Bagni 1979

Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious
Organizations
Author(s): Bruce N. Bagni
Source: Columbia Law Review, Vol. 79, No. 8 (Dec., 1979), pp. 1514-1549
Published by: Columbia Law Review Association, Inc.
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Discrimination in the Name of the Lord:
A Critical Evaluation of Discrimination
by Religious Organizations
Bruce N. Bagni*
This country has made a profound national commitment to the principle

of equal opportunity, reflected in federal and state constitutional and statu-
tory provisions designed to root out discrimination on the basis of race, sex,
national origin, and religion.' Although many of these provisions are meant
to apply to private as well as public entities, religious organizations have
advanced strong arguments, based on the first amendment right of free exer-
cise of religion,2 that they should be constitutionally insulated from the
application of antidiscrimination laws. These arguments present problems
of accommodating the potentially inconsistent interests embodied in the two
first amendment religion clauses,3 as well as the substantial question of
whether a religious organization should be excused from the normal opera-
tion of the law. In short, can a religious organization make a legitimate
claim to exemption without undermining free-exercise or establishment val-
ues, and at the same time overcome the compelling governmental interest in
promoting equality?
This Article examines the extent to which religious organizations should
be permitted to practice otherwise illegal discrimination. It first presents the
current judicial approach to free-exercise claims and its application to the
problems of racial discrimination in private religious schools, the denial of
tax-exempt status to racially discriminatory private schools and church
employment relations. After concluding that this approach is not entirely
satisfactory, the Article proposes an alternative analytic framework for
resolving the clash between claims of religious autonomy and principles of
equal opportunity and equal access. Under this analysis, religious organi-
* Assistant Professor of Law, Paul M. Hebert Law Center, Louisiana State University.
B.A. 1966, University of Southern California; J.D., 1974, Indiana University (Indianapolis);
L.L.M., 1979, Columbia University.
This article was written in partial fulfillment of the requirements for the degree of
Doctor of Science of Law in the Faculty of Law, Columbia University.
I wish to thank Professors Kent Greenawalt and Benno Schmidt of Columbia Law School
and Professor Hector Currie of the Paul M. Hebert Law Center, Louisiana State University,
for their helpful comments on earlier drafts.
1. See, e.g., U.S. CONST.amends. XIII, XIV, XV, XIX, XXIV; 42 U.S.C. ?? 1981, 1982,
1983, 1985, 2000a (title II of the Civil Rights Act of 1964, on public accommodations),
2000c (title IV of the Act, on public education), 2000e (title VII of the Act, on equal
employment opportunities) (1976).
2. U.S. CONST.amend. I reads in pertinent part: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof."
3. The unique and ironic aspect of the religion clauses is that in attempting to protect
religious liberty, a court or legislature may conceivably violate establishment clause principles
or religious autonomy. The unavoidable question is whether religious organizations can be
excused from antidiscrimination laws without offending establishment or free-exercise values
in the process. See notes 8-34 and accompanying text infra.
RELIGIOUSORGANIZATIONS 1515
zations can, in some narrow instances, justifiablyengage in discriminatory

practices,because the core, spiritualactivitiesof a church and employment
relationshipsrelatedto those activitiesare the exclusiveconcernof a church.
It is the spiritualor secularnatureof a religiousorganization'sactivitiesand
relationshipsthat dictateits amenabilityto civil regulation.
I. CURRENT APPROACHES TO DISCRIMINATION BY RELIGIOUS INSTITUTIONS
Religious freedom issues have vexed the Supreme Court for years,4
becauseof the seeminglyinconsistentfirst amendmentprinciplesof separation
of church and state and free exercise of religion. An apparent conflict
between these principlesarises where a religiousgroup or a religiouslymoti-
vated person is excused from compliance with secular law or granted a
benefit not otherwise accorded the general public. By granting such an
exemptionor conferringsuch a benefit, the governmenthas extendedpref-
erentialtreatmentsolely on the basis of the group'sreligiousnature or the
person'sconvictions. Some commentatorshave arguedthat such an accom-
modation violates the establishmentclause5 while others have claimed that
it is requiredby the free-exerciseclause.6 The SupremeCourthas embraced
each of these mutuallyinconsistentviews in differentcases.7
The issues of accommodatingreligiousbeliefs and the proper relation-
ship between the free-exerciseand establishmentclauses are squarely pre-
sented when religiousorganizationsclaim exemptionfrom antidiscrimination
laws. For example, a religious organizationmay assert that separationof
the races is a central tenet of its faith, so that its free exercise of religion
will be inhibitedunless it is permittedto practiceotherwiseillegal discrimi-
nation. This claim may meet the counter argument that to excuse the
organizationfrom the law is to accord it preferentialtreatment that is,
in effect, an establishmentof religion.
A. The Balancing Approach to Free-Exercise Claims

Courts have generallyadopted a common approachto cases in which
individualsor groups seek immunityfrom the normal operationof the law
because of religiousscruples.8 The first step in this approachis to determine
4. For an excellent general discussion of the Court's conflicting interpretations of the

religion clauses, see Kurland, The Irrelevance of the Constitution: The Religion Clauses of
the First Amendment and the Supreme Court, 24 VILL. L. REV. 3 (1978-79).
5. See, e.g., P. KURLAND,RELIGIONAND THE LAW passim (1969).
6. See, e.g., W. KATZ, RELIGIONAND AMERICANINSTITUTIONs passim (1964).
7. Compare Wisconsin v. Yoder, 406 U.S. 205 (1972) with Everson v. Board of Educ.,
330 U.S. 1, 15-16 (1947).
8. These "religious exemption" cases are based on the theory that imposing certain civil
obligations upon persons whose religious beliefs purportedly compel noncompliance impinges
their free-exercise rights. Professor Philip Kurland has argued that granting exemptions for
purely religious reasons threatens values protected by the establishment clause. See P.
KURLAND,supra note 5, passim. The Supreme Court, however, has held that accommodations
of religious convictions may be made in certain situations without violating the establishment
1516 COLUMBIA LAW REVIEW [Vol. 79:1514
whetherthe objectionassertedby the person or group seeking exemptionis

