regrettably, in this case latent spirit of indif-

ference, if not hostility, to deeply-held religious beliefs con-

trary to what I believe is the spirit of the people of Min-

nesota.

I dissent, with respect, from the decision of the majority

which affirms the decision of the hearing examiner, for I

would in all respects reverse and put an end to this un-

fortunate litigation.

YETKA, Justice (dissenting).

Prior to receiving the dissent of Justice Peterson, I had

written a special concurring opinion reluctantly accepting

the majority decision, but expressing strong reservations.

After reading Justice Peterson’s scholarly and eloquent

dissent, however, I join him in dissenting.

There is some controversy on how much significance

could be attached to questions by defendants of female

employees as to their marital status and whether they have

their husbands’ or fathers’ consents to seek employment. I

wish to make it clear that I do not believe it proper under

any circumstances for an employer to ask for such consent.

Women’s rights are too far advanced to turn the clock back

to the 19th century. In my opinion, they are entitled to

equal protection in seeking emplovment under both the

federal and state constitutions whether an ERA amendment

is adopted or not. Such a line of questioning is totally im-

proper under the statute and the constitutions.

However, while employers have certain responsibilities

under this statute. it does nct totally abrogate their

A-70

rights to obtain backgreund information on prospective

employees. The majority opinion states that, “[wJhile we

recognize that in order to make informed and intelligent

employment decisions, employers must be permitted some

leeway to question an employee or applicant about his or

her background, upbringing and perspective.” I’m not sure,

however, that that is sufficient guidance or reassurance to

employers. I am fearful that the opinion will be too broad-

ly interpreted. While individual preferences might differ

as to what characteristics should exist for a good employee,

certain qualifications appear to be universally recognized

as desirable; for example, is the prospective employee in

good physical and mental health; is he/she likely to be

honest and a conscientious worker; can he/she get along

with fellow employees; is he/she likely to get to work on

time; be free of frequent absences and perform his/her

job cheerfully, efficiently and diligently? The fact is that

there is a high correlation between being a good practicing

Christian and fulfilling each of the foregoing qualifications.

If an affluent employer wants to spend the money to

do so, he can easily, quietly have an investigation made of

all prospective applicants and learn all he wants to know

about that person or persons. A small or marginal em-

ployer, on the other hand, may not be able to afford such

an investigation. Yet, the consequerces of hiring an em-

ployee are undoubtedly more dire and harmful to the small

employer than the large. Therefore, the act that claims as

its purpose the prevention of certain discriminations may,

in fact, result in quite another discrimination against cer-

tain employers.

Here is an act which has as its stated purpose the elim-

ination of discrimination in employment. It has been right-

ly invoked to protect minorities—in color, gender, and re-

A-71

ligion. Yet, it would discriminate against the majority re-

ligion in the United States since the nation’s founding,

namely, Christianity. This decision would deny a Christian

the right to practice his belief in the marketplace. It would

deny an employer the right to basic information about a

prospective employee that affects not only the well-be-

ing of the employer and his business, but also that of the

prospective employee's fellow employees. I find the find-

ings so repugnant that it reaches the stage of being ridic-

ulous. True, the majority opinion points out that opinions

of the United States federal courts would suggest that you

may have a decision upholding one person’s constitutional

rights that effec’ yely deny another person his or her rights.

That may be so, bui where an act can be interpreted to

prevent such a delicate balancing act, why shouldn’t it be

soread?

As one of the original authors of fair employment prac-

tices legislation in the Minnesota Legislature in the 1950’s

when such proposed legislation was extremely unpopular,

I firmly believe that an employer should not be allowed to

discriminate on the basis of race, color, gender or creed.

I also believe just as firmly that an employer cannot be de-

nied h's constitutional rights to information essential to

making a meaningful selection of a new employee. We

are at that stage in the evolution of Amer‘can constitution-

al history where we are either going to be one nation in-

divisible with equa! rights for all or we are going to be-

come a nation with groups of citizens within that are vir-

tually separate nations of themselves. The time has come

to strike down all discrimination, all special privileges

and treat all of our citizens eaually before the law.

I, therefore, join Justice Peterson in finding that, under

the Minnesota Constitution. defendants’ constitutional

A-72

rights are violated by the Minnesota Human Rights Act.

