O'SCANNLAIN, Circuit Judge:
We must decide whether a faith-based humanitarian organization is exempt from Title VII's prohibition against religious discrimination.
Silvia Spencer, Ted Youngberg, and Vicki Hulse were terminated by World Vision, Inc. ("World Vision") on account of their religious beliefs. Religious discrimination is, of course, barred by Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e-2(a). That bar, however, does not apply to "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities." Id. § 2000e-1(a). World Vision's eligibility for this exemption is the issue presented in this appeal.
World Vision describes itself as "a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice." What began in 1950, when Dr. Robert Pierce started sending a monthly donation to a child in China, has become World Vision International ("WVI"): a federation of eighteen independent and thirty-four semi-autonomous entities operating in countries around the world. World Vision—the party to this case—is the U.S. arm of WVI.
Spencer and Hulse had both worked for World Vision for approximately ten years prior to their dismissal. Spencer provided various services related to the upkeep and maintenance of the organization's technology and facilities, and Hulse was responsible
When they were hired, Spencer, Hulse, and Youngberg (collectively, the "Employees") submitted required personal statements describing their "relationship with Jesus Christ." See infra p. 1125. All acknowledged their "agreement and compliance" with World Vision's Statement of Faith, Core Values, and Mission Statement. See infra pp. 1121, 1125.
In 2006, World Vision discovered that the Employees denied the deity of Jesus Christ and disavowed the doctrine of the Trinity.
The Employees lodged their complaint in the U.S. District Court for the Western District of Washington, alleging discrimination in violation of Title VII of the Civil Rights Act. In response, World Vision filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). On the Employees' motion, the district court converted World Vision's request into a motion for summary judgement and allowed discovery to proceed.
Ultimately, the district court granted summary judgment to World Vision, concluding that it was a religious entity within the meaning of 42 U.S.C. § 2000e-1. Spencer v. World Vision, Inc., 570 F.Supp.2d 1279, 1280 (W.D.Wash.2008). In making this determination, the district court decided that the factors discussed in EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir.1993), "d[id] not provide an accurate framework ... to determine whether a religious organization that is not an educational institution is entitled to Title VII exemption." Id. at 1285. The court instead relied on the factors discussed in LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir.2007). Id. at 1285-86. Consideration of those nine factors led the court to hold that World Vision's "purpose and character are primarily religious," and thus, the organization fell within the language of 42 U.S.C. § 2000e-1. Id. at 1289.
The Employees timely appealed.
There is no dispute that the Employees were fired for religious reasons. For purposes of this appeal,
Typically, the question of whether an organization is religious for purposes of section 2000e-1 warrants little analysis. In most cases, the organization seeking the exemption is "clearly" religious, and the result is straightforward. See EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 618 (9th Cir.1988). No one would dispute, for example, that the Church of Jesus Christ of Latter-Day Saints is a religious organization. See, e.g., Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987).
We have twice addressed this question where the result was less than obvious. In Townley, we decided that a for-profit manufacturer of mining equipment did not qualify for the exemption. 859 F.2d at 619. We characterized our inquiry as an effort "to determine whether the `general picture' of [an] institution is primarily religious or secular." Id. at 618 n. 14 (emphasis added). In making that determination, we emphasized that "each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation's purpose and character are primarily religious. Only when that is the case will the corporation be able to avail itself of the exemption." Id. at 618. We also analyzed the "far from comprehensive" legislative history of section 2000e-1, speculating that when it enacted the exemption, Congress "assumed that only those institutions with extremely close ties to organized religions would be covered. Churches, and entities similar to churches, were the paradigm." Id. at 617-18 ("[T]he central function of section 702 has been to exempt churches, synagogues, and the like, and organizations closely affiliated with those entities."). Institutions "merely `affiliated' with a religious organization" would not qualify. Id. at 617.
In Kamehameha, we reaffirmed Townley while concluding that two private educational institutions did not qualify for the section 2000e-1 exception. 990 F.2d at 460. We further explained that section 2000e-1 would be construed "narrowly," and the institution seeking the benefit of the statute would "bear the burden of proving [it is] exempt." Id. Applying Townley's "primarily religious" test, we weighed the secular and religious characteristics of the schools, specifically referencing their (1) ownership and affiliation, (2) purpose, (3) faculty, (4) student body, (5) student activities, and (6) curriculum. Id. at 461-63.
Ours has not been the only circuit to consider scope of the section 2000e-1 exemption. In LeBoon, the Third Circuit concluded that a Jewish community center was a religious organization within the meaning of section 2000e-1. In doing so, it agreed with Townley that the proper inquiry involved a weighing of "`[a]ll significant religious and secular characteristics.' " LeBoon, 503 F.3d at 226 (alteration in original) (quoting Townley, 859 F.2d at 618). The court then considered nine factors other "courts have looked at" in determining whether an entity qualified for section 2000e-1:
Id. (citing Kamehameha, 990 F.2d 458 and Townley, 859 F.2d at 618-19). The Third Circuit added the caveat that "not all factors will be relevant in all cases, and the weight given each factor may vary from case to case." Id. at 227. The court also noted that the section 2000e-1 exemption should not be denied to institutions because they, inter alia, engage in some secular activities, do not adhere to the strictest tenets of their faith, or do not hire only coreligionists. Id. at 229-30.
The Employees' first contend that by applying the nine factors set forth in LeBoon, rather than the six factors laid out in Kamehameha, the district court violated Ninth Circuit precedent. The Employees argue that LeBoon "explicitly rejected the Ninth Circuit's narrow interpretation of § 2000e-1"—a narrow interpretation the Employees assert limits the exemption to "churches, synagogues, and the like" or "[c]hurches, and entities similar to churches." Townley, 859 F.2d at 618 & n. 14
Despite the Employees' protestations to the contrary, our interpretation of section 2000e-1 is not as "narrow" as they would have it. First, in Townley, we did not confine our inquiry to considering whether the manufacturing firm at issue was essentially a church. Rather, we weighed all relevant religious and secular characteristics to determine whether the company at issue was "primarily religious or secular" in nature. See id. at 618-19. Moreover, Townley's allegedly limiting language— "[c]hurches, and entities similar to churches"—appears in its discussion of section 2000e-1's legislative history, a discussion on which our holding did not depend. See id.; see also Kamehameha, 990 F.2d at 460 n. 5 ("In any event, the test the court adopted in Townley does not depend on an analysis of the legislative history.").
Second, the reading of section 2000e-1 propounded by the Employees is belied by the text of the statute. Congress extended the exemption to any "religious corporation, association, ... or society." 42 U.S.C. § 2000e-1(a). If Congress had intended to restrict the exemption to "[c]hurches, and entities similar to churches" it could have said so. Because Congress did not, some religious corporations, associations, and societies that are not churches must fall within the exemption.
That said, there is no denying that we have held that section 2000e-1 should be construed "narrowly." Kamehameha, 990 F.2d at 460. But the same panel which held that a narrow construction was necessary found nothing contradictory between such a reading and Townley's requirement of a case-by-case weighing of "`[a]ll significant religious and secular characteristics... to determine whether the corporation's purpose and character are primarily religious.'" Id. (quoting Townley, 859 F.2d at 618). Analysis of additional or alternative factors cannot contravene circuit precedent which explicitly mandates consideration of "`[a]ll significant religious and secular characteristics.'" Id. (emphasis added).
In sum, when confronted with a section 2000e-1 case, Townley and Kamehameha require us to analyze, on a caseby-case basis, whether the "general picture" of an organization is "primarily religious," taking into account "[a]ll significant religious and secular characteristics."
Though our precedent provides us with the fundamental question—whether the general picture of World Vision is primarily religious—we must assess the manner in which we are to answer that question in the case at hand. Again, we are told that we must evaluate "[a]ll significant religious and secular characteristics." Townley, 859 F.2d at 618. The Employees insist that this means we should analogize and apply the Kamehameha factors. World Vision urges us to do the same with those considered in LeBoon.
Of course, our caselaw does not compel us to march down a checklist of considerations. Quite the contrary, we have never "attempt[ed] to outline [section 2000e-1's] precise scope," concluding instead that "each case must turn on its own facts." Townley, 859 F.2d at 618. We would thus be remiss to hold that factors which are "significant" in one case must be similarly "significant" in all others. As the Third Circuit trenchantly observed, "not all factors will be relevant in all cases, and the weight given each factor may vary from case to case." LeBoon, 503 F.3d at 227. Our past precedent tracks this methodology. We did not consider identical "factors" in Kamehameha and Townley. Compare Townley, 859 F.2d at 619, with Kamehameha, 990 F.2d at 461-63. This makes eminent sense. After all, Kamehameha involved an educational institution. Townley involved a for-profit manufacturing company. Thus, it should come as no surprise that dogmatic application of the factors set forth in Kamehameha— several of which were explicitly tailored to schools—is inapt when we consider the status of World Vision. As a non-profit humanitarian relief organization, World Vision is a different animal.