really a religiousone.9 This is necessarilythe initial inquiry,for if the belief
that forms the basis for the claim of exemption is not a religious belief,
there is no free-exerciseissue.10 Distinguishingreligious from nonreligious
beliefs, however, is a complex business, particularlywhere the claimant
embracesnew or unorthodoxviews.
The SupremeCourt has defined "religiousbelief" broadly, avoidingan
exclusivelytheistic conceptionof religion.11 A broad and flexible definition
is necessaryin order to assure that full scope is given to the constitutional
protection,but the definitioncannot be so loose as to make the term essen-
tially meaningless.'2 As in most areas of constitutionalinterpretation,how-
ever, precision and certaintyof definitionare elusive goals. The lack of
concretedefinitionalcriteriahas led one commentatorto conclude that any
belief that is "arguablyreligious"should be deemed a religious belief for
purposesof free-exerciseanalysis.'3 Thus, if a religiousorganizationattrib-
utes a scripturalorigin to a discriminatorypolicy, it is arguablyreligious
and should be subjected to further constitutionalscrutiny,'4regardlessof
the credibilityor truthfulnessof the scripturalinterpretation.'5
clause. See Zorach v. Clauson, 343 U.S. 306 (1952) (sustaining a released time program for
religious study during school hours). The Court has even required accommodation in some
cases. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (Amish exempted from compulsory
education laws); Sherbert v. Verner, 374 U.S. 398 (1963) (Sabbatarian exempted from
Saturday work requirement as a condition for receiving unemployment benefits). The theory
underlying these decisions is that accommodating religious beliefs constitutes neither establish-
ment nor sponsorship of religion, but rather an effort "to maintain neutrality-to see that the
action of the government does not operate with hostility to religion." W. KATZ, supra note
6, at 20.
9. Professor Kurland has observed that such an inquiry is unavoidable irrespective of
how one interprets or applies the religion clauses. Kurland, supra note 4, at 24.
10. See Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (en banc),
cert. denied, 434 U.S. 1063 (1978). The plurality opinion in this case illustrates that a judicial
finding that no religious belief is implicated fundamentally alters the theory of adjudication,
because there is no longer a religious issue to balance against any governmental interests.
11. The Court has had to define "religious belief" in the context of draft exemption
claims by conscientious objectors to war. See, e.g., United States v. Seeger, 380 U.S. 163,
166 (1965), where the Court interpreted the congressional language granting conscientious
objector exemptions only to one "who, by reason of his 'religious' belief" opposed war, to
include those beliefs that occupied "a place in the life of its possessor parallel to that filled
by the orthodox belief in God of one who clearly qualifies for the exemption." See also
Welsh v. United States, 398 U.S. 333 (1970), where a plurality of the Court held that a
belief in a "Supreme Being" is not essential to establish conscientious objector status. For an
excellent discussion of these and other conscientious objector cases, see Greenawalt, All or
Nothing at All: The Defeat of Selective Conscientious Objection, 1971 SUP. CT. REv. 31.
12. The outer limits of the concept were tested in a recent federal case in which the
plaintiff contended that consumption of cat food formed the basis of a "personal religious
creed." Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977), afj'd, 589 F.2d 1113 (5th Cir.
1979).
13. See L. TRIBE, AMERICAN CONSTITUTIONALLAW 826-33 (1978). In establishment
clause cases Tribe recommends the adoption of an "arguably nonreligious" standard.
14. See, e.g., Judge Goldberg's concurring opinion in Brown v. Dade Christian Schools,
Inc., 556 F.2d 310, 320 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978), where he argues
that an apparent scriptural basis for the school's segregation policy should have been sufficient
to trigger an adjudication on the merits of the free-exercise defense to the ? 1981 discrimination
suit. This case is discussed at notes 41-71 and accompanying text infra.
15. In United States v. Ballard, 322 U.S. 78 (1944), the Supreme Court held that the
truth or falsity of a defendant's religious representation could not properly be considered by
the trier of fact in a criminal misrepresentation prosecution. The case supports the general
1979] RELIGIOUSORGANIZATIONS 1517
Before the definitionalproblemcan be settled fully, however, a related

questionmust be answered: when a religiousinstitution'spolicy is challenged,
whose beliefs should a court consult in determiningwhether the policy is
based on religious beliefs? The classic religious exemptioncases involved
situationsin which an individualratherthan an institutionasserteda personal
religious objectionto the imposition and enforcementof civil obligations'
Establishingwhetheran individualholds a particularreligiousbelief can be
a far easier task than determiningthe existence of an institutionalreligion-
based policy. But where an institutionaldecision is challengedan institu-
tional policy must be identified.'7
When an institutionseeks an exemptionfrom the normal operationof
secular law, courts should not assume, however, that the religiousbelief
requirementcan be satisfiedonly by institutionallypromulgatedand adopted
policy or by a virtual consensus among congregationmembersthat a par-
ticularpolicy has a religiousbasis.'8 Such an assumptionaccordsinsufficient
respectto the minorityreligiousbeliefs of individualchurchmembers.19For
example,if a religiousinstitutionsuch as a school practicessegregation,the
presence of minority or even isolated religion-basedviews on segregation
should entitle the school to an adjudicationof its members' free-exercise
claims.20 While the numberof memberswho believe a discriminatorypolicy
to be of religiousoriginshould thus have no effect on the decision to review
a religiouslibertyclaim on its merits,21it might affect the second step in the
court's analysis,which is to determinethe centralityof the religious belief
to the exercise of the religion. A free-exerciseclaim might be considered
stronger,or the beliefs in questionmore central,if the views are more uni-
versallyaccepted.22
Under the balancing of interests analysis used in religious exemption
cases, prevalenceof belief will inevitablyplay a significantrole in the ab-
proposition that governmental inquiries into the truthfulness of one's religious beliefs are
constitutionally impermissible; inquiries into the holder of a beliefs sincerity, however,
are consistent with free-exercise principles.
16. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398
(1963).
17. See, e.g., Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977),
cert. denied, 434 U.S. 1063 (1978).
18. The plurality in Dade Christian Schools erroneously made this assumption. See notes
47-50 and accompanying text infra.
19. The error of the assumption is magnified when a church is congregational and
nonhierarchical, because in such situations members of individual congregations rather than
hierarchical bodies pass either directly or indirectly upon matters of dogma. 556 F.2d at 325
(Roney, J., dissenting).
20. Judge Goldberg, concurring in Dade Christian Schools, characterized the issue as one
of standing. Institutions certainly possess the requisite standing to raise the constitutional
rights of their members, including claims of right urged by a minority of the membership,
which might otherwise never be considered by a court. See Runyon v. McCrary, 427 U.S.
160 (1976). It is difficult to imagine how the parents of children attending private school
could ever raise constitutional objections to racial integration except through the auspices of
the school.
21. This view is suggested by Judge Goldberg's concurring opinion in Dade Christian
Schools: "If some students disagree with the rights that the school espouses on behalf of
others, the balance of substantive interests might be affected, but the right ever to litigate the
interests should not be foreclosed." 556 F.2d at 315 n.2. See also id. at 319 nn.8 & 9.
22. Id.
1518 COLUMBIALAW REVIEW [Vol. 79:1514
sence of a reasonablyclear institutionallyheld religioustenet. First, a court