The proper disposition of this case perhaps should be to

remand to the hearing examiner; however, I agree with

Justice Peterson that the case has punished defendants far

beyond whatever actions were taken on their part. There

comes a point where enough is enough and the case ought

io be terminated here. I, therefore, would reverse.

APPENDIX B

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN RIGHTS

In the Matter of State of Minnesota, by Marilyn F. Mc-

Clure, and her successor, Irene Gomez-Bethke, Com-

missioner, Minnesota Department of Human Rights,

Complainant,

v.

Sports and Health Club, Inc., d/b/a St. Louis Park Sports

and Health Club, Apache Sports and Health Club, Mid-

way Sports and Health Club, Normandale Sports and

Health Club, LaSalle Sports and Health Club, Northland

Park Sports and Health Club and Tonka Sports and

Health Club, and Arthur W. Owens, Marc Crevier and

Forest Larson,

Respondents.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND

ORDERS

The above-entitled matter came on for hearing before

State Hearing Examiner Richard C. Luis on July 18-22,

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August 1-3, August 12, August 15-16, September 20-21,

and September 23, 1983, in Courtroom 12 of the Minne-

sota Office of Administrative Hearings, Third Floor, Sum-

mit Bank Building, 310 Fourth Avenue South, Minneapo-

lis, Minnesota. The record in this matter closed on April

17, 1984, when the Complainant filed a final Reply Letter.

Clyde F. Anderson, Meagher, Geer, Markham, Ander-

son, Adamson, Flaskamp and Brennan, Attorneys at Law,

2250 IDS Tower, 80 South Eighth Street, Minneapolis,

Minnesota 55102, appeared on behalf of the Respondents

(hereinafter also called “the Employer”). Elizabeth v. Cut-

ter, Special Assistant Attorney General, 515 Transporta-

tion Building, John Ireland Boulevard, St. Paul, Minnesota

55155, appeared on behalf of the Complainant. She was

assisted in her presentation by Special Assistant Attorneys

Gereral Richard L. Varco and Mark Levinger, 1100

Bremer Tower, Seventh Place and Minnesota Streets,

St. Paul, Minnesota 55101.

NOTICE

Pursuant to Minn. Stat. § 363.071, subd. 2 (1983 Supp.),

this Order is the final decision in this case and under Minn.

Stat. § 363.072 (1983 Supp.), the Commissioner of the De-

partment of Human Rights or any other person aggrieved

by this decision may seek judicial review pursuant to Minn.

Stat. $§ 14.63 through 14.69 (1983 Supp.).

STATEMENT OF ISSUES

The issues in this case are whether. with respect to the

Charging Parties herein and other persons similarly sit-

uated:

A-74

(a) the Respondents committed unfair discrimmatory

practices in employment based on religion, marital status

01 sex within the meaning of Minn. Stat. § 363.03, subds.

1(2) and 1(4) (a); and

(b) The Respondents committed unfair discriminatory

practices in the provision of a public accommodation be-

cause of religion within the meaning of Minn. Stat. §

363.03, subd. 3; and

(c) Respondents Arthur Owens, Marc Crevier and

Forest Larson aided and abetted Respondent Sports and

Health Club, Inc., to engage in practices forbidded by

Minn, Stat. § 363.03, subds. 1(2), 1(4) (a) and 3. within

the meaning of Minn. Stat. § 363.03, subd. 6 and;

(d) Respondents Arthur Owens, Marc Crevier and

Forest Larson are protected by the First and Fourteenth

Amendments to the United States Constitution and Article

I, § 16 of the Minnesota Constitution, from being held

liable for any violations of Minn, Stat. § 363.03, subds.

1(2), 1(4) (a) and 3.

Based upon all of the files, records and proceedings

herein, the Hearing Examiner hereby makes the following:

FINDINGS OF FACT

THE RESPONDENTS - HISTORY AND PHILOSOPHY

1. The individual Respondents in this matter, Arthur

Owens, Marc Crevier and Forest Larson, are the owners

and operators of seven Sports and Health Club operations

in the Twin Cities Metropolitan area. Taken together,

the seven operations are Respondent Sports and Health

Club, Inc., a closely held, for-profit Minnesota corporation.