Rigid adherence to the LeBoon factors is also unwarranted, though for several additional reasons. As an initial matter, applying some of the factors set forth in that opinion to entities such as World Vision could create several oddities. To take just one example, LeBoon could be read to ask us to consider whether World Vision's "members"—here, its employees—are coreligionists. See LeBoon, 503 F.3d at 226. But if World Vision does not qualify for the exemption, hiring employees on the basis of their religion would constitute a gross violation of Title VII. We will not encourage organizations to take actions that might otherwise be illegal in order to boost their chances to qualify for the exemption. See Killinger v. Samford Univ., 113 F.3d 196, 199-200 (11th Cir.1997) ("We are also aware of no requirement that a religious educational institution engage in a strict policy of religious discrimination— such as always preferring Baptists in employment decisions—to be entitled to the exemption.").
Even more importantly, several of the LeBoon factors could be constitutionally troublesome if applied to this case. For example, one of the factors asks us to take into account the "religious" or "secular" nature of a particular product or service. See LeBoon, 503 F.3d at 226. The Supreme Court, however, has repeatedly cautioned courts against venturing into this constitutional minefield.
In Amos, the Court found exactly this sort of inquiry problematic in the context of determining whether a particular employee's duties were religious or secular. There, the lower court had held that a "building engineer" at a church gymnasium performed a secular activity. 483 U.S. at 332, 107 S.Ct. 2862. The Supreme Court reversed, explaining that to force an
Id. at 343-44, 107 S.Ct. 2862 (Brennan, J., concurring) (internal citation omitted). If we should not be in the business of determining whether a particular "activity" is religious or secular, our competence to make that determination with respect to a particular "product" or "service" is in serious doubt.
Similarly, in New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977), the Court struck down a law which authorized reimbursement payments to nonpublic schools for certain "testing services required by state law." Id. at 127, 98 S.Ct. 340. The Court held that the law created a Catch-22: it either impermissibly advanced religion by providing support for testing which furthered religion, or it resulted in excessive entanglement with religion as the government attempted to sort out religious and nonreligious activities. Id. at 132-33, 98 S.Ct. 340. As to the latter, the Court remarked that "[t]he prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment."
In the case at hand, however, we have repeatedly been asked to engage in exactly this sort of inquiry into "what does or does not have religious meaning." For example, World Vision contends that its humanitarian relief efforts have religious meaning; the Employees claim they do not. If we were to apply this prong of the LeBoon test to the case at hand, we would at least implicitly have to answer to that question. The very act of making that determination, however, runs counter to the "core of the constitutional guarantee against religious establishment." Cathedral Acad., 434 U.S. at 133, 98 S.Ct. 340; see also Catholic Bishop, 440 U.S. at 502, 99 S.Ct. 1313 (noting that, when inquiring into whether a particular position was religious or secular, "[i]t is not only the conclusions that may be reached by the [government agency] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions" (emphasis added)); cf. Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality
Section 2000e-1's statutory history suggests that we are not the only governmental entity to recognize the dangers of this particular inquiry. An earlier version of the statute extended the exemption merely to the "religious activities" of covered organizations. See Civil Rights Act of 1964, Pub.L. No. 88-352, § 702, 78 Stat. 241, 255 (stating that Title VII did not apply "to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities" (emphasis added)). Congress amended the statute, however, to remove the limiting reference to "religious activities." See Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, § 3, 86 Stat. 103, 104.
On a related note, LeBoon asks us to determine whether an organization's founding purpose is religious or secular in nature. See LeBoon, 503 F.3d at 226. For all the reasons discussed above, where the nature of an organization's purpose is disputed, this factor is a second invitation to wander into the constitutional briar patch of distinguishing between the sacred and the secular. If we are ill-equipped to determine whether an activity or service is religious or secular in nature, how are we to know which side of the line an entity's "purpose" falls on?
The factor which would have us ask whether an organization is affiliated with or supported by a "formally religious" entity is no less problematic. See LeBoon, 503 F.3d at 226; Kamehameha, 990 F.2d at 461. In the first place, this inquiry begs the question: it gives no means by which to determine whether the parent organization is religious. While that answer is obvious when dealing with, for example, a Catholic hospital, it would not be so straightforward when the parent entity is less obviously religious.
Moreover, this consideration contains the potential for discrimination amongst religious institutions. In short, a constrained reading of this factor favors institutions which claim a denominational affiliation over those who do not.
The Supreme Court's decision in Larson is instructive. In that case, the Court struck down "a Minnesota[ ] statute imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty percent of their funds from nonmembers." 456 U.S. at 230, 102 S.Ct. 1673. The Court observed that such law made "explicit and deliberate distinctions between different religious organizations." Id. at 246 n. 23, 102 S.Ct. 1673. It
Id. (internal quotation marks omitted). Such preferences were unconstitutional unless justified by compelling governmental interests. Id. at 246-47, 102 S.Ct. 1673.
Thus, weighing the religious or irreligious nature of funding sources could pose similarly troublesome difficulties involving "distinctions between different religious organizations." As was the case in Larson, looking to whether an entity is "financially supported" by a formally religious entity could effectively discriminate between "well-established" organizations, who have weaned themselves of revenue from their "mother" church, and those "which are new" and still dependent on their parent organization. In the same way, such inquiry could discriminate between organizations which "favor public solicitation over general reliance on financial support" from other religious institutions.
In spite of these attendant constitutional concerns, both Townley and Kamehameha relied on characterizations of whether certain attributes of a organization were secular or religious in nature. See Kamehameha, 990 F.2d at 461-63; Townley, 859 F.2d at 619. Those characterizations, however, were not our own. In Townley, the secular nature of the company's product was "admitted[ ]." 859 F.2d at 619. Likewise, Kamehameha contains no indication that the religious or secular nature of any particular activity or purpose was in dispute.
As for the affiliation factor, to the extent we are required to consider it, we are disinclined to afford it much weight in light of potential it presents for discrimination amongst religious institutions.
Although Judge Kleinfeld and I agree on the forgoing principles and on the result in this case, we disagree as to the proper test for distinguishing religious entities entitled to the section 2000e-1 exemption from those entities not entitled to the exemption.
In my view, where the religious or nonreligious nature of a particular activity or purpose is in dispute, we should not rely exclusively on LeBoon's hodgepodge of constitutionally questionable inquiries. Rather, I believe the better approach can be summarized as follows: a nonprofit entity
This analysis minimizes any untoward differentiation among religious organizations and any unseemly judicial inquiry into whether an activity is religious or secular in nature. First and foremost, it centers on neutral factors (i.e., whether an entity is a nonprofit and whether it holds itself out as religious). Rather than forcing courts to "troll[ ] through the beliefs of [an organization], making determinations about its religious mission," Great Falls, 278 F.3d at 1342, it permits an institution to acknowledge its own religiosity. The furtherance prong likewise avoids any untoward judicial inquiry; all we must do is evaluate the purpose provided by the organization against the organization's practice.
The initial consideration, whether the entity is a nonprofit, is especially significant. Because "persons having a personal and private interest in the activities of[a nonprofit] organization" may not receive any portion of its net earnings, 26 C.F.R. § 1.501(a)-1(c); see id. § 1.501(c)(3)-1(c)(2), an organization's status as a nonprofit bolsters a claim that its purpose is nonpecuniary. It is true that a "nonprofit" may make a "profit"—at least in the sense that it may have net earnings because its revenues exceed its costs. But, a nonprofit entity is distinguished from a for-profit entity by what it does with its net earnings. A nonprofit entity must spend any net earnings to advance its tax-exempt purpose, and may not distribute its net
Because a nonprofit may not distribute its net earnings to its organizers or employees, the fact that an entity is structured as a nonprofit provides strong evidence that its purpose is purely nonpecuniary. As Justice Brennan observed in his concurrence in Amos, "[t]he fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation." Amos, 483 U.S. at 344, 107 S.Ct. 2862 (Brennan, J., concurring).