mightinferthat a belief held by only a smallpercentageof the congregationis
not really centralto the exerciseof the religionin question. Second, a court
might be less inclined to uphold a free-exerciseclaim where the impact on
the spiritual lives of the congregationas a whole would be de minimis.
Conversely,where there is virtual unanimityof conviction among the con-
gregation,a court may be more favorably disposed toward a free-exercise
argument,because the claim of centralityis likely to be more plausibleand
the impacton the congregationas a whole perceivedas real and substantial.
The purpose of the centralityinquiry is to determine the extent to
which the governmentalpracticeor rule objectedto impingesupon free and
full exerciseof the objector'sreligion. The more centralthe belief is to the
religion, the greaterthe degree of impairedreligiousliberty. For example,
m Wisconsin v. Yoder,23 the SupremeCourt exemptedAmish childrenover
fourteenfrom the state's compulsoryschool attendancelaw. This decision
turned largely upon the Court's conviction that maintainingAmish culture
by educatingchildrenover the age of fourteen exclusivelywithin the Amish
communitywas crucialto the exercise of the Amish religion. The lifestyle
was found to be a centraltenet of the faith. The same resultwas reachedin
People v. Woody,24where the CaliforniaSupremeCourt held that peyote
smokingwas a centralpracticeof the Native AmericanChurch,thus exempt-
ing peyote-usingNavaho Indians from criminalsanctions.
In probingthe centralityissue, courts are essentiallyseeking to ascer-
tain what the religion would look like without the challenged practice
(polygamy, peyote smoking, segregation,etc.). As Professor Tribe has
noted, clearlyry a conflict which threatensthe very survivalof the religion
or the core values of a faith poses more seriousfree exercise problemsthan
does a conflict which merely inconveniencesthe faithful."25 Thus, under
the centralityanalysiscourts must ascertainthe directnessof the impairment
of free-exerciserights. This inquiryshould not be confused,however, with
cases such as Braunfeldv. Brown,26where the Court focused on the direct-
ness of the impact, or burden on religious practices. In Braunfeld,Chief
JusticeWarren,writingfor a plurality,held that althougha Sunday closing
law placed a substantialeconomic burden on Jewish retailers, the burden
was neverthelessan indirectconsequenceof a law with a legitimatesecular
purpose. The Chief Justice emphasizedthat the statute did not make any
religiouspracticesunlawful;in regulatinga secularactivityit simplyoperated
so as to make the practiceof the Jewish merchant'sreligiousbeliefs more
expensive.27 The Court was not so much concernedwith the centralityof
23. 406 U.S. 205 (1972).

24. 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
25. L. TRIBE, supra note 13, at 862.
26. 366 U.S. 599 (1961).
27. Id. at 605. This analysis is of doubtful validity in light of Sherbert v. Verner, 374
U.S. 398 (1963), where the Court held that the conditioning of unemployment benefits on
one's willingness to work Saturdays impermissibly burdened the free exercise rights of a
Sabbatarian. In Braunfeld the Court made a tortured attempt at characterizing the Sunday
Saturdayrest to the practice of OrthodoxJudaismas it was with the effect

of the Sundayclosing law on that practice.
The third element of the free-exercise analysis involves determining
the sincerity of the holder's religious beliefs.28 The sincerity requirement
is an obvious effort to deter fraudulentreligious claims. The fear is that
the unscrupulouswould otherwisetry to use "religiousbelief" as a subterfuge
for engagingin impermissibleconduct not genuinelymotivatedby religious
conscience.
Once a reviewing court has evaluated the objection in question in
terms of its religiousness,centrality,and sincerity,it must identifythe nature
and magnitudeof competinggovernmentalinterestsin imposingthe particu-
lar regulationor obligationupon the recalcitrantindividualor group.29 Ad-
ditionally,the court must ascertainwhether governmentobjectives can be
achievedby means less restrictiveof the free-exerciserights of the objecting
individualor organization.-0
Finally, a balance must be struck between religious and governmental
interests. Under the prevailingtest a religiouslibertyclaim is "overbalanced
only by 'those governmentalinterestsof the highest importanceand those
not otherwise served.'"d31 Thus, to overcome a defense based on free
exercisethe opposingpartymust establishthe existenceof a compellingstate
interestand the absenceof a less restrictivemeansof achievingthat interest.32
In additionto identifyingthe religiousbelief or practice allegedlythreatened
by compliancewith the civil law, the reviewingcourt must determinethe
centralityof the belief or practice to the religion and the extent to which
it is affectedby the state regulation.83As a pragmaticmatter,however,the
most significantvariablesin this balance will be the nature and strengthof
the governmentalinterest and the extent to which it can still be realized
if a religiousexemptionis granted.34
closing law as a less direct burden than the unemployment compensation disqualification rule.
Mr. Justice Stewart, concurring in the result, concluded that Sherbert could not stand con-
sistently with Braunfeld. He argued that the impact in Sherbert was "considerably less
onerous" because Braunfeld involved a criminal statute with the consequent specter of criminal
sanctions as opposed to the potential loss of a mere twenty-two weeks of unemployment
compensation. 374 U.S. at 417-18 (emphasis added).
28. This inquiry should not be confused with determining the truthfulness of the religious
belief. The sincerity determination focuses on whether the alleged belief is actually a part
of the religion, not whether it is scripturally accurate.
29. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398
(1963).
30. See note 29 supra.
31. Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 321 (5th Cir. 1977) (en banc)
(quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)), cert. denied, 434 U.S. 1063 (1978).
32. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963). For an excellent discussion of
least restrictive alternative analysis see L. TRIBE, supra note 13, at 846-59.
33. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).
34. In a nondiscrimination case, for example, where the competing governmental interest
is weaker and/or less restrictive alternatives are possible, the presence of membership con-
sensus or near consensus about the religious origin of a belief could conceivably influence
the outcome. See notes 20 & 21 and accompanying text supra.
B. The Balancing Analysis Applied-Racially DiscriminatorySectarian

Schools
1. Liability Under 42 U.S.C. ?1981. In Runyon v. McCrary,35the
SupremeCourt held that 42 U.S.C. ?198136 prohibitsprivate nonsectarian
schools that offer their services to the general public from excludingother-
wise qualifiedchildrenbecause of their race.7 The Court, however, took
pains to limit the reach of its holding to racially discriminatoryadmissions
policies of nonsectarianschools motivated by purely secular, nonreligious
considerations. Noting the absence in the record of any evidence that the
schools practicedracial exclusion on religious grounds,the Court expressly
reservedjudgmenton whether section 1981 would apply with equal force
to a school whose policy of exclusionis based on religiousconviction.88
The petitioning schools argued that the application of section 1981
would contraveneparents' and children'srights of free association. The
Court rathersummarilydismissedthe freedom-of-associationclaim, empha-
sizingthe quasi-public,commercial,and nonsectariannatureof the schools.39
35. 427 U.S. 160 (1976).

