Vincent C. Allred

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Religious Discrimination in Institutions and Services

St. John's University School of Law

The Catholic Lawyer Volume 19 Number 4 Volume 19, Autumn 1973, Number 4 Article 15 March 2017 Religious Discrimination in Institutions and Services Vincent C. Allred Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl  Part of the Catholic Studies Commons Recommended Citation Vincent C. Allred (1973) "Religious Discrimination in Institutions and Services," The Catholic Lawyer: Vol. 19 : No. 4 , Article 15. Available at: https://scholarship.law.stjohns.edu/tcl/vol19/iss4/15 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. RELIGIOUSDISCRIMINATION ININSTITUTIONS ANDSERVICESVINCENT C. ALLRED*As you will note from your programs, the topic for this hour is "Reli-gious Discrimination in Institutions and Services." There will probably becontraception, sterilization, and all those other delightful subjects. How-ever, we will be talking about religious discrimination per se-across theboard, let us say-rather than with respect to any particular type of opera-tion within the institution.By way of introduction, I am Vince Allred of the Office of GeneralCounsel and the gentleman on my right, I am sure you know, is J.P.Darrouzet, attorney-at-law, of Austin, Texas. Actually, Bud should haveallowed us two or three hours for this discussion instead of 45 minutes.However, we have to make the best of our 45 minutes. This is the way wewill work it: I will go on first and give you, hopefully, a few highlights onthe Constitutional aspects, some statutory provisions and, if the remainingtime permits, a bit about implementing regulations. Then J.P. will takeover and in his inimitable manner . . . well, let's put it this way: I'll putyou to sleep and he will wake you up.The subject may be considered under two general aspects.A. Constitutional"Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof. .. .""No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall anyState deprive any person of life, liberty, or property, without due processof law; nor deny to any person within its jurisdiction the equal protectionof the laws ... "2The forgoing Constitutional provisions are couched in terminology ofstate action, and such state action should seem a necessity to bring either*Office of General Counsel, United States Catholic Conference.U.S. CONST. amend. I.2 U.S. CONST. amend. XIV, § 1.19 CATHOLIC LAWYER, AUTUMN 1973provis:on into play. The threshold question therefore is whether such stateaction is present. While we do not know of any definite judicial pronounce-ments relative to state action where religious discrimination or preferenceis alleged, the question has arisen relative to discriminations allegedlyfounded on race, discipline, and sex, in sectarian institutions.1. RaceIn Green v. Connolly3 it was held that tax exemption, under Section501(c)(3),4 should be denied to any nonpublic school which discriminatedon the ground of race relative to its student admission policy.The schools involved were not sectarian institutions. However, theInternal Revenue Service has applied the doctrine to parochial schools ofthe Catholic Church and certification of a racially non-discriminatory pol-icy is necessary for listing a parochial school in the Official Catholic Direc-tory, as you will note from checking the Annual Group Ruling for 1972. 52. DisciplineIn Bright v. Isenbarger, the court refused to interfere with explusionof a student by a Catholic high school, the student alleging that suchexpulsion had been for an insufficient cause and without notice or hearing.It was urged that the school was inbued with state action because of ex-emption from property and income tax, extension to its students of thebenefits of public transportation and the lunch program, and its qualifica-tion under the state's compulsory education law.It is highly interesting that the district court gave serious considera-tion to the effect on sectarian institutions of decisions finding state actionrelative to racial discrimination. The Court of Appeals weighing on thispoint said:The district court observed that only 'state action' is within the prohibitionsof the Fourteenth Amendment and held that the plaintiffs had failed todemonstrate the requisite governmental involvement. In so holding, the dis-trict court reasoned that the 'state action' doctrine was developed in responseto efforts to eliminate racial discrimination. 314 F. Supp. at p. 1392. Accord-ingly, it thought that there might be a less demanding standard of whatconstitutes sufficient state involvement where there are allegations of racialdiscrimination. 