The test I propose also ensures that the section 2000e-1 exemption will remain "narrow[ ]." Kamehameha, 990 F.2d at 460. Requiring that an organization hold itself out as religious "helps to ensure that only bona fide religious institutions are exempted." Great Falls, 278 F.3d at 1344. "[S]uch public representations serve as a market check. While public religious identification will no doubt attract some[people] to the institution, it will dissuade others. In other words, it comes at a cost. Such market responses will act as a check on institutions that falsely identify themselves as religious merely to obtain [the benefit of the section 2000e-1] exemption...." Id.
Having set forth what I believe to be the appropriate test to determine whether an organization qualifies for the section 2000e-1 exemption, I now apply it to the facts of this case.
I first note that World Vision operates as a nonprofit entity. See Townley, 859 F.2d at 619; see also LeBoon, 503 F.3d at 226; Killinger, 113 F.3d at 199. The Employees make much of the fact that World Vision is a "billion-dollar-per year" business whose leaders receive six-figure salaries. They highlight the contrast between the large, international humanitarian relief organization that is World Vision, and the local Jewish community center in LeBoon, which served only a "discrete religious community."
In essence, the Employees ask this court to penalize World Vision for doing "too much" humanitarian work. They do not explain how the scope of World Vision's
I next assess whether World Vision is organized for a self-identified religious purpose. See LeBoon, 503 F.3d at 226; Kamehameha, 990 F.2d at 462; Townley, 859 F.2d at 619; cf. LeBoon, 503 F.3d at 226-27 ("It is apparent from the start that the decision whether an organization is `religious' for purposes of the exemption cannot be based on its conformity to some preconceived notion of what a religious organization should do, but must be measured with reference to the particular religion identified by the organization."). Even a cursory review of World Vision's Articles of Incorporation, bylaws, core values, and mission statement reveal explicit and overt references to a religious purpose.
World Vision's 1950 Articles of Incorporation, state that the "primary business" of the organization "is to conduct Christian religious missionary services, to assist in improving and ameliorating the moral and social conditions of humanity, [and] to provide services to God's people which will enable them to accomplish more quickly and efficiently the Great Commission of advancing the Kingdom of God on earth." As amended in 1980, the Articles read:
Also included in the Articles is the commitment to "continually and steadfastly uphold and maintain the following statement of faith," which begins:
This Statement of Faith is echoed in the organization's "Core Values,"
Having established that World Vision's organizing principles are avowedly religious, I examine whether the organization is engaged in activity consistent with, and in furtherance of, those purposes. The Employees claim that, like the schools in Kamehameha, the World Vision's activities are no longer in line with its stated purposes. See Kamehameha, 990 F.2d at 462. To that end, the Employees place emphasis on the fact that World Vision does not condition receipt of its services on religious belief.
In practical terms, World Vision's profession that it is "dedicated to serving God by serving man" plays itself out through "six basic ministries": "1) caring for children in need, 2) building self reliance among the needy, 3) emergency aid and relief, 4) evangelism, 5) strengthening Christian leadership and 6) educating Americans about the needs of the suffering around the world." Among other things, World Vision provides disaster relief services, assists in combating the spread of HIV/AIDS, and runs programs which pair at-risk children and teens with mentors from their community. The organization also reaches out to American churches to raise awareness about humanitarian needs around the globe.
To the general public, World Vision is perhaps best known for its child sponsorship program. Donors are paired with particular children and their contributions provide access to clean water, food, health care, education, vocational training, and— for those children who are interested—the opportunity to learn about the Christian faith.
This review of undisputed evidence in the record readily shows that World Vision continues to conform to its founding documents, conducting "Christian religious and missionary services" and "render[ing] Christian service, both material and spiritual to the sick, the aged, the homeless and the needy." Indeed, that is essentially all World Vision appears to do. Such continued devotion to the organization's founding aims stands in stark contrast to the situation in Kamehameha, where "the purpose and emphasis of the [s]chools ha[d] shifted over the years from providing religious instruction to equipping students with ethical principles." 990 F.2d at 462.
I am not persuaded by the Employees' claim that World Vision is acting inconsistently with its mission because it does not confine its relief efforts to coreligionists. According to World Vision, providing humanitarian aid to all in need, regardless of religious belief, is a tenet of its faith. See supra pp. 1121. The Employees thus ask us to require World Vision to act contrary to such belief in order to qualify for the exemption. The plaintiff in LeBoon raised a similar argument, which the Third Circuit properly discounted.
LeBoon, 503 F.3d at 230. I agree with the D.C. Circuit that to confine an exemption "to religious institutions with hardnosed proselytizing, that limit their enrollment to members of their religion ... is an unnecessarily stunted view of the law." Great Falls, 278 F.3d at 1346 (citing Larson, 456 U.S. at 244, 102 S.Ct. 1673)).
Moreover, the Employees' argument would lead to absurd results. Hosts of religious organizations—including such obviously religious entities as churches or synagogues—open their doors to all. They provide religious instruction, counseling, prayer, and a variety of other services without concern for whether the individual requesting such services is a coreligionist. Adopting the Employees' standard compels the conclusion that this inclusivity cuts against an entity's ability to qualify for the section 2000e-1 exemption. Thus, the fact that World Vision provides its services without condition does not suggest it is ineligible for the exemption.
I next ask whether World Vision holds itself out to the public as a religious organization. Even the Employees concede this point. They could do little else. World
At the most basic level, World Vision's logo is a stylized Christian cross, and religious artwork and texts are displayed throughout the organization's campus. Much more significantly, World Vision disseminates Christian Messaging Guidelines within the organization to "guide" "[e]xternal communications." The Guidelines state that World Vision "is intentional about communicating [its] Christian faith accurately and with integrity": "[i]n a world where many institutions have moved away from their Christian roots,[World Vision] remain[s] committed to living out[its] faith through [its] work." The organization requires that "[a]t a minimum, World Vision's descriptor statement must be on every piece of communication."
This overt Christianity is especially evident to those applying for employment at World Vision. For example, the following appears on the World Vision's "Careers" webpage:
In a case such as this, where an organization "holds itself out publically as a religious institution,'[w]e cannot doubt that [it] sincerely holds this view.'" Great Falls, 278 F.3d at 1344 (alterations in original) (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 653, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000)).
I reluctantly comment on the fact that World Vision is not associated with any particular church or denomination and no representative of such an entity serves on World Vision's board of directors and only do so because our precedent compels such an inquiry. The Employees contend that this lack of affiliation is fatal to World Vision's attempt to qualify for the section 2000e-1 exemption. See LeBoon, 503 F.3d at 226; Kamehameha, 990 F.2d at 461. Because, as explained above, such a conclusion would impermissibly discriminate amongst religious institutions, I cannot agree with this assertion. See supra Part II.A.2.b.
I also observe that in LeBoon, the Jewish community center at issue was neither wholly nor partially owned by a synagogue. Instead, the Third Circuit's affiliation analysis discussed the center's "close and active ties" with "three local synagogues," its reliance "on coreligionists for financial support," and its inclusion of three rabbis "in management decisions." LeBoon, 503 F.3d at 227-29.
Applying this analysis, there is ample evidence in the record to indicate that World Vision receives a large portion of its funding from coreligionists: both from individuals and from churches. World Vision solicits donations from the general public on its website for, inter alia, individual children, "Disaster Response," "Clothing for Children," "Africa Food Aid," "Hope for Sexually Exploited Girls," and "Seeds, Tools, and Training in Africa," While these individual web links do not necessarily make explicit reference to World Vision's religious nature, fundraising letters do contain descriptions of the organization's Christian character. In recent years, approximately eighty-four percent of World Vision's cash contributions have come from churches and coreligionists.
World Vision also "maintains close and active ties" with a host of "formally religious" institutions. Currently, ten members of its Board of Directors come from "church and ministry leadership," a category that "must" be represented. Moreover, it is undisputed that World Vision is affiliated with WVI, an organization classified as a "church" for tax purposes by the IRS.
Because the Employees concede this point, I also find it appropriate briefly to note that World Vision includes prayer or other forms of worship in its activities. LeBoon, 503 F.3d at 226. This concession is also confirmed by overwhelming, undisputed evidence in the record.
According to World Vision, because it "believes the key to faithfully following Christ lies first in the hearts and minds of [its] staff and only then in program activities," religion pervades the workplace.
Based on the foregoing consideration of "[a]ll significant religious and secular characteristics," I am satisfied that World Vision has met its burden of showing that the "general picture" of the organization is "primarily religious." World Vision is a nonprofit organization whose humanitarian relief efforts flow from a profound sense of religious mission. That mission is evinced in the organization's founding documents. Significantly, World Vision continues to act in accordance with those documents, and it explicitly and intentionally holds itself out to the public as a religious institution. While World Vision is neither owned by nor affiliated with a formally religious entity in the traditional sense, this does not preclude our finding that it is a "primarily religious" organization and thus eligible for the section 2000e-1 exemption.