36. 42 U.S.C. ? 1981 (1976) providesthat:
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
37. The Court viewed private sector racial discrimination as a vestige of slavery, and
thus within Congress's reach under the enabling clause of the thirteenth amendment. 427
U.S. at 170. Private school attendance was viewed as a contractual undertaking within the
protections of ? 1981. Id. at 172.
There was some disagreement on the Court over the scope of ? 1981 liability for private
schools. The majority emphasized the quasi-public commercial nature of the challenged
schools, and thus did not consider the "private club" exemption in ? 201 (e) of the Civil
Rights Act of 1964, 42 U.S.C. ? 2000a(e) (1976), any obstacle to ? 1981 relief. Id. at
172-73 & n.10. The majority opinion does not necessarily mean, however, that only quasi-
public private schools may be subject to ? 1981 liability.
Justice Powell wrote a concurring opinion in which he concluded that ? 1981 should be
limited to private schools of a nonexclusive nature, because freedom of association would
shield truly exclusive private schools. Id. at 187-88. See note 39 infra.
38. The Court's efforts to narrow the reach of its opinion are illustrated by the precise
way it framed the issue: "whether ? 1981 prohibits private, commercially operated, non-
sectarian schools from denying admission to prospective students because they are Negroes,
and, if so, whether that federal law is constitutional as so applied." Id. at 168.
39. The schools advertised in the yellow pages and used mass mailings to attract students.
Stressing this public aspect, Justice Stewart, writing for the majority, conceded that parents
have a first amendment right to send their children to schools that preach the virtues of
segregation, but he rejected the notion that the schools' actual exclusionary practices were
protected by associational principles. Id. at 176. His position in essence was that schools
remain free to teach and advocate segregation, but not to practice it.
Justice Powell's efforts to limit the scope of ? 1981 to nonexclusive, quasi-public schools
were more sensitive to associational rights. In his concurring opinion he proposed to limit
the scope of ? 1981 to those contracts or offers to enter contracts of a nonexclusive or
quasi-public nature. He reasoned that where the contract is the foundation of a close associa-
tion, such as that between an employer and a private tutor, babysitter, or housekeeper, the
selective choice made by the offeror reflects a "purpose of exclusiveness" other than the
desire to bar members of the black race, thus invoking long respected associational rights.
Id. at 187-88.
While it is unclear whether the remainder of the majority read such a limitation into
?1981, Justice Powell found the absence of a truly private contractual tender in Runyon
Associationalfreedomclaims cannot be so easily dismissed,however, in the

context of a religious institution. The freedom of a church to control its
membershipis more fundamentalthan the freedom of nonreligiousgroups
to control their membership.40This weightierfreedomcan be explainedas
a recognitionof churchmembers'associationalrights or as an acknowledg-
ment of a church'sautonomyin mattersrelating to governanceand mem-
bership.
When a church venturesinto the secular arena, however, the strength
of its freedom-of-associationclaim for immunityfrom civil liability is likely
to diminishinverselyto the secularityof the activity. Thus, sectarianschools
are somewhereon a continuum,the extremesof which are the nonreligious
school in Runyonand churchmembershippolicy. Placing the churchschool
on the continuumis a sensitive issue that has given courts difficulty,as
illustratedby the divergentopinionshanded down by the Court of Appeals
for the Fifth Circuit in Brown v. Dade Christian Schools, Inc.41
In this case, parentsbroughtsuit under section 1981 against a church-
operated school42 after being informed that their children would not be
decisive in his associational freedom analysis. Justice Powell admitted, however, that it may
be difficult to distinguish the truly private from the quasi-public. He suggested that the key
is to identify those contractual choices "that are 'private' in the sense that they are not part
of a commercial relationship offered generally or widely, and that reflect the selectivity
exercised by an individual entering into a personal relationship . . . ." Id. at 189. Thus,
an institution apparently shows a sufficient "plan or purpose of exclusiveness" when it 1) does
not solicit membership from the public-at-large, and 2) employs selective criteria in addition
to race. According to this definition, a nonadvertising secular school organized by a small
group of "concerned" parents with an admissions policy excluding nonbelievers, Jews,
orientals, chicanos, and blacks may be exempt from ? 1981 liability.
Justice Powell's approach is similar to suggestions by some courts and commentators
that the "private club" exemption of title II of the 1964 Civil Rights Act should be construed
as evidence of congressional intent to insulate the discriminatory admission practices of truly
private associations. See, e.g., Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp.
1182 (D. Conn. 1974); Note, The Desegregation of Private Schools: Is Section 1981 the
Answer?, 48 N.Y.U.L. Rev. 1147, 1159 (1973). If the private club, or exclusive contract
rationale is applicable to private schools as well as other organizations, as Justice Powell's
reasoning seems to indicate, then a court may avoid the religious free-exercise issue if it can
characterize a discriminatory sectarian school as truly exclusive.
A possible irony in Justice Powell's efforts to preserve the truly private organization
may be that while a private sectarian school satisfies his exclusivity test, an evangelical church
may not. What if a racially exclusionary church is obligated by its evangelical spiritual
charter to reach out into the community for new members and converts? Such an offer to
become a member of a church would not normally be regarded as contractual in nature.
Some churches, however, require as a condition of membership contributions of money or
assignment of all worldly goods to the church. It can reasonably be asserted that conditioning
membership on contributions of goods or funds has definite contractual overtones. Would a
black excluded by such an evangelical church therefore have a ? 1981 action against the
church? Such a church would seem, in theory, unable to satisfy the private organization
criteria articulated by Justice Powell, because its appeal to the general public, excepting
blacks, would presumably eliminate any possiblity of true exclusivity. Such a result, however,
is insensitive to principles of religious freedom, and surely was not intended by Justice Powell.
It is inconceivable that a court would order a church to admit as a member a victim of
racial discrimination in contravention of its membership policy. The civil state simply may
not dictate church membership policy. See notes 141-47 and accompanying text infra.
40. See the discussion of the fundamental place of church membership in the free-
exercise right, notes 141-47 and accompanying text infra.
41. 556 F.2d 310 (5th Cir. 1977) (en banc), cert. denied, 434 U.S. 1063 (1978).
42. Although Runyon v. McCrary had yet to be decided at the time of the trial of this
case, the district court held that ? 1981 reached racial discrimination practiced by private
schools. During the pendency of the appeal, the Supreme Court decided Runyon, thus
validating the district court's interpretation.
admittedsolely because they were black. The Fifth Circuit affirmedthe