From an operational standpoint, Owens is the President,

A

A-75

Crevier is Vice President in charge of training, sales and

club operations and Larson js Vice President in charge of

finance and office operations. The duties of Crevier and

Larson occasionally overlap in practice.

2. The seven Sports and Health Clubs are each oper-

ated by and answer to a Club Manager. There are, from

time to time, Assistant Managers at the larger clubs

(Normandale in Bloomington, Northland Park in Brook-

lyn Park and LaSalle Court in downtown Minneapolis).

The other managerial personnel employed by the Re-

spondent include an Office Manager and a Head of Main-

tenance. All management personnel are promoted from

within the Respondent’s organization, and, since the mid-

1970's, it has been the Respondents’ policy to elevate only

“Born-Again” Christians into management positions.

3. At each Club, associate membership directors, also

called “programmers”, are employed for the purpose of

selling memberships and the development and supervision

of exercise programs for Club members. There are approx-

imately 40 to 45 full-time associate membership directors

in the Respondents’ employ. The Clubs have a total cur-

rent membership of approximately 18,000 persons, or 400

to 450 per full-time “programmer”.

Each Club also employs at least two full-time reception-

ists who greet the members and the general public, sell

memberships and help to assign persons to a “program-

mer”. Locker room attendants. babysitters, maintenance

persons, office staff at the St. Louis Park headquarters and

part-time personnel (mostly receptionists and associate

membership directors) make up the balance of the Re-

spondents’ 140-150 employees. At all times relevant to

this proceed'ng. the Sports and Health Clubs experienced

A-76

a rapid turnover in sales personnel (receptionists and

“programmers”) and were constantly in search of “qual-

ified” people to fill these positions.

Every person who applies for an employment position

with the Respondents, and who will be dealing with the

public (receptionists and associate membership directors)

must be interviewed and approved by the Respondents’

President, Arthur Owens, prior to hire. The interviews with

Owens generally follow an initial interview by a Club Man-

ager or one of the Vice Presidents. Neither Owens, his

Vice Presidents, or his Club Managers will hire anyone

who, in their view, is “antagonistic to the Gospel”. In order

to ascertain this, the Respondents inquire into the appli-

cants’ religion. It is the Respondents’ sincere belief that a

person’s “religion” permeates, motivates and directs every

thought and action in a person’s life, and, in order to find

out “what kind a person” they are, “religious” inquiries

are made.

4. Membership at a Sports and Health Club is avail-

able to any adult member of the public. Family member-

ships are also available. As of the time of the hearing, the

initial membership fee was $430, which covers the initial

setting up of an exercise program, the cominission (10 per-

cent) for the person making the sale, and dues for one

year. After the first year, dues continue at $14.00 per

month, All parties to this proceeding agree that the

Clubs’ facilities are excellent and that the membership

dues are generaliy lower than those of the competition

(in the Twin Cities Metropolitan area).

5. Although Crevier and Larson had, at the time of the

hearing, purchased most of the Respondents’ stock from

Owens (who originally he!d 100 percent), Owens has been

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the driving force behind the Sports and Health Clubs from

their inception and retains (as President, with a final veto

on all management and middle-level personnel decisions)

that power today.

6. The Respondents appended a “Statement of Faith”,

labeled “Exhibit A” (Respondents’ Exhibit 4) to their

Answer to the original Complaint in this matter. Each tes-

tified that this “Statement of Faith” contain a summary,

with supporting Bible passages, of the basic pillars of his

Christian faith, and that his religious beliefs make it im-

possible for him to separate his personal and business lives

from his life in harmony with Jesus Christ, whom he accept-

ed as the Lord of his life and as his personal Savior at the

time of his spiritual “rebirth”.

The Respondents’ belief that Jesus Christ is in actual

control of their lives, because they have made a personal

commitment to act as he guides them in all aspects of

their lives, including acting as a “witness” for Him, re-

flects a tenet of faith commonly associated with “Born-

Again” Christianity.

Arthur Owens, who is 59 years old, became “Born-

Again” in Christ in 1957, Forest Larson (age 32) and

Marc Crevier (age 33), decided to receive Christ as their

personal Lord and Savior (to become “Born-Again’’) in

approximately 1964 and 1974, respectively.