The district court's grant of summary judgment to World Vision is
KLEINFELD, Circuit Judge, concurring:
All three of us agree that a multifactor test does not work well because it is inherently too indeterminate and subjective, but we disagree on what the test ought to be. I write separately because, although I agree with Judge O'Scannlain that we should affirm, I disagree with both my colleagues' formulations of the test to be applied. I concur in Parts I, II, and IV of Judge O'Scannlain's opinion.
The Civil Rights Act of 1964 generally prohibits discrimination based on religion, but exempts religious institutions:
Our task is to decide whether World Vision is a "religious corporation, association, educational institution, or society."
Judge O'Scannlain formulates this test: "a nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious." Judge Berzon formulates this one: "Congress used the terms `religious corporation, association ... or society' ... to describe a church or other group organized for worship, religious study, or the dissemination of religious doctrine." I agree with Judge O'Scannlain that World Vision falls within the statutory exemption, but in my view, his test is too inclusive, and Judge Berzon's is too exclusive.
The Civil Rights Act and the exemption are not mere words. They are designed to accomplish something, they have purposes, and the words cannot be understood without considering the purposes. Purposes are not the same thing as legislative history, often merely a depositary for lobbyists' requests that did not make it into the statute.
Judge Berzon's reading purports to be a noscitur a sociis construction, but ignores the phrase "educational institution." The justification she gives is that World Vision is not an educational institution, but the phrase cannot be ignored if we are to use noscitur a sociis as an interpretive aid. The statute does not say "religious corporation,
Judge Berzon's interpretation fails because, first, as explained above, we cannot determine the meaning by reference to associated words and phrases without considering all the associated words and phrases, and one of them, "educational institution," is not a synonym for "church," nor do church schools function merely as places of religious study or disseminators of religious doctrine. Typically most of the courses are secular. Teaching children the multiplication tables and Silas Marner is not religious study or dissemination of religious doctrine, yet that sort of thing is how most of the day is spent at parochial schools. Nor does "religious association" mean "church, temple, synagogue, or mosque," as Judge Berzon would have it. Had Congress meant to say that, it would have. Fair application of noscitur a sociis requires us to find something in common among all the associated words and phrases, not just some of them.
Second, Judge Berzon's approach ignores the additional canon, that all the words of the statute must be accorded some meaning, rather than treating some as superfluous. "It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute."
Third, Judge Berzon's narrowing of the exemption prevents the exemption from accomplishing its purpose, protecting the free exercise of religion. Since the earliest times in the Judeo-Christian tradition, religion has meant more than prayer,
Judge Berzon's approach does not even accomplish the narrowing she evidently seeks, because it is not so easy to say just what "worship" is, what type of study qualifies as "religious study," or what counts as "dissemination of religious doctrine." Is the Catholic school still religious, in Judge Berzon's view, if the children learn reading, writing, and arithmetic? Was Father Damien's work caring for the lepers on Molokai religious?
Judge Berzon's narrow list of acceptable religious practices excludes numerous religious traditions. It is not clear whether she would accept as a religious association a traditional Inner Light Quaker "meeting" in a "meeting house," where "congregants worship in silence or speak only when they feel inwardly led to do so."
If only churches and the like are within the exemption, as she contends, the religious exemption would be limited to employees in the buildings where people sit, stand, and kneel as they recite traditional prayers and sing traditional hymns. Judge Berzon's interpretation of the exemption would better fit the mining equipment manufacturer in EEOC v. Townley Engineering & Manufacturing Co.,
As the government brief points out, under Judge Berzon's view, Mother Theresa's mission, performing humanitarian work, would be classed as secular, so if she were performing it in America, she would have to employ people who rejected the underlying religious premise of her enterprise hoping that despite their philosophical rejection, they would perform it faithfully to her ideals. On what principle can Judge Berzon concede, as she does, that Mother Theresa's work was religious, yet contend, as she does, that her organization could be religious only if it were limited to "worship, religious study, or the dissemination of religious doctrine." Since it was not, perhaps under Judge Berzon's view it would be appropriate to launch a class action against Mother Theresa's organization and similar ones if they engaged in religious discrimination in hiring or because of the severe and pervasive pressure
The core of Judge Berzon's dissent is the idea that performance of activities that are often performed in a secular context cannot be religious. That is mistaken. When the Pope washes feet on the Thursday before Easter, that is not secular hygiene, and the Pope is not a pedicurist. Confession to a priest and confession to a psychiatrist may have the same content, but that does not make confessing to a priest secular. Fitness clubs and Falun Gong both perform calisthenics. Religious missionaries and Peace Corps volunteers both perform humanitarian work, but only the latter is secular. Humanitarian work may be a secular or a religious activity, depending on motivation and meaning among those who perform it.
Judge O'Scannlain's test errs because of its focus on nonprofit corporate organization. Some people worship in assemblies in each others' homes or borrowed conference rooms, with no corporate apparatus. Particularly when the congregations are small, such as a few Jews, Quakers, or Unitarians in a small town, they may not incorporate, and they may on some occasion employ a number of students to run a religious summer camp to instill their religion in their children, yet the exemption under Judge O'Scannlain's definition would not enable them to limit hiring to coreligionists. Absence of corporate papers and nonprofit status would defeat the exemption under his test, if nonprofit corporate and tax status is a sine qua non.
The narrowness problem may be repairable by a tweak in the test, but the overbreadth problem is not. Judge O'Scannlain's test is too broad because it would allow nonprofit institutions with church affiliations to use their affiliations as a cover for religious discrimination in secular employment. Judge Berzon is correct that under Judge O'Scannlain's test, the mining equipment company in Townley could discriminate by religion simply by incorporating itself as a nonprofit and getting 501(c)(3) status.
There is not much congruence between nonprofit status and the free exercise of religion, or any eleemosynary purpose. Any enterprise can be operated as a 501(c)(3) nonprofit if its stated purpose is "religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals."
For example, physicians may organize a hospital as a nonprofit affiliated with a church, stating a religious purpose of healing the sick in its articles and bylaws. The hospital may then charge full market prices to patients and their insurers, and pay the physicians who organized it and their employees around $50,000 a year for residents, $200,000 a year for employed physicians working a week on, week off, and $400,000 a year for radiologists. It can defend its stated religious purpose with the true argument that whatever church it affiliates with promotes healing the sick as a religious duty. Yet the non-profit hospital differs from a for-profit hospital only in that the board does not have to concern itself with pesky stockholders and does not have to pay income taxes on the excess of revenues over expenses and depreciation. The free exercise concern protected by the exemption does not suggest that the hospital should be allowed to discriminate by religion in hiring, since physicians, nurses, and other employees can perform their tasks equally well regardless of their religious beliefs.
I offer this hypothetical not only because it illustrates the overbreadth of Judge O'Scannlain's test, but also because hospitals do indeed have a history of religious discrimination. Hospitals used to avoid hiring Jews for residencies, a major reason why Jewish hospitals were created in the United States.
We can arrive at a usable modification of Judge O'Scannlain's test by considering the difference between the hypothetical hospital and the Salvation Army. They both render services to people of different or no religions. Both are organized as
Likewise, World Vision ministers to people to serve a religious purpose. Many churches are too small to do this themselves, and have to group together with other small, impecunious churches to do their mission and service work, so World Vision is an association but not a church. The evidence makes it quite clear that the idea is not merely foreign aid in poor countries, but what amounts to missionary work by making its service providers exemplars of Christian charity. World Vision is like the hypothetical missionary enterprise of a group of Protestant churches of various denominations described earlier, except that they show by example, rather than by express proselytizing, that theirs is a good religion. No doubt many of its beneficiaries will become Christians, just as Sokka Gakkai assisted by church groups in their transitions to American life sometimes become firm adherents of the churches that have helped them.
And unlike the hypothetical hospital, World Vision does not charge its beneficiaries the market value of its services. So far as we can tell from the record, it does not charge them at all. Looking at how an institution charges offers an objective test for sorting out which institutions are designed to exchange goods or services for money, from those designed to give them away except perhaps for nominal charges in order to serve a religious objective. This objective measure relates closely to the purpose of the exemption. We can tell much about an institution's purpose by looking at the objective evidence of how it charges. A religious purpose may be a motive, or money may be a motive, for work that serves others. If money is not available as an incentive, that is strong evidence, in the purportedly religious institution, that exercise of religion is the objective. If satisfaction of a religious purpose is insufficient to motivate the performance, then the performance may be consistent with religion but not motivated by it. There is nothing wrong with money as an incentive, but its presence or absence is strong evidence of what the incentive is.