districtcourt'sjudgmentawardingdamagesto the parents and enjoiningthe
school from pursuing discriminatoryadmissions policies. There was no
majority opinion, however; the result was characterizedby three distinct
approachesto the free-exerciseanalysis.
In consideringwhetherthe school's defense was actuallybased upon a
religious belief, Judge Hill, writing for the plurality, concluded that the
school failed to raise a cognizablereligious freedom claim, thus effectively
eliminatingfree exerciseas an issue.43 In reachingthis conclusionthe plural-
ity relied upon the district court's findingsthat neither the church nor the
school literatureindicated that racial discriminationin admissionswas an
expressionof religious conviction;44 that the church pastor, who was also
the school president,indicated that he would change the exclusionaryad-
missions policy according to the congregation'sdirection;45 and that the
principaland other school officerswere vague concerningthe genesis and
basis of the discriminatorypolicy. In light of this evidence, the district
court had specifically found that the admissions policy was adopted in
response to the growing tide of desegregation,and not to implement the
religiousdictatesof the church.46
Besides this evidentiarybasis for the findingsthat the discriminationdid
not stem from an exerciseof religiousconviction,the pluralityalso restedits
conclusionon the absenceof a clear institutionalreligiouspolicy of segrega-
tion. Reasoningthat because the decision to exclude black childrenwas an
institutionalchoice exercisedby the school and the church as an indivisible
unit ratherthan by individualmembers,many of whom were uncertainas
to the religiousbasis for such segregation,only institutionallypromulgated
beliefs should be consulted.47 The pluralityfeared that the alternativeof
consultingthe religiousbeliefs of individualmemberswould permita religious
school to select at will whichever of "its members'potentially conflicting
beliefs it wished to assert at any given time."48 By insistingthat there be a
clearlydefinedinstitutionalpolicy before a religiousorganization'sfree-exer-
cise claim may be adjudicated.49 the pluralitydid not give the religiousviews
and free-exerciserights of individualchurchmemberstheir due respect.50
43. The opinion essentially adopted the approach and conclusions of the district court,
which had decided that the school's exclusionary policy was not a religion-based one.
44. The plurality reasoned that "the absence of references to school segregation in written
literature stating the church's beliefs, distributed to members of the church and the public
by leaders of the church and administrators of the school, is strong evidence that school
segregation is not the exercise of religion." 556 F.2d at 312.
45. The plurality commented that this fact comportede] with the social or political nature
of the exclusionary policy." Id. In his dissenting opinion, Judge Roney pointed out that
the trial court could have found this (though it did not) to be the exercise of religion by a
congregationally organized church in which every believer is his own priest. Id. at 325.
46. See id. at 313.
47. Id.
48. Id.
49. Both the plurality and Judge Goldberg, specially concurring, stated that whether a
religious institution qua institution has free-exercise rights is a difficult question. Kedroff v.
St. Nicholas Cathedral, 344 U.S. 94 (1952), and its progeny suggest a conclusive affirmative
answer. See also L. TRIBE, supra note 13, at 876.
50. See notes 18-20 and accompanying text supra.
1979] RELIGIOUS ORGANIZATIONS 1523
Having found no religiousbelief, the pluralityhad no need to continue

the free-exerciseanalysis. Thus, the judges were free to follow Runyon v.
McCrarywithoutbalancingfirst and thirteenthamendmentvalues.
JudgeGoldbergwrote a separateopinion, and althoughhe concurredin
the result, he emphaticallydisagreedwith the plurality'sapproach to the
case. He characterizedtheir "constrictive"definitionof religiousbelief as an
"egregiousdeparturefrom the fundamentalprecept of unswervingreligious
tolerance that underlies the Constitution'sreligion clauses." 1 He argued
instead that religious belief and exercise should be defined expansivelyto
avoid undulyforeclosingadjudicationof the merits of religiousliberty claims
at the expenseof protectingnew or unorthodoxbeliefs.52 He furtheropined
that the pluralityerred in the factual and legal conclusionsit drew from the
record. He argued that a fuller reading of the record showed that the
school's officershad expressedreligion-basedviews on segregatededucation.
For example, the principalhad testifiedthat his involvementin the enroll-
ment of blacks would constitutedisobedienceto the Bible. There was also
evidence that the school president,who doubled as the church pastor, had
told the congregationthat his objectionsto integratingthe school were based
upon Biblical authority.53 In Judge Goldberg'sjudgment,the stated posi-
tions of these two officersstandingalone shouldhave entitledthe school to a
hearingon the meritsof its free-exercisedefense.54In any event,he contended,
the record establishedthat the school's board of directorshad adopted an
institutionalpolicy on racial segregationbased on scripturalinterpretation.55
JudgeGoldberg'sconclusionthat the discriminatorypolicy was based on
religious belief comports with the "arguablyreligious" definition of free-
exercise rights.56 Under this standard,referencesby the school's board of
directorsto a scripturalbasis for the racial segregationpolicy should have
been dispositiveof the policy's religiousnature. Judge Goldberg'sapproach
to the threshold free-exercise issue is therefore more protective of first
amendmentvalues than the plurality'sfactual second-guessingas to the
truthfulnessof the school officers'religiousassertions.
Judge Goldberg also differed with the plurality's treatment of the
institutionalbasis of the belief. Ratherthan insistingon a corporatepolicy,
Judge Goldbergarguedthat whetheror not the institutionitself had adopted
51. 566 F.2d at 314 (Goldberg, J., concurring).