The Respondents’ religious beliefs, as outlined above

and as detailed throughout the remainder of this decision,

are sincere.

7. Arthur W. Owens, after returning from military

service in World War II, worked in partnership with his

father in the restaurant business in Minneapolis from 1945

to 1957. After one of their two “Baltimore Dairy Lunch”

A-78

restaurants was condemned to make room for the con-

struction of the downtown branch of the Minneapolis

Public Library, and after his father retired, Owens de-

cided to switch careers. He sold his other restaurant and

started the first Sports and Health Club, which opened in

St. Louis Park in 1959. After that, the business expanded

with the opening of a Club on the East Side of St. Paul in

1961 (which closed in 1965), and Clubs in the Midway

Shopping Center in St. Paul and at Apache Plaza Shop-

ping Center in St. Anthony, which both opened in the

fall of 1961. Sports and Health opened in LaSalle Court

in downtown Minneapolis in 1970, at Normandale and

Bloomington in 1973, and in Brooklyn Park (the North-

land Park Club) in 1977. The corporation bought the Old

Minnetonka Racquet and Swim Club and converted it to

a Sports and Health Club in 1983, and plans to open

another Sports and Health facility in St. Cloud this year.

8. Arthur Owens made his decision to embrace Jesus

Christ as his personal Lord and Savior in 1957, shortly

after his fourth child, Cindy Jo, was killed after being run

over by a car in front of the family’s house just before her

third birthday. Owens, who was raised as Presbyterian

and belonged to a Presbyterian churcn at the time of

Cindy’s death, went through a series of traumas, and even

considered suicide, after the fatal accident and prior to his

spiritual rebirth.

9. Owens’ growth and development as a “Born-

Again” Christian was slow and steady. For several vears,

until approximately 1964, he kept his personal acceptance

of Christ to himself, a period of what he calls living in the

“secret service”. During this time, Owens stayed active in

his Presbyterian church.

" Seite Cron UV ante nICOS TEU foo ne eo a he

A-79

In 1964, Mr. Owens decided to take over the spiritual

leadership of his home and began a program of family de-

votionals. In 1969, he became a stricter disciplinarian with

respect to his children’s development and education, in-

cluding the decision to impose corporal punishment upon

them. That same year, in opposition to the Minnetonka

School Board’s decision to implement a program of sex

education for elementary school students, Owens took his

son out of the system and started his own school, Chapel

Hill Academy, which is still in operation for grades K-12

and stresses education according to fundamentalist Chris-

tian principles. In the mid-1970’s, Mr. Owens made the

decision to operate his Sports and Health Clubs as “dis-

cipleships” for Christ. Since the departure of Ira Rosen,

who is Jewish, as manager of the Normandaie Club in

1975, no one has been elevated into a management posi-

tion with the Respondents unless they shared Owens’

fundamentalist “Born-Again” Christian beliefs. After Ro-

sen’s departure, Owens also decided to eliminate the posi-

tion of Executive Director in his organization, a position

whose duties included the hiring of all sales personnel

(receptionists and associate membership directors) and take

personal responsibility for the hiring of al! such people.

Since then, no one perceived by Owens, or his managerial

personnel, as “antagonistic to the Gospel! of Jesus Christ”

has been offered employment as a receptionist or associate

membership director.

Owens’ employment interviews include reviewing the ap-

plication and asking questions of the applicant to ascer-

tain information on their religious views, their marital

A-80

status and living arrangements.’ He explains to each

prospect that the Sports and Health Clubs are a “Christian

organization”, that many of the employees are fervently

evangelical, and asks whether the interviewee would be

“uncomfortable” in such an atmosphere. Owens maintains

that a technica] background in sales, exercise and/or nu-

trition are less important to him than two basic qualifica-

tions for employment. They are that the applicant (1)

possesses a “teachable spirit” and (2) follows a “disciplined

life style”. At the above-noted interviews, applicants have

been asked, or questioning has been formulated with a

view to finding out: to describe in detail their religious

beliefs and practices; to give their reaction to the Re-

spondents’ religious beliefs and practices, or those of cur-

rent employees, as outlined by the interviewer; to de-

scribe in detail their family lives, including the marital

status _of themselves and their parents, whom they live

with, and if they live “out of wedlock”. Women appli-

cants have been asked, or questioning has been formu-

lated with a view to finding out: if young and single,

whether they have their father’s (or parents’) permission

to work; if young and sinyle and living away from home,

whether they have their father’s (or parents’) permission

to do so; if married, whether they have their husbands’

permission to work. The Respondents also have made in-

quiries of this nature to certain of the'r employees. They

have made decisions with respect to hiring and promotion

based on the answers to such inquiries or the person’s

status with respect to such propositions.