Accordingly, I would reformulate Judge O'Scannlain's test as this: To determine whether an entity is a "religious corporation, association, or society," determine whether it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.
Under that test, World Vision is a religious corporation, so I would affirm.
BERZON, Circuit Judge, dissenting:
World Vision Inc. maintains that it is a "religious corporation, association, educational institution, or society" and so not covered by Title VII's prohibition against hiring or discharging employees on the basis of religion. See 42 U.S.C. § 2000e-1(a). If World Vision is right, then it may refuse to hire, and may fire, on the basis of their religious beliefs individuals—like the plaintiffs here—whose jobs have no religious element at all.
Judges O'Scannlain and Kleinfeld agree that World Vision qualifies for the exemption and so can insist that all of its employees share the organization's belief that "Jesus Christ is God and a member of the Trinity." My colleagues arrive at this conclusion by fashioning brand new tests for applying the Title VII religious organization exemption.
Either test would allow a broad range of organizations to refuse to hire and to fire any employee on the basis of religious belief, including organizations that lack any ties to organized religion and perform daily operations entirely secular in nature. As a result, even Judge Kleinfeld's more restrictive test would transform what has always been a narrow exemption from the general prohibition on religious discrimination into an exceedingly broad one, with no obvious stopping point. I explain below that these expansive standards for invoking the exemption contravene our precedent and the clear language of the statute while fostering the very problem of religious-based inquiries it seeks to cure.
The majority's characterization of defendant World Vision's focus and activities is fully accurate. I pause here to emphasize several facts that become significant in the discussion that follows.
According to its website, World Vision is "a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice." Four of World Vision's six core "ministries" are described in purely secular terms: caring for children by providing clean water, health care, food and clothing; building self-reliance through technological innovation and training; emergency relief; and educating Americans about global poverty. Although World Vision lists "evangelism" as a ministry, it "never proselytize[s]." Instead, it "integrates Christian activities" into its outreach work by working with local churches and "arrang[ing] for interested children to attend events such as Bible camps or clubs so they can learn more about the Christian faith." World Vision does not require or urge aid recipients to participate in religious worship or instruction, although it does "offer those opportunities."
World Vision also does not ordain ministers, and it is not affiliated with any particular church. Partnering with a wide variety of churches, including Methodist, Catholic, Episcopal, Lutheran, and independent sects, World Vision does not require representatives of those churches involved in World Vision activities to sign any document affirming their commitment to the Apostles' Creed or World Vision's Statement of Faith.
Finally, the plaintiffs performed completely secular job duties. Spencer worked in a department that provided facilities upkeep; Youngberg worked as a purchaser, warehouse technician, and scheduler; and Hulse was an administrative assistant. World Vision fired them because, although they continued to be practicing Christians, they no longer believed in the Trinity, the idea that "the father, son and holy ghost are one and the same."
Two earlier Ninth Circuit cases provide guidance—or should, the majority's determination to push them aside notwithstanding—in assessing whether World Vision falls within the exemption's intended scope.
The first, EEOC v. Townley Engineering & Manufacturing Company, 859 F.2d 610 (9th Cir.1988) considered whether the exemption covered a for-profit company founded as a "Christian, faith-operated
In Townley, the employer enclosed Gospel tracts in outgoing mail; printed Bible verses on invoices and purchase orders; donated money to churches and other religious entities; and conducted weekly prayer meetings for employees. Nonetheless, Townley was held primarily secular and so not a "religious corporation," because it was for-profit and unaffiliated with any church, its articles of incorporation included no religious purpose, and it produced a secular product. Id. at 619.
The second seminal Title VII religious exemption case in this court, EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir.1993), involved a group of related schools founded pursuant to a bequest that required that all teachers be Protestants. To determine whether the Schools came within the exemption, we considered their purpose, faculty, student body, student activities and curriculum, as well as the fact that the Schools were unaffiliated with any church, and concluded that "the religious characteristics of the Schools consist of minimal, largely comparative religious studies, scheduled prayers and services, quotations of Bible verses... and the employment of nominally Protestant teachers." Id. at 463. The Schools, in sum, were "an essentially secular institution operating within an historical tradition that includes Protestantism" and, as such, ineligible for the exemption. Id. at 463-64.
Taken together, Townley and Kamehameha Schools direct us to consider whether an organization may avail itself of § 2000e-1's exemption by applying two broad, interwoven principles. First, "[a]ll significant religious and secular characteristics must be weighed to determine whether the corporation's purpose and character are primarily religious." Townley, 859 F.2d at 618. Second, "[w]e construe the statutory exemption[ ] narrowly," with the understanding that "only those institutions with extremely close ties to organized religion [are] covered." Kamehameha Sch., 990 F.2d at 460. The tests advanced by Judges O'Scannlain and Kleinfeld depart from both principles, as I explain below.
The first principle established by Townley and Kamehameha Schools is one of methodology—that an understanding of whether an organization is "primarily religious" requires an assessment of observable religious and secular aspects of an organization's purposes and activities— that is, a fact-based, functional inquiry. Permitting self-definition by purportedly religious organizations, as Judges O'Scannlain and Kleinfeld would allow, cannot be reconciled with this principle.
The majority acknowledges that Kamehameha Schools and Townley focused on the observable religious or secular nature of the organizations' attributes, but justifies departing from this approach by asserting that those cases "contain[ ] no indication that the religious or secular nature of any particular activity or purpose was in dispute." Maj. Op. at 1118. This portrayal of our precedents is wrong. Close inspection
Kamehameha Schools held the Schools' purpose secular despite the Schools' insistence that "the purpose of the Schools is primarily religious." Brief of Defendant-Appellee at 25, Kamehameha Sch., 990 F.2d 458 (No. 91-16586). The Schools argued that they "ha[d] steadfastly remained primarily religious in purpose ... for over a century .... it is [our] purpose not only to provide education, but to provide such education in a Protestant Christian atmosphere which pervades every aspect of campus life." Id. at 20. As evidence of its religious purpose, the Schools cited the existence of the Bishop Memorial Church as "an integral part" of school life; daily prayer in classrooms; the presence of an ordained minister as chaplain; and a religious coursework requirement. Id. at 21. Our independent review of documents created and distributed by the Schools, however, led us to the conclusion that the Schools' "mission" was "to help native Hawaiians `participate in contemporary society for a rewarding and productive life' by providing a solid education ... and the moral guidance necessary to help students `define a system of values.'" Kamehameha Sch., 990 F.2d at 465 (brackets omitted). We rejected the Schools' claim that their central purpose was religious, observing that "the purpose and emphasis of the Schools have shifted over the years from providing religious instruction to equipping students with ethical principles that will enable them to make their own moral judgments." Id. at 462.
The religious nature of the Schools' curriculum was also in dispute. The Schools pointed to their curriculum as evidence that the Schools were "primarily religious," emphasizing that Bible stories were taught by "Christian education teachers" starting in kindergarten and by an ordained minister starting in seventh grade, and that completion of the "Ekalesia" religious instruction program was a graduation requirement. See Brief of Defendant-Appellee at 26, 29. We found that despite these requirements, secular instruction outweighed the religious elements of the curriculum, noting that the Schools "offer a complete array of courses in math, science, English, languages, and social studies, all of which are taught from a secular perspective. No effort is made to instruct students in Protestant doctrine." Kamehameha Sch., 990 F.2d at 463. Characterizing the curriculum as containing "minimal, largely comparative religious studies" and noting that "[r]eferences to Bible verses, comparative religious education, and even prayers and services are common at private schools and cannot suffice to exempt such schools from § 2000e-1," we rejected the Schools' contention that they were a religious organization for purposes of Title VII and so allowed to hire and fire employees based on religious belief.
The tests advanced by Judges O'Scannlain and Kleinfeld cannot be squared with our precedent on the grounds that in Kamehameha Schools the "characterizations[of the organizations' attributes] were not our own." Maj. Op. at 1118. The Schools had not conceded that their purpose had shifted from religious to secular, nor that the religious components of the curriculum were "minimal." Rather, those
The majority correctly observes that "our case law does not compel us to march down a checklist of considerations" in assessing whether an organization is "primarily religious," nor does it compel "rigid adherence" to the factors considered by Townley or Kamehameha Schools. Maj. Op. at 1114-15. The relevant characteristics will depend on the type of institution invoking the exemption.