52. Judge Goldberg observed that:
The plurality's focus on the lack of [well-charted dogmas and creeds] raises the possi-
bility that first amendment protection would be withheld from those who need it most.
Indeed, it is at least unclear whether the plurality would accord first amendment
protection to a modem Martin Luther or Roger Williams.
Id. at 317.
53. Id. at 318-19.
54. Goldberg suggested that if only the principal's or pastor-president's individual views
were in issue, the school's free-exercise defense might be weakened, perhaps tipping the scales
in favor of the governmental interest in racial desegregation. But he also explicitly stated that
the absence of widespread membership concurrence in the belief did not free the court from
its duty to consider the religious liberty claim on its merits. -Id. at 319 nn.8 & 9.
55. Id. at 320.
56. See notes 13 & 14 and accompanying text supra.
a religious policy, the school had the requisitestanding to raise the free-
exerciseclaims of individualstudents,parents,teachers,and membersof the
New TestamentBaptist Church. He reasonedthat if the school were not
permittedto raise these claims on behalf of the individuals,they would be
lost forever.57 He concededthat the pluralityapproachof focusingon insti-
tutionalpolicy would have been valid if the court had been concernedonly
with the religion-basedviews of the religiouscorporationqua corporateentity,
ratherthan the religiousorganizationas a compositeof individualworshipers.
Because he concluded that the discriminatoryadmissions policy was
based on religiousconviction,Judge Goldbergwas compelledto considerthe
remainingfactors in the free-exerciseanalysis. Although he assumed the
sincerityof the churchmembers'and school officials'beliefs in segregation,
Judge Goldbergconcludedthat the belief was not centralto their faith. He
found the practiceof racial segregationto be a "minortenet" of the religion,
which, if removedfrom churchand school life, would neitherjeopardizethe
continued existence of the church nor threaten its members' chances of
achievingsalvation.58 The church and the school remainedfree to espouse
their views on segregation and miscegenation,and students and parents
remainedfree to believe or practicethem.59
Applyingthe final step in the free-exerciseanalysis,Goldberghad little
difficultyresolvingthat the "veryminor"religiouspracticeof racial segrega-
tion was outweighed by the government's interest in promoting racial
equality.60 He felt compelled to reach this result because of the constitu-
tional nature and strength of the governmentinterest underlying section
1981. This interest was derivedfrom the affirmativemandate of the thir-
teenth amendment,whereasin previousfree-exercisecases nonconstitutional
state interestshad been asserted.61 Remarkingthat "[a] more compelling
governmentalinteresthas perhapsnever been enlistedin oppositionto a free
exercise claim,"62 Judge Goldbergconcluded that "[w]hen the government
interestis so strong and the impact upon the religionso slight, the religious
practicemust yield."163
57. Goldberg cited Runyon for the proposition that a school has standing to assert the
claims of its patrons. 556 F.2d at 315-16 nn.1 & 2. There is certainly nothing unique about
this view. The Supreme Court has long held that organizations generally have standing to
assert their members' claims. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
58. Judge Goldberg writes: "The sole basis of Dade Christian's claim is therefore the
'very minor' religious practice of preserving racial segregation in activities that constitute
'socialization.' " 556 F.2d at 322.
59. Judge Goldberg found that a major concern of the church and school was the fear
that integration of the school would encourage interracial marriage. He contended, however,
that the imposition of ? 1981 liability on the school was not tantamount to imposing inter-
racial marriages on unwilling students and parents. Id.
60. He also rejected the school's associational freedom claim, noting that the facts of
the case "simply [did] not implicate the interests of a church in maintaining the intimacy
of its activities." Id.
61. Id. at 322-23.
62. Id. at 323.
63. Id. at 324. Judge Goldberg did not indicate how the case should be decided if the
practice of segregation were found central to the religion. If the result, in his view, must be
the same in either case, why must he go through the motions of distinguishing a central from
The dissenting opinion in Dade ChristianSchools, written by Judge

,Roney and joined by five members of the court, also took issue with the
plurality'scharacterizationof religion and religious belief. Judge Roney
began his analysis by defininga religious belief as a sincere belief "based
on a theory of 'man's nature or his place in the Universe' . . . , which is not
merely a personal preferencebut has an institutionalquality about it." 64
He then concludedthat the church'sbelief in racial segregationsatisfiedeach
of these prerequisites. First,it was based on Biblicalinterpretation. Second,
it had an "institutionalquality"in that the congregationhad voted for the
exclusionarypolicy.65 In this connection,the opinionrejectedthe plurality's
conclusionthat the absenceof a writtenpolicy of segregationprecludedfind-
ing an institutionalreligious belief; he asserted that nonwrittenbeliefs are
entitledto the same constitutionalprotectionas those committedto writing.
The dissent's point is apt, for limiting free-exercise rights to religious
organizationswhose beliefs have been expressedin writing would result in
discriminationagainst small or new groups that have yet to articulate or
memorializetheirbeliefs fully.
The sincerity requirement,contended Judge Roney, had also been
amply satisfied. He conceded that "the founding,or even expansion,of a
school to accommodatewhite students seeking to evade a court order in-
creasing the degree of desegregationin the public schools may well call
sincerityinto question,"but found that the record disclosedno such animus
in this case, because the school was merely applyingits establisheddoctrine
in the face of changingsocial circumstances.66
Judge Roney's dissentingopinion, however, is not so easily deciphered
on the centralityquestion. The opinion discusses the directnessof the im-
pingement of the New Testament Baptist Church's free-exercise rights
without mentioningcentrality.67 While ascertainingthe directness of im-
a noncentral tenet and balancing the religious and governmental interests? Balancing implies
a serious consideration of both individual and state claims, rather than a mere charade. In
any event, the Goldberg opinion conveys the impression that centrality is really what counts
most in the calculation.
64. Id. at 324. Judge Goldberg took great pains to explain away Judge Roney's apparently
limiting notion of an "institutional quality": "Because in another part of his opinion Judge
Roney makes clear his understanding-with which I fully concur-that discriminating among
religions on the basis of their manner of deriving or expressing their views is unconstitutional,
I believe Judge Roney's 'institutional quality' remark should be given an extremely broad
reading." Id. at 317-18.
65. The dissenters sharply disagreed with the plurality's notion that since the policy of
exclusion was the result of a congregational balloting it could not be religiously" because it
was subject to repeal through the same mechanism Such a conclusion, argued Roney,
severely circumscribes the free-exercise rights of congregational churches, and discriminates
against them in violation of the establishment clause. Moreover, it "ignores the doctrine that
questions of church government are beyond the scope of judicial review." Id. at 325.
66. Id.
67. He found a persuasive analogue in Wisconsin v. Yoder:
The policy of segregation in the school springs from a belief that the Bible commands
separation of the races and school segregation is necessary to deter intermarriage.
The connection directly parallels the interest of the Amish parents in Yoder, who kept
their children out of public high schools to avoid 'worldly influences' which would
interfere with a child's integration into the Amish faith community.
Id. at 326.
pairment of free-exercise rights is the function of centrality analysis,68 Judge