314 F. Supp. at 1394. We find it unnecessary to decidewhether state action cases not involving attacks on racial discriminationrequire a more demanding standard of what constitutes sufficient state in-volvement. In this case the state played no role in defendants' expulsion of330 F. Supp. 1150 (D.C. Cir.), aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971).INT. REV. CODE OF 1954, § 501(c)(3).IRS, TENTATIVE CUMULATIVE LIST OF ORGANIZATIONS, (pub. no. 78) (1972).314 F. Supp. 1382 (N.D. Ind. 1970), aff'd, 445 F.2d 412 (7th Cir. 1971).RELIGIOUS DISCRIMINATIONplaintiffs. Furthermore, as the district court pointed out, other, more nebu-lous, relationships between Indiana and this Catholic high school were insuf-ficient to warrant attributing the expulsions of plaintiffs in any way to theactions of the state (Footnote omitted).73. Sex-McClure v. Salvation Army"Mrs. McClure, a former commissioned officer of the Salvation Army,filed an action alleging violation of the Civil Rights Act of 1964, Title VII,Section 703(a)' because her pay had been less than that of male officersdoing similar work. Very briefly, section 703(a) prohibited an employerengaged in commerce from discriminating against any employee "becauseof such individual's race, color, religion, sex, or national origin."'The Court of Appeals found that Title VII was applicable to a religiousorganization such as the Salvation Army. Even though the Salvation Armywas not actually engaged in commerce, its operations, employing as it did3,000 persons, with an annual payroll of seven million dollars, and theextent of its property holdings, would constitute it an "employer" engagedin "industry affecting commerce," so as to bring it within the law."However, it held that Mrs. McClure in her capacity of a commissionedofficer of the Salvation Army held a position equivalent to that of a minis-ter of religion. 2For this reason, it found that Congress had no constitutional power toregulate her relationship to the Salvation Army. It said, in part:[I]n addition to injecting the State into substantive ecclesiastical mat-ters, an investigation and review of such matters of church administrationand government as a minister's salary, his place of assignment and his duty,which involve a person at the heart of any religious organization, could onlyproduce by its coercive effect the very opposite of that separation of churchand State contemplated by the First Amendment. . . .We find that theapplication of the provisions of Title VII to the employment relationshipexisting between The Salvation Army and Mrs. McClure, a church and itsminister would result in an encroachment by the State into an area of reli-gious freedom which it is forbidden to enter by the principles of the freeexercise clause of the First Amendment. 13As will be noted, the Court of Appeals would subject a religious organiza-tion to Title VII in respects other than concerning its relations to its minis-ters of religion, suggesting a constitutional prohibition against any interfer-ence with such relation.445 F.2d at 413.460 F.2d 553 (5th Cir.), cert. denied due to untimely filing, 409 U.S. 896, 1050 (1972).42 U.S.C.A. § 2000(e)-2(a) (relating to equal employment opportunities).Id.42 U.S.C.A. § 2000(e)-(b), referred to in 460 F.2d at 557.,2 460 F.2d at 555, 560.Id. at 560.19 CATHOLIC LAWYER, AUTUMN 1973It is possible that the Equal Economic Opportunity Amendments of1970, enacted since Mrs. McClure filed her action, may have extended theinsulation of religious organizations from application of Title VII in respectto religious affiliation of their employees.Abortion, Sterilization, etc.All of you are familiar with recent litigation on these areas of conflictbetween alleged personal right to the services involved and the right of thechurch-related hospital or other institution to withhold them on the basisof religious orientation. That topic will be discussed at greater length byMr. Darrouzet.B. Statutory1. Civil Rights Act of 1964This Act is, of course, basic on statutory prohibition against discrimi-nation. While enacted mainly with respect to racial discrimination, it spe-cifically includes prohibitions against discrimination on grounds of raceand religion.Title VI and VII are of concern to religious institutions.Section 601 of Title VII" provides that no person shall, on grounds ofrace, color, or national origin, be excluded from participation in, be deniedthe benefits of, or subjected to discrimination under any program or activ-ity receiving federal financial assistance.It will be noted that the grounds of prohibitable discrimination arerace, color, and national origin. There is no mention of religious preferenceor discrimination. Therefore, for instance, a Catholic parochial school maynot be denied such federal benefits as the school lunch program or partici-pation in ESEA because it extends a preference in enrollment to Catholicchildren. Title VI has nothing to do with discrimination or preferencefounded on religion, and is not relevant to the rather specialized presenta-tion which we are making.Title VII, which concerns Equal Employment Opportunity, has beenthe occasion of extensive administrative construction.Section 703(a)(1)' 5 makes it an unlawful employment practice to dis-criminate on the basis of race, color, religion, sex, or national origin.This broad prohibition was modified by Section 702 of the 1964 Act'"to the effect that Title VII does not apply to a religious corporation orsociety with respect to work connected with the carrying on by such corpo-ration or society of its religious activities. The same section provided also" 42 U.S.C.A. § 2000(d).15 42 U.S.C.A. § 2000(e)-2(a).16 42 