The second principle firmly established by Townley and Kamehameha Schools is a substantive one—that Congress intended the § 2000e-1(a) exemption to apply narrowly, covering "only those institutions with extremely close ties to organized religion... Churches, and entities similar to churches, were the paradigm." Kamehameha Sch., 990 F.2d at 460 (quoting Townley, 859 F.2d at 618).
The tests advanced by Judges O'Scannlain and Kleinfeld would permit a broad variety of religiously influenced organizations to employ only individuals with prescribed religious beliefs in jobs with no religious function. Whether or not that would be a superior rule, it is one impossible to reconcile with the clear text of the statute.
Title VII's religious organization exemption provides:
42 U.S.C. § 2000e-1(a). As I develop below, at common law and in contemporary common legal usage, "religious society" meant a community organized for worship; "religious corporation" referred to a religious society that incorporated to achieve a form that was legally cognizable under civil law. See, e.g., Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (using "church," "religious society," and "religious association" interchangeably). "Where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word." Evans v. United States, 504 U.S. 255, 259, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (quotations and brackets omitted). We must therefore assume that Congress used the terms "religious corporation, association ... or society" as they were commonly understood: to describe a church or other group organized for worship, religious study, or the dissemination of religious doctrine.
When Congress enacted the religious organization exemption, the term "religious society" had long been used in legal parlance to apply to organizations formed for the central purpose of communal worship and religious study. See, e.g., Mordecai F. Ham Evangelistic Ass'n v. Matthews, 300 Ky. 402, 189 S.W.2d 524, 527 (1945) ("The term `religious society' is an old one ... it has had a well-understood meaning, being used interchangeably with `church' or some group organized and maintained for the support of public worship."); U.S. Nat'l Bank v. Poor Hand Maids of Jesus Christ, 148 Wis. 613, 135 N.W. 121, 122 (1912) ("The term `religious society' ... has often been construed by courts.... It is a body of persons who usually meet in some stated place for worship of God and religious instruction."); State v. Stuth, 11 Wn. 423, 39 P. 665, 666 (1895) ("The words `religious society' ... have their ordinary meaning, and would include all religious societies or congregations met for public worship."). This usage has remained unchanged since enactment of Title VII's religious exemption. See, e.g., Parshall Christian Order v. Bd. of Review, Marion County, 315 N.W.2d 798, 802 (Iowa 1982) ("A `religious society' has been defined to be `a voluntary association of individuals ... united for the purpose of having a common place of worship and to provide a proper teacher to instruct them in religious doctrines and duties.'" (citation omitted)).
While "religious association" does not appear to have a distinct meaning, the Supreme Court has deployed the term as a
As with the terms "religious society" and "religious association," Congress must be presumed to have been aware of the established legal meaning of the term "religious corporation." That term has consistently referred to the legally-recognized form created by a religious society or association so that it could assert property and other rights under civil law. In colonial America, religious societies were able to incorporate only upon receiving special charters from the Crown or colonial legislature, rarely granted to any religious societies other than the Church of England. R.H. TYLER, THE LAW OF RELIGIOUS SOCIETIES 133, 135 (1866).
Without a corporate existence it was impossible for churches to hold property. The Virginia courts, for example, refused to let the Catholic Church of Richmond take possession of property bequeathed it by a donor because the Church lacked a fixed identity under the law. See Gallego's Ex'rs v. Att'y Gen., 30 Va. 450 (1832) ("[A]s the society or congregation is not incorporated ... who are to be regarded as the beneficiaries?"). Churches therefore sought corporate status, to assure "the institutional identity that was provided by internal governance and the assurance of immortality." Liam Séamus O'Melinn, Neither Contract nor Concession: The Public Personality of the Corporation, 74 GEO. WASH. L. REV. 201, 223 (2006); see, e.g., Kedroff, 344 U.S. at 128, 73 S.Ct. 143 (Jackson, J., dissenting) ("[T]his denomination wanted the advantages of a corporate charter for its Cathedral, to obtain immunity from personal liability or other benefits."); Baltimore & P.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 330, 2 S.Ct. 719, 27 L.Ed. 739 (1883) ("[T]he Fifth Baptist Church[ ] was incorporated that it might hold and use an edifice, erected by it, as a place of public worship for its members..."). States responded by passing statutes permitting religious societies to incorporate. See, e.g., MCKINNEY'S RELIGIOUS CORPORATIONS § 4 (permitting "property of
The term "religious corporation" thus had a clear and universal meaning at the time Congress enacted § 2000e-1(a) of Title VII: It referred to the legally cognizable form of a religious society, which in turn was commonly understood to mean a church or similar entity organized for the purpose of worship. See BLACK'S LAW DICTIONARY 368 (8th ed.2004) (defining "religious corporation" as "a corporation created to carry out some ecclesiastical or religious purpose"). Entities consisting of coreligionists but organized around secular purposes or activities were outside the term's scope. See State v. Hutterische Bruder Gemeinde, 46 S.D. 189, 191 N.W. 635, 643 (1922) (holding that an organization whose principal purpose was farming and only "lastly and secondarily" religion was not a religious corporation); Franta v. Bohemian Roman Catholic Cent. Union, 164 Mo. 304, 63 S.W. 1100, 1102 (1901) (holding that a Catholic fraternal beneficiary society was "in no sense a religious corporation. It is not formed to teach or propagate the religious faith, but to cultivate the spirit of fraternity among its members....").
In short, in delineating the statutory exemption Congress chose words that, through a long common law and statutory history, signified organizations that existed for the purpose of worship and religious learning. Given that established understanding, the plain meaning of the language used conforms with—indeed, dictates—the narrow scope for the exemption recognized in Townley and Kamehameha Schools.
A structural analysis of Title VII as a whole supports this conclusion. Section 2000e-1(a) is one of three exceptions carved out of Title VII for the purpose of accommodating religious freedom. There is, in addition, a judicially-created "ministerial" exception designed to address this concern. When viewed in the context of the other exceptions, it becomes clear that the exemption at issue here serves a purpose unique to churches and other pervasively religious societies and is meant to be confined to such associations.
Moreover, any organization may "hire and employ" on the basis of religion where religion is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e)(1); see Kamehameha Sch., 990 F.2d at 465.
The overall statutory scheme of Title VII makes clear that the religion-based exceptions are narrowly tailored to achieve distinct purposes. As any organization may, under the BFOQ provision, base particular hiring decisions on religious affiliation to the extent required by operational necessity, § 2000e-1(a) serves the distinct purpose of permitting organizations exclusively devoted to propagating religion to conduct all their activities within a community composed wholly of coreligionists. For such entities, "[d]etermining that certain activities are in furtherance of an organization's religious mission, and that only those committed to that mission should conduct them, is [ ] a means by which a religious community defines itself." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J., concurring). The language and overall structure of Title VII indicate that
Identifying the interaction of these exemptions responds to Judge Kleinfeld's concern that a Protestant religious association might be required to hire atheists, Jews, or Catholics to perform Protestant missionary work. Concurrence of Kleinfeld, J., at 12562-63. First, such a group may fit within § 2000e-1(a) if organized for the dissemination of religious doctrine. Second, an association falling outside the narrow confines of § 2000e-1(a) might still argue that religious affiliation is a BFOQ for employees performing missionary work.
Townley's statement, reaffirmed in Kamehameha Schools, that the exemption is limited to churches and similar entities is thus entirely consistent with the commonly understood meaning of the terms in the provision and the structure of the statute as a whole. To stretch the exemption, as my colleagues now do, to encompass entities organized around secular activities conducted with an assertedly religious motivation surely violates Congress's intent.
My colleagues' approach is not only at odds with our precedent and the plain meaning of the statute. The attempt to escape from our precedent is driven by the misguided thesis that any inquiry into the activities of an avowedly religious organization is constitutionally suspect. Although the majority would subvert our precedent and the plain meaning of the statute in the name of a nonexistent constitutional problem, these new tests fail to resolve the constitutional issue that troubles my colleagues.
Under the newly minted standards proffered by Judges O'Scannlain and Kleinfeld, we must accept without inquiry the parties' own characterizations of particular institutional attributes as either religious or secular, as any judicial analysis of a purportedly religious organization's activities or purpose is "constitutionally troublesome." Maj. Op. at 1115. The majority invokes Amos for this proposition, but Amos is not controlling in this case. All the parties in Amos agreed that the employer, a nonprofit gymnasium wholly owned by the Mormon Church, was entitled to the religious organization exemption. Amos, 483 U.S. at 331 n. 3, 107 S.Ct. 2862. The issue of how to assess which organizations are within the religious exemption was thus not before the Court.