Roney appeared to be referring to the directness of impact that concerned
the Supreme Court in Braunfeld v. Brown,69 rather than the concept of
directness relevant to centrality analysis.
Although recognizing the constitutional underpinnings of section 1981,
and thus the importance of the government interest at stake, Judge Roney
was nevertheless unable to complete the balancing analysis. He concluded
that the record was insufficient to resolve several questions important to the
balancing of the conflicting constitutional claims, requiring a remand.70
Judge Coleman, who also joined in the reasoning of Judge Roney's
dissent, would have ruled in favor of the school. He characterized the
school as "a direct, intimate adjunct of church activities, conducted in the
house of worship" rather than as a commercial enterprises Given this
perceived unitary nature of church and school, Judge Coleman argued that
the court-ordered admission of a student would breach the wall of separation
between church and state. He did not engage in any explicit balancing;
rather, he simply stated that such a governmental intrusion into the activities
of a church violates principles of free exercise.
As illustrated by the differing results reached by the plurality and the
dissenting and concurring judges in Dade Christian Schools, the balancing
of interests free-exercise analysis provides little definite guidance for racially
discriminatory church schools seeking to avoid section 1981 liability. It is
especially uncertain when, if ever, a purported scriptural basis for a discrim-
inatory policy can sufficiently justify the practice on religious freedom
grounds. Although the plurality in Dade Christian Schools failed to find a
religious motivation for the discrimination despite school and church officials'
scriptural references, another federal court recently upheld a religious schools
racial discrimination solely because it was allegedly based on Biblical
commands.
In Fiedler v. MarumscoBaptist Church,72a parent sued a fundamen-
talist Christian school under section 1981 when it expelled his daughter for
having an alleged romantic relationship with a black male classmate. The
school principal, who was also the church pastor, claimed that this opposi-
tion to interracial relationships was based on interpretation of scripture.
The plaintiff contended that the principal-pastor's policy against such rela-
tionships was nothing more than an expression of his personal prejudices.
The court, apparently adopting the "arguably religious" test for identifying

69. See notes 26 & 27 and accompanying text supra. Judge Roney appeared to assume
the centrality of the practice of racial segregation to the New Testament Baptist Church or to
consider such an inquiry irrelevant in light of the direct impact of ? 1981 enforcement upon
the exercise of the faith. His reliance on Yoder seems to be misplaced because there the
centrality of Amish customs to the Amish faith was pivotal in the disposition of the case.
70. 556 F.2d at 326.
71. Id.
72. 48 U.S.L.W. 2149 (E.D. Va. Aug. 22, 1979).
religiousbeliefs,73accepted the principal-pastor'sassertionat face value by

presumingthat the policy was a sincerelyheld religiousbelief central to the
school's religiousdoctrines. The court concluded,without engagingin any
explicit considerationof countervailinggovernmentinterests, that granting
relief would substantiallyimpair the school's free exercise of religion.
2. Tax-ExemptStatus. In addition to potential liability under the
civil rightslaws, religiousschools that discriminatemay be faced with adverse
tax consequences. In July 1970 the Internal Revenue Service announced
that it wouldno longergranttax-exemptstatusto privateschoolswith racially
discriminatoryadmissions policies and that contributionsto such schools
would no longerbe considereddeductiblebecause such schools could not be
deemed "charitable." 74 This ruling was upheld by a three-judgedistrict
court in Green v. Connally,75a decisionsummarilyaffirmedby the Supreme
Court.78
The court'sdecisionwas based on the principlethat tax benefitsshould
be conferredonly upon those whose operationsare consistentwith declared
federal public policy.77 Private schools that discriminateon the basis of
race were found to violate the federal policy against racially segregated
education.
Although the schools involved in Green were nonsectarian,supporters
of the schools contendedthat the IRS rulingwould logicallyprecludegranting
tax-exemptstatus to privatereligiousschools with discriminatoryadmissions
policies. While the court implicitly recognizedthe constitutionalright of
privatereligiousschools to limit enrollmentto membersof their own faith,78
it declined to considerwhether a private religious school that discriminates

74. Internal Revenue Service News Release, July 10, 1970, [1970] 7 STAND. FED. TAX REP.
(CCH) ? 6790; Internal Revenue Service News Release, July 19, 1970, [1970] 7 STAND. FPn.
TAX REP. (CCH) ? 6814. This ruling was based on an interpretation of ?? 501 (c) (3)
(charitable organizations exempt from federal taxation) and 170 (charitable deductions) of
the Internal Revenue Code. Specifically, the IRS construed "charitable" in the "common
law sense" and resolved that private racially discriminatory schools are not charitable in that
sense. Green v. Connally, 330 F. Supp. 1150, 1156 (D.D.C. 1971).
75. 330 F. Supp. 1150 (D.D.C. 1971).
76. Coit v. Green, 404 U.S. 997 (1971).
77. Judge Leventhal, writing for the district court, stated:
Taking into account the sensitive and crucial nature of the issue of racially dis-
criminatory schools and the existence, as we shall relate, of a federal policy derived
from Congressional enactment as well as the Constitution itself, it is our con-
clusion that the ultimate criterion for determination whether such schools are eligible
under the "charitable" organization provisions of the Code rests not on a common
law referent but on that of Federal policy.
330 F. Supp. at 1161. The court acknowledged that granting exemptions to institutions
practicing racial discrimination would raise serious constitutional questions: "[T]ax exemp-
tions and deductions certainly constitute a Federal Government benefit and support. While
that support is indirect, and is in the nature of a matching grant rather than an uncon-
ditional grant, it would be difficult indeed to establish that such support can be provided
consistently with the Constitution." Id. at 1164-65.
78. "The special constitutional provisions ensuring freedom of religion also ensure
freedom of religious schools, with policies restricted in furtherance of religious purpose.
Section 503 of the Model Anti-Discrimination Act . . . permits religious educational
institutions 'to limit admission or give preference to applicants of the same religion."' Id.
at 1169 (citation omitted).
for religiousreasons should be grantedexempt status. The court intimated,

however, that the "law may prohibit an individual from taking certain
actions even though his religion commands or prescribesthem."179 Thus,
the court may have perceivedthe governmentalinterest in preventingracial
discriminationas sufficientlycompellingto overridecompetingfree-exercise
claimsinterposedby religiousschools.80
In 1979, the Internal Revenue Service adopted new guidelines for
determiningwhether private schools operate on a racially discriminatory
basis.81 These guidelinesapplyto all privateprimaryand secondaryschools,
includingchurch-operatedand church-relatedschools. They are specifically
designedto ferretout those schools that, despitepurportednondiscriminatory
policies, actuallyoperatein a discriminatorymanner.82
Although these guidelines are not explicitly applicable to religious
schools with avowed racially discriminatorypolicies,83this does not mean
79. Id. Judge Leventhal also noted:

