Monday, December 22, 2008

Why the Supreme Court got it wrong in Corp. of Presiding Bishop v. Amos

Over twenty years ago, the LDS Church played a small role in determining how the Establishment Clause meshed with Title VII of the Civil Rights Act of 1964. The case is Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, and it used to appear in a lot of constitutional law texts. I find the case interesting for a couple reasons: first, it's amusing when sources such as Bruce R. McConkie's Mormon Doctrine or the Book of Abraham are cited in a Supreme Court brief. Second, and more importantly, I think the outcome of the case was wrong and that the Mormon Church should have lost.

The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.

Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs' terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.
This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
The terminated employees argued that §702 violated the First Amendment's non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.

The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O'Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:
  • The statute must have a secular purpose.
  • If it has a secular purpose, the statute's principle or primary effect must be one that neither inhibits nor promotes religion.
  • Lastly, the statute must not foster an “excessive government entanglement with religion.”
It seems clear that Title VII had a secular purpose (to prevent employment discrimination), and the statute didn't entangle the government with religion. The real issue was whether the primary effect of §702 was to promote religion.

The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration," the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.

By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.

In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:
A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.
As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn't seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn't hold an LDS temple recommend would result in negligible interference with religion, if any. I can't think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn't support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court's ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn't inhibit the free exercise of religion, this ruling seems indefensible.

Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.

The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:
(1) the manufacturing of garments prior to 1960 and any subsequent changes;
(2) the distribution of garments prior to 1960 and any subsequent changes;
(3) the tax exempt status of Beehive;
(4) the past and current employees who were or are non-members of the Mormon Church;
(5) Beehive's contracts, both past and current, with private commercial enterprises for the production of garments; and
(6) current hiring practices of the defendants' garment and temple clothing manufacturing plants in Mexico and England.
I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process "before the garments were marked with certain religiously significant symbols," which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.

The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive's activities were religious, if only for the aspect of temple clothing production, but it's a close call. We'll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson's claims were granted and appealed, but given the Court's (in my opinion) faulty logic in Amos, perhaps it was better left undecided.

5 comments:

  1. I've spent some time with that decision, and I agree that their logic is somewhat lacking. This is easily explained by the fact that Rex Lee represented the PBO and is a fantastic advocate.

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  2. The CPB has an interest in employing temple recommend holding facilities managers because every employee of the church is theoretically a missionary and representative of the church. Until the Church instituted the member custodian program, the facilities managers on site at LDS Chapels were the first point of contact for investigators of the Church. The CPB had an interest in winning this case for its precedential value well beyond its interest in the Desert Gym. Amos is important to religious freedom and in the attempt to halt governemnt encroachment into religious organizations.

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  3. The court got it right. While it is debatable in this case how much the temple worthiness of Amos was related to the Church's mission at the old desseret gym, the Court was correct that they didn't know and it would be wrong for the courts to have to decide what was and wasn't core to a religion. It is not hard to imagine situations where something would be core to a religion but hard for someone outside of that religion to recognize it as such. The better policy than the court trying to decide is to take the more deferential approach that they did and allow churches to decide with respect to their nonprofit activities.

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  4. I found this post in some random googling and I can tell you that your analysis was very helpful and I agree with your assessment. The Deseret Gym was clearly a secular enterprise of the church and as someone who went there quite often before it closed this was abundantly obvious. Beehive clothing however I think there would be a reasonable argument for allowing such discrimination.

    The best part of reading this was remembering when a member of the Mo Tab took a swing at me at Deseret Gym because I kept blocking his shot in a pickup basketball game.

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  5. The verdict was correct based on what the alternative would have been.

    If the court were to suddenly decide what is, or is not, a core religious belief, it violates the Establishment Clause and Free Exercise of Religion. It would allow government to start making rules on what is, or is not, a religious belief and then pave the way for deciding what those religions may or may not do according to beliefs.

    Although both sides have the argument, the lesser of the two decisions was to remove, as much as possible, government involvement into religions.

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