Instead, the question in Amos was whether Congress's expansion of the exemption to permit religious organizations to discriminate with respect to non-religious jobs unconstitutionally advanced religion in violation of the Establishment Clause. Id. at 330, 107 S.Ct. 2862. So, when the Supreme Court in Amos stated that "it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious," id. at 336, 107 S.Ct. 2862, it was not
The majority also cites NLRB v. Catholic Bishop, 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), for the proposition that "the very process of inquiry leading to findings and conclusions" with respect to the secular or religious nature of a particular activity impinges on First Amendment rights. Maj. Op. at 1116-17. Catholic Bishop, however, reflects concerns directed at "the critical and unique role of the teacher in fulfilling the mission of a church-operated school." Id. at 501, 99 S.Ct. 1313; see also Universidad Central de Bayamon v. NLRB, 793 F.2d 383, 404 (1st Cir.1986) (en banc) ("[T]he Supreme Court was not concerned simply with general state regulation of a religious educational institution .... the Court saw teachers in parochial schools as essentially servants of the Church in carrying out [the schools'] religious missions."). We have accordingly declined to apply Catholic Bishop to employees other than teachers in religious schools. See NLRB v. Hanna Boys Ctr., 940 F.2d 1295, 1301 (9th Cir. 1991) ("Other employees of parochial schools, whether professional or `blue collar,' are expressly excluded from the ruling." (citation omitted)). And, in contrast to § 2000e-1(a), which exempts all employees of religious organizations, Catholic Bishop left intact the National Labor Relations Board's jurisdiction over non-teacher employees of religious organizations.
Moreover, Catholic Bishop's rule of constitutional avoidance is only available when it rests on a "plausible interpretation[ ] of a statutory text." Clark v. Suarez Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). Catholic Bishop found no Congressional intent embodied in the National Labor Relations Act to subject teachers in church-operated schools to the jurisdiction of the National Labor Relations Board. Here, Congress's clear intent was to prohibit discrimination on the basis of religion, 42 U.S.C. § 2000e-2(a), subject only to a narrow exemption. As I have explained, the text of that exemption reveals that it was applicable to organizations devoted to worship and religious instruction—"churches, synagogues, and the like, and organizations closely affiliated with those entities." Townley, 859 F.2d at 618. As the constitutional avoidance canon is "a means of giving effect to congressional intent, not of subverting it," Clark, 543 U.S. at 382, 125 S.Ct. 716, it cannot be relied on to create a test for the Title VII
The majority also maintains that Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), prohibits any inquiry into whether World Vision is owned by, affiliated with, or financially supported by churches, because such an inquiry would require drawing impermissible distinctions between different religious groups. Maj. Op. at 1117-18. In fact, the Townley/Kamehameha Schools approach in no way conflicts with Larson.
Larson stands only for the undisputed premise that statutes that make "explicit and deliberate distinctions between different religious organizations" are subject to strict scrutiny. 456 U.S. at 246 n. 23, 102 S.Ct. 1673. There, the statute at issue distinguished on its face between religious groups that were primarily member-funded and those that were not. Section 2000e-1(a) contains no such distinctions.
Nor does the Townley/Kamehameha Schools approach rest on "overt discrimination against a particular church," Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), in any other respect. Kamehameha Schools specifically noted that the Schools had never been controlled or supported by a religious group and that they were unaffiliated with any religious group. 990 F.2d at 461; see also Townley, 859 F.2d at 619. This observation does not require a comparison between well-established churches and new ones, or a distinction between organizations owned or financially supported by a single church and those receiving support from a broad spectrum of churches (as in Larson), or between any other religions or types of religions. Instead, our precedents merely posit that an entity with close affiliations with churches is more likely to be primarily religious than an entity that has none at all.
The majority is thus left to rely on out-of-circuit cases that interpret statutes other than Title VII. None are directly relevant, and the constitutional precepts underlying those cases are inapplicable here even by analogy.
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.2008), concerned a statute that required state officials to analyze whether university theology courses "tend to indoctrinate or proselytize," necessitating an inquiry into "how religious beliefs are derived." Id. at 1261-62 (quotation omitted). No such inquiry is required by the Townley/Kamehameha Schools functional, multifactor approach.
University of Great Falls v. NLRB, 278 F.3d 1335 (D.C.Cir.2002), and Bayamon, 793 F.2d 383 (1st Cir.1986) (en banc), are not pertinent because they concerned admittedly religious organizations: universities operated by Catholic orders.
In sum, none of the cases the majority relies on as supporting new tests for applying the religious organization exemption would have traction even if we were free to rely on the doctrine of constitutional avoidance in this case—which, given the clarity of the language of the Title VII religious organization exemption, we are not.
More broadly, adjudicating Establishment and Free Exercise Clause claims inevitably requires distinguishing between the religious and the secular by, for example, asking whether a law evinces the purpose or has the effect of promoting religion. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 648-49, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); Edwards v. Aguillard, 482 U.S. 578, 591, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (invalidating a state law which required schools to teach creationism if they chose to include evolution in their curricula because it was motivated by "the teachings of certain religious denominations"); Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) ("The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature."). Preserving the proper balance and distance between church and state necessarily involves courts in examining activities that are avowedly connected to religion, particularly where the organization invokes religion to seek an exemption from otherwise applicable law. See Hanna Boys Ctr., 940 F.2d at 1303 (upholding the NLRB's findings of facts and rejecting the Center's contention that child care workers were "intimately involved with the students as spiritual and theological mentors"); Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183, 190 & n. 4 (2d Cir.2004) (suggesting that the Religious Land Use and Institutionalized Persons Act requires courts to distinguish between secular and religious purposes, as "not every activity carried out by a religious entity ... constitutes `religious exercise'" (quoting 146 Cong. Rec. S7774-01, S7776 (July 27, 2000))); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1397 (4th Cir.1990) (concluding, in rejecting a church-owned school's claim that the Free Exercise Clause precluded application of the Fair Labor Standards Act to its teachers, that "[t]he pay requirements at issue do not cut to the heart of Shenandoah beliefs").
Moreover, adjudication of Free Exercise and Establishment Clause claims sometimes requires courts to determine whether religious beliefs are sincerely held, see, e.g., Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984), and to inspect a religious belief to decide whether it has been substantially burdened by state action. See, e.g., May v. Baldwin, 109 F.3d 557, 562-63
Indeed, Title VII's other religious organization exceptions require judicial inquiry of the kind that the majority condemns as constitutionally invalid. To apply the ministerial exception doctrine, for example, we examine the actual functions of the employees said to be within the exception. See Elvig, 375 F.3d at 958 (noting that courts "look[ ] to the function of the position rather than to ordination in deciding whether the ministerial exception applies to a particular employee's Title VII claim"); see also Dole, 899 F.2d at 1396 (rejecting application of the ministerial exception to teachers who "perform no sacerdotal functions ... [and] belong to no clearly delineated religious order"); EEOC v. Mississippi Coll., 626 F.2d 477, 485 (5th Cir.1980) ("The faculty members ... neither attend to the religious needs of the faithful nor instruct students in the whole of religious doctrine."). Civil courts are "incompetent judges of matters of faith, discipline, and doctrine," Watson, 80 U.S. at 732 (quotations omitted), but whether a particular church employee functions as a minister is a non-doctrinal matter.
It cannot be, as the majority suggests, Maj. Op. at 1116, that courts are constitutionally prohibited from ascertaining a purportedly religious organization's purpose when the test for assessing "whether [] government entanglement with religion is excessive" requires courts to "examine the character and purposes of the institutions" involved. Lemon, 403 U.S. at 615, 91 S.Ct. 2105. If any judicial action beyond simply accepting the representations of a purportedly religious organization were "constitutionally troublesome," courts would be incapacitated entirely from policing the boundaries of the constitution's religion clauses. Avoiding entirely such inquiry cannot be the fulcrum for an otherwise implausible statutory interpretation.
Finally, even if the majority's theory— that Townley and Kamehameha Schools' functional inquiry requires both impermissible differentiation between religions and unavoidable intrusion into doctrinal matters—were correct, the proposed solutions do not solve the problem my colleagues perceive. Our case law applying the statutory exemption only to churches and entities like churches is in fact less intrusive than the tests my colleagues would adopt. While Judges O'Scannlain and Kleinfeld purport to avoid judicial entanglement in religious doctrine by deferring entirely to the self-characterization of any organization seeking to claim the exemption, that approach would inevitably require courts to "troll[ ] through a person's or institution's religious beliefs," Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), if it is to be applied in any meaningful way.
