Employment discrimination at religious institutions can take on a number of forms – not all of them illegal. Many times, the discrimination is rooted in beliefs about observing specific religious doctrines over and above social norms and developments. For instance, a current hot button issue is the refusal to hire homosexual and transgender individuals within many Christian churches.

According to most federal and state laws, religious institutions enjoy certain exemptions to civil rights, anti-discrimination laws. These Constitutionally-upheld exemptions allow religious institutions to remain free of government interference in employment decisions. In fact, some of America’s highest courts have supported this right to the free exercise of religion. The Supreme Court, itself, has cited the importance of allowing religious groups to dictate “who will preach their beliefs, teach their faith and carry out their mission.”

Do Religious Groups Have a ‘Right to Discriminate’?

Some have argued that exemptions in civil rights laws applicable to religious groups essentially grant a right to discriminate which is both unfair and unequal under the law. However, the right of religious groups to hire and fire those of their choosing in accordance with religious doctrine is rooted in the Constitution. These freedoms became a central priority during pre-constitutional deliberations due to the early settlers’ previous experiences with religious restrictions in England.

According to the employment law exemptions, freedom of religion extends into employment practices and decisions for religious institutions, even for jobs beyond the realm of minister, priest or other leadership roles. In fact, the exemptions cover jobs within religious institutions that are in any way connected to a particular religion. Thus, a mosque has the right to hire only Muslim housekeepers or valets. However, the exception does not allow a religious organization to discriminate on the basis of other protected categories such as race, national origin, disability or age.

The reasoning behind such exemptions is clear. For instance, it would be irrational to expect a religious institution to be forced to hire an atheist to a position of authority or otherwise. Yet, public sentiment against religious exemptions is growing, as more and more Americans begin to characterize the right to religious freedom as a right to discriminate unfairly.

The Nuts and Bolts of the Religious Exemption

According to the Equal Employment Opportunity Commission (EEOC), anti-discrimination law provides for two kinds of exemptions for religious institutions: the religious organization exemption and the ministerial exception, which bars Title VII religious discrimination claims brought by members of the clergy.

The religious organization exemption allows groups whose primary focus is religion to practice preferences in hiring employees. This exception, found in Title II of the Civil Rights Act, applies only to institutions whose “purpose and character are primarily religious.” Again, the authority for this exception reaches all the way back to original Constitutional protections of the free exercise of religion and the right of religious organizations to carry out their functions free of government interference and regulation.

Today, more and more pro-religious freedom groups are looking to the power of lawmakers to uphold religious freedoms in the face of opposition from liberal assertions of unlawful discrimination. In fact, America has witnessed a growing surge in religious freedom bills already passed and on the horizon.

Recent Religious Freedom Bills Seek to Protect Free Exercise

Statutory religious freedom begins with the federal Religious Freedom Restoration Act of 1993 (RFRA), which provides a statutory right to religious exemption. This law is is the fundamental source of protection of the free exercise of religion for religious institutions at the federal level. Since the late 1990’s, 19 states have enacted RFRA’s, similar to the federal statute, which govern state and local governments, preventing interference with the freedom of religion at the state level.

Recently, a number of states have pushed for passage of new RFRA’s in Ohio, Idaho, Maine and Arizona. In addition, a RFRA Coalition consisting of 60 religious and civil rights groups works to increase religious freedom legislation across the nation.  The overall purpose of such legislation is to prevent federal, state and local governments from substantially burdening an individual’s free exercise of religion, unless the government has a compelling interest in doing so.

Is Religion Being Unlawfully Used as an Excuse to Discriminate?

Current discussion surrounding the use of religion to exclude certain social groups or individuals often centers on whether religion is in fact being used as an excuse to discriminate and whether such a practice is fair. However, from a legal standpoint, the real question is whether the use of religion to show preference is lawful.

According to the ACLU, the use of religion to discriminate primarily affects women and LGBT negatively. This can take on a number of forms such as schools firing women who become pregnant out of wedlock, pharmacies refusing to grant birth control prescriptions, or businesses within the wedding industry refusing service to same-sex couples. Opponents argue that the right to religious freedom does not go so far as to allow religious institutions to “impose those beliefs on others who do not share them” by discriminating against certain groups.

In the workplace, the ACLU argues that even religiously motivated discrimination can be illegal. It often takes the form of termination from religious schools due to doctrinal infractions such as pregnancy while not married or the use of contraceptives. These issues highlight the precarious juxtaposition between the right to religious freedom and the rights of employees to work in discrimination-free environments upheld in the Civil Rights Act.

The Religious Exemption vs. Religious Discrimination Debate is Likely to Continue

Far from being a resolved issue, the religious exemption versus religious discrimination debate is likely to continue. Even as more states proceed to pass RFRA bills, counter positions abound among civil rights groups who see these laws as the codification of unfair discriminatory action and  among a growing number of American citizens who are beginning to question traditional views of religion as an institution worthy of select treatment under the law.