‘Many of the questions asked by Owens of prospective employees are also

asked by Respondents Crevier and Larson and the Club Managers. Since

approximately 1976, the interviews applicants have with Owens have

generally concentrated only on personal matters, because the first inter-

view has already “screened” the applicant's other qualifications.

A-81

The decision to operate the Sports and Health Clubs as

a “discipleship” for Christ was made at a time when the

organization was in severe financial trouble and almost

went bankrupt. Since that time, the Clubs’ financial sit-

uation has become progressively more prosperous. Owens

attributes the turnaround to his decision to take on his

“Jewish business partner”, Jesus Christ.

10. The basic operational model imposed by Mr.

Owens on his Sports and Health Club operations since

approximately 1974-5 is a structure and organization de-

rived from the teachings of Bill Gothard, a former Chicago

street preacher whose seminars, called “Institute in Basic

Youth Conflicts”, were first attended by Mr. Owens

in 1973. Gothard’s seminars are part of the outreach pro-

gram of the Campus Crusade for Christ, a non-denomi-

national, youth-oriented fundamentalist organization of

“Born-Again” Christians which proselytizes and “wit-

nesses” for Christ, primarily on college campuses, through-

out the United States. Owens has been associated with the

Campus Crusade since 1968. The outline of Gothard’s six-

day seminar (Monday-Thursday nights for three hours a

night. all day Friday and Saturday, see Respondents’ Ex-

hibit 13) contains source materia! for job descriptions and

performance evaluation forms presently used for persons

employed in the capacity of associate membership directors

for the Respondents.

11. After Ira Rosen resigned as Manager of the Nor-

mandale Sports and Health Club in 1975, Owens replaced

Rosen with three co-managers—Nancy Albertson (who

quit in 1976). Marc Crevier and Forest Larson. At that

time, the other Sports and Health Clubs were at St. Louis

Park, LaSalle Court, Midway and Apache. By the late

A-82

1970's, Crevier and Larson were also in operational charge,

either personally or through managers selected by them

and Owens and who agreed with their religious beliefs and

managerial philosophies of the LaSalle Court, St. Louis

Park and Northland Park (which opened in i977) Clubs.

The Midway and Apache Clubs remained under the oper-

ation and control of Jim Chapman, who had managed

them since 1968 and had been attempting to purchase the

two operations from Owens for several years.

In late 1981 and early 1982, after Chapman resigned

when his attempt to purchase the Clubs met its final fail-

ure, Crevier and Larson assumed operational control at

Midway and Apache as well. They installed persons whom

they had personally trained and who shared their “Born-

Again” Christian beliefs and managerial philosophy, Jeff

Penney aad Kevin Reilly, as the Club Managers and began

to retrain the entire staff in order to bring their operational

and personnel systems in line with the rest of the Re-

spondents’ Clubs.

12. In approximately 1979, Crevier and Larson be-

gan purchasing the assets of all of the Sports and Health

Clubs, except those operated by Chapman, which Chapman

himself was attempting to purchase from Arthur Owens.

After Chapman’s resignation in late 1981, Crevier and

Larson began to purchase the assets of the Midway and

Apache Clubs as well. These purchases were nearly com-

plete at the time of the hearing. The record does not reveal

who owns the assets of the Tonka Club or who will own

the assets of the planned facility in St. Cloud.

13. At or about the same time that they began pur-

chasing the Clubs from Owens, Crevier and Larson began

to impose a “strict accountability book system” of sales

x sao el

ih ah i cle Sak Wa lity gh Gian ich i, hs

A-83

and member servicing methods upon all associate mem-

bership directors. See Respondents’ Exhibit No. 14. Jim

Chapman, who retained operational control of the Apache

and Midway operations during the time he was

This text is long and has been trimmed here. Open the source document for the complete record.