To see why, let us suppose that, after our decision in Townley, the mining company's owners reincorporated the entity as a nonprofit and revised its articles of incorporation to describe its purpose as "sharing the Gospel of the Lord Jesus Christ by creating a community of individuals with common religious beliefs and providing a means for them to advance God's purpose
Under my colleagues' proposed standards, we would then have no choice but to consider whether the revisions in the mining manufacturer's format and self-presentation qualify it as a "religious corporation." Do the corporation's activities sufficiently further its "self-identified religious purpose," in light of the fact that there is only the most tenuous relationship between that purpose and manufacturing mining equipment? Such an inquiry would necessarily require an intrusive assessment into the import and sincerity of the proffered religious beliefs. And were we to reject such an inquiry as constitutionally prohibited, we would be forced to disregard the fact that the manufacture of equipment remains the organization's primary operational pursuit and that there is nothing more than the asserted religious beliefs of the organization's founders to connect that secular activity to the stated religious purpose. Yet, under our precedent such beliefs, even if sincere, "are simply not enough ... to make [a] corporation `religious' within the meaning of [the statute]." Townley, 859 F.2d at 619.
Judge Kleinfeld suggests that "looking at how an institution charges" remedies this problem: "If money is not available as an incentive, that is strong evidence, in the purportedly religious institution, that exercise of religion is the objective." Concurrence of Kleinfeld, J., at 1132. In many cases this observation is undoubtably true. But just as nonprofit status is often a poor indicator of religious purpose, so too is an answer to the question whether the entity engages in the "exchange of goods or services for money beyond nominal amounts." Id. at 1133. The mining company in Townley could establish an entity satisfying Judge Kleinfeld's standard, with a purportedly religious purpose. Such an entity could still have a business impact, by reflecting positively on the profit-making company's corporate image and boosting the company's bottom line. Judge Kleinfeld's solution, then, would not resolve my concerns with the majority's standards.
In contrast, the approach mandated by Townley and Kamehameha Schools allows us to ensure that the exemption is applied narrowly without delving into sensitive doctrinal matters. See Jones, 443 U.S. at 603-05, 99 S.Ct. 3020 (approving an approach that applied neutral legal principles to a church schism dispute, rejecting the dissent's suggestion that "a rule of compulsory deference [to religious authority] would somehow involve less entanglement of civil courts in matters of religious doctrine"). That approach does not require analysis of "how religious beliefs are derived" or whether the organization's "actions were mandated by its religious creeds." Colo. Christian Univ., 534 F.3d at 1262, 1264 (quotations, citations and brackets omitted). Nor does it demand that we define "who is a `Christian.'" Id. at 1265. Instead, our precedent focuses on observable, functional, and largely self-reported attributes such as an institution's daily activities and the documents and procedures that govern them, the community it serves, and its formal affiliation with religious bodies or lack thereof. And
To the extent that the majority's concern that our inquiry requires excessive entanglement in religious doctrine has any validity, a different approach might address these concerns while preserving Congress's intent with respect to the exemption's scope. If we were at liberty to alter the inquiry established in Townley and Kamehameha Schools, I would suggest that we ask only whether the primary activity of a purportedly religious organization consists of voluntary gathering for prayer and religious learning. This approach would even better match our analysis to the centuries-old definition of religious society while avoiding the questions of affiliation and purpose that, however unnecessarily, trouble the majority.
I conclude by applying the analysis our precedent requires to determine whether World Vision is a religious organization within the meaning of § 2000e-1(a). World Vision's Christian beliefs are strongly evident in its articles of incorporation, operational policy, and other foundational documents. It hires only co-religionists and provides religious services, albeit for staff only. Indeed, "staff spiritual formation" is a major part of World Vision's religious programming.
Still, World Vision is not managed, controlled, or operated by, or affiliated with, any particular church. World Vision "partners" with a broad variety of churches—not only the Protestant churches that share World Vision's faith, but also Catholic, Muslim, and Jewish religious groups. World Vision is not at all accountable to these churches but only to its own Board of Directors. The Board "must have representation from ... church and ministry leadership," but also from non-church personnel who have worked among the poor, have experience in financial management, and have ties to a "major donor community."
World Vision claims that 84% of its private cash contributions come from churches or individual coreligionists that share its faith but points to nothing besides the conclusory statements of World Vision officers ("We know that our supporters are committed Christians") for the proposition that individual donors are motivated to give by their shared faith. Moreover, cash contributions account for
World Vision provides some religious materials to those it assists in the countries where it provides humanitarian aid, through programs like "Youth Bible Curriculum," "Community Bible Reading," "Scripture Search," and "Children in Christ." World Vision's Church Partnerships are intended to "help churches of every denomination work effectively together." While World Vision maintains that it "could" include prayer services in its charitable work, the record contains only one description of such an event.
Moreover, World Vision does not represent that church outreach or other explicitly Christian work comprises the majority of its daily operations. Instead, the vast majority of World Vision's work consists of humanitarian relief, including "provid[ing] school supplies, clothes, toys, household goods and building supplies," to U.S. citizens and providing potable water, emergency medical care, and vocational training to refugees and vulnerable populations throughout the world, distributing condoms to reduce the spread of HIV among sex workers, improving the transparency and responsiveness of legislative bodies, improving child and maternal health, and preventing HIV infection.
Ultimately, I am convinced that, considering the factors emphasized in Townley and Kamehameha Schools, World Vision is not a religious corporation, association or society within the meaning of § 2000e-1(a). Instead, World Vision's purpose and daily operations are defined by a wide range of humanitarian aid that is, on its face, secular. Although World Vision maintains that "Christian witness" is "integrated within" these activities, World Vision's definition of "Christian witness" encompasses all humanitarian acts, from digging a well to providing food and water to the hungry. So this circular argument leads nowhere. Only the personal religious beliefs of World Vision staff differentiate these humanitarian acts from the "ministry" that could, as World Vision concedes, be provided by people of all faiths or no faith. In short, World Vision is nothing like a church, but resembles in its primary activities a wide range of charitable organizations.
I have no doubt that "World Vision's theology compels it to serve the physical needs of the poor in the name of Jesus Christ," and I do not attempt to define "what does or does not have religious meaning" to religious adherents. New York v. Cathedral Acad., 434 U.S. 125, 133, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977). Townley reminds us, however, that deeply-held religious beliefs do not, if combined with primarily secular activities, make the organization religious within the meaning of the statute. 859 F.2d at 619. For this reason, Judge Kleinfeld's proposal—namely, asking whether the entity "engage[s] primarily or substantially in the exchange of goods or services for money beyond nominal amounts"—does not reconcile his concurrence with Townley. Answering this question may illuminate an organization's motivations, but it does not transform an entity performing primarily secular activities into one organized for worship, religious study, or the dissemination of religious doctrine.
This same principle is reflected elsewhere in our case law dealing with religious exemptions. In Volunteers of America, Los Angeles (VOA) v. NLRB, 777 F.2d 1386 (9th Cir.1985), a church-operated social services agency claimed that the National Labor Relations Board's exercise of jurisdiction over its employees was unconstitutional. The VOA contended, as World Vision does here, that its "activities are an integral, inseparable function of its avowed
More generally, we may completely credit the sincerity of religious faith, and adherents' belief that their faith mandates certain activities while still determining that the religious belief does not preclude the application of a neutral, secular law. "[G]overnment simply could not operate if it were required to satisfy every citizen's religious needs and desires." Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 452, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). It may be that World Vision's staff would prefer to associate only with coreligionists. But it has not alleged that requiring them to adhere to Title VII would burden their free exercise of religion. And it is farfetched to believe that preventing World Vision from firing administrative assistants, schedulers and facilities managers because they do not subscribe to a particular Christian doctrine would render World Vision's mission statement nothing more than a "meaningless," "nostalgic slogan," as World Vision maintains.
Title VII's prohibition on religious discrimination aims to protect the religious freedom of employees by insulating their religious beliefs from their economic well-being. That is why "[a]ny exemption from Title VII's proscription on religious discrimination necessarily has the effect of burdening the religious liberty of prospective and current employees." Amos, 483 U.S. at 340, 107 S.Ct. 2862 (Brennan, J., concurring). Section 2000e-1(a) reflects Congress's recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations' own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.
My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self-declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees. The consequence would be a broadened impact on the religious freedom of employees and prospective employees, who would feel compelled to reshape their religious beliefs so as to assure their economic survival.
With competing religious freedom concerns thus embedded in the delineation of a religious organization exemption, Congress struck a balance, in part by including another statutory exception to minimize interference with organizations that do not qualify for the complete exemption from
I would hew to the line Congress drew and this court has heretofore respected; my colleagues would not. I respectfully dissent.