U.S.C.A. § 2000(e).RELIGIOUS DISCRIMINATIONfor an exemption of educational institutions with respect to the employ-ment of teaching personnel.A section which might be considered as reinforcing the foregoing isSection 703(e)(2),17 also known as the Purcell Amendment, was includedin the 1964 Act providing that "it shall not be an unlawful employmentpractice for a school, college, university, or other educational institution• . .to hire and employ employees of a particular religion if such school,college, university . .. is, in whole or in substantial part, owned, sup-ported, controlled, or managed by a particular religion or by a particularreligious corporation, association, or society .. ."IIt will be noted that there is a conflict between the two foregoingsections. The broad exemption for all religious corporations and societiesin Section 702 was with reference only to their religious activities, whileSection 703(e)(2) having reference only to religiously affiliated schools andcolleges appears applicable to all employees, even if not engaged in reli-gious activities.Thus, the question might arise: While a church might undoubtedlyconsider religious affiliation in selecting its minister of religion, could St.Joseph's church then select an impoverished member of the parish withten children as its janitor, if application for the position was made at thesame time by an affluent atheist who might possess superior technicalqualifications for the job?The Equal Employment Opportunity Act of 197211 amended Section702 to read:This title shall not apply to an employer with respect to . ..a religiouscorporation, association, educational institution, or society, with respect tothe employment of individuals of a particular religion to perform work con-nected with the carrying on by such corporation, association, educationalinstitution, or society of its activities.It will be observed that this exemption is not limited to "religiousactivities." No regulations have been published interpreting this 1972 leg-islation. However, the General Counsel's office of the Equal EmploymentOpportunity Commission has informed us that several unpublished rulingshave upheld the right of a church-related educational institution to makea distinction based on religion, even though the job category does notinvolve religious activities.Likewise, the Purcell Amendment remains intact. Based on the for-egoing, it has been the opinion of the Office of General Counsel that Catho-lic institutions are exempt from the religious discrimination provisions ofTitle VII. We would assume that the courts, on the basis of legislativehistory, would accept this view.'1 42 U.S.C.A. § 2000(e)-2(e)(2).' Id." Pub. L. No. 92-261, 86 Stat. 103 (1972).19 CATHOLIC LAWYER, AUTUMN 1973However, as always, questions remain. One of them is the connotationof the expression, "religious corporation, association, educational institu-tion, or society."20 While we may be certain this would cover a diocese,parish, monastery, or convent, there are categories of organizations wheresuch exemption might be challenged. There is no formal ruling with re-spect to hospitals, but certainly it is arguable that the spirit and intent ofthe amendment would extend to a hospital established under religiousauspices to perform its functions in pursuance with the religious motiva-tion of its founders. For instance, if the religious order assigns a nun to theposition of administrator, there is a strong basis for contending that thisis appropriate under the law, even though there might be other applicantsseeking the position.Of concern also is the recently promulgated Executive Order 11246,designed to enforce equal employment opportunity without regard to race,national origin, or creed, with respect to firms contracting with or federallyassisted by the government. This regulation is particularly directed toareas of "under-utilization" of persons of particular races, national origins,and creeds. Objection has been made by the USCC that this proposedregulation, while motivated by worthy social consideration, is too broad inits application and would interfere with the religious apostolate of church-related institutions.2. The Hill-Burton ActThe Hill-Burton Act 2' contains a provision that any facilities con-structed through assistance under the Act will be made "available to allpersons residing in the territorial area of the applicant."On the basis of the foregoing the Department of Health, Educationand Welfare has issued a regulation prohibiting discrimination againstpatients on the basis of creed.YAs noted, the Act and regulation deal only with admission and treat-ment of patients, not to employment practices.We do not know of any attempt having been made to extend the racialpronouncements of Simkins v. Moses H. Cone Memorial Hospital2 3 to pro-hibit church-affiliated hospitals from extending employment preference onthe basis of religion.2" Id." 42 U.S.C. § 291(c)(e).22 42 C.F.R. § 53.111.323 F.2d 959 (4th Cir. 1962), cert. denied, 376 U.S. 938 (1964).

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Religious Discrimination in Institutions and Services

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