Tax exemption benefit is only a 'minimal and remote involvement' . . when
compared to the kind of identification and support of religion that is prohibited under
the Establishment clause. But governmental and constitutional interest of avoiding
racial discrimination in educational institutions embraces the interest of avoiding
even the 'indirect economic benefit' of a tax exemption.
Id. (citation and footnote omitted).
The principle that the kind and amount of public assistance necessary to constitute an
establishment of religion is different from that required for a showing of state action is
also expressed in Norwood v. Harrison, 413 U.S. 455, 469 (1973).
80. The court said: "We are persuaded that there is a declared Federal public policy
against support for racial discrimination in education which overrides any assertion of value
in practicing private racial discrimination, whether ascribed to philosophical pluralism or
divine inspiration for racial segregation." 330 F. Supp. at 1163.
81. Proposed Revenue Procedure, 44 Fed. Reg. 9451 (1979). The guidelines provide
an elaborate set of criteria for determining whether a school is a "reviewable school," i.e.,
one that was created or expanded in response to public school desegregation and that has an
insignificant number of minority students enrolled. "Reviewable schools" and "adjudicated
schools" (those which have been found by a court or agency to engage in racial dis-
crimination) are to be stripped of their exempt status unless they have taken genuine, affirmative
steps to remedy the situation. However, on September 6, 1979, the Senate voted to postpone
the enforcement of these regulations for at least a year. This came on the heels of a previous
Senate decision to cut off the use of federal funds by the IRS to terminate tax exempt status
of racially discriminatory private schools. See 125 CONG.RiEC. S11,978-87 (daily ed. Sept. 6,
1979).
82. Under the guidelines, the Internal Revenue Service will examine certain schools
and deny tax exemption where their actual operations are inconsistent with their stated
policies of nondiscrimination. 44 Fed. Reg. 9451 (1979).
The release defines a policy that is not racially discriminatory in the following manner:
[Tihe school admits the students of any race to all the rights, privileges, programs,
and activities generally accorded or made available to students at that school and
the school does not discriminate on the basis of race in administration of its
educational policies, admissions policies, scholarship and loan programs, and athletic
and other school-administered programs.
Id. at 9452.
83. The only mention made of religious schools, other than the statement of their
inclusion in the regulatory scheme, is ? 3.03(c) (6) of the Proposed Revenue Procedure, listing
facts "tending to indicate" that a school was neither formed nor expanded in response to
public school desegregation:
The school was formed or expanded in accordance with a long-standing practice
of a religion or religious denomination which itself is not racially discriminatory to
provide schools for religious education when circumstances are present making it
practical to do so (such as a sufficient number of persons of that religious belief
in the community to support the school), and such circumstances are not attributable
to a purposeof excludingminorities.
that the IRS would excuse racial discriminationbased upon religious con-
viction. On the contrary,the IRS has taken the position that because racial
discriminationviolates federalpolicy, schools that practiceit are disqualified
from tax exemption,regardlessof the purportedjustificationoffered. Sec-
tarian schools have arguedvigorouslythat IRS efforts to withhold or with-
drawtax-exemptstatuscontravenethe first amendment. At least two federal
districtcourtshave addressedthis issue, left unresolvedin Greenv. Connally,
and, ostensibly due to differing factual patterns, have reached different
results.
The first of these cases, Goldsboro ChristianSchools, Inc. v. United
States,84 was broughtby a Christianfundamentalistschool that sought re-
covery of federal withholding,social security, and unemploymentcompen-
sation taxes paid between 1969 and 1972 on the ground that it qualified
as a tax-exemptcharitableorganizationunder the InternalRevenue Code.85
The purpose of the Goldsboro ChristianSchool, founded in 1963 in
response to the prohibitionof prayer in public schools, was to provide a
secular educationin a setting permeatedby religionA86Each class, in each
subject,commencedwith a prayer,and the Second BaptistChurchof Golds-
Id. at 9453. (emphasis added).

This statement was no doubt designed to protect the parochial or other religious
school opened or expanded contemporaneously with desegregation in the public schools. In
limiting the provision to "long-standing" practices the IRS has accorded a degree of credibility
to established religions with educational heritages while denying the same presumption to
older churches starting up schools for the first time and to newer or unconventional
religious organizations.
Although the presence of a long-standing practice alone would probably not be dis-
positive of whether a school with few or no blacks was formed or expanded in response to
desegregation, it could, in a close case, tip the balance in favor of exemption. Therefore, it is
conceivable that of two otherwise similarly situated sectarian schools-one formed or
expanded by an established church pursuant to tradition and the other by a newer church,
or as the expression of a new policy of an old church-only the former would be granted
an exemption. The idea of favoring one religion over another for purposes of conferring
public benefits is inimical to the American conception of religious liberty. Moreover, the
prospect of government officials drawing distinctions between religious groups based upon
orthodox notions of religion has disturbing implications for nonestablishment and free-
exercise principles.
84. 436 F. Supp. 1314 (E.D.N.C. 1977).
85. Although in operation since 1963, the school had never received an IRS determination
as to its tax-exempt status.
86. 436 F. Supp. at 1316. The school's charter makes this overall religious purpose
clear:
(a) The General nature and object of the corporation shall be to conduct an
institution or institutions of learning for the general education of Youth in the
essentials of culture and its arts and sciences, giving special emphasis to the
Christian religion and the ethics revealed in the Holy scriptures; combating all
atheistic, agnostic, pagan and so-called scientific adulterations of the Gospel; un-
qualifiedly affirming and teaching the inspiration of the Bible (both the Old and
New Testament); the creation of man by the direct act of God; the incarnation and
virgin birth of our Lord and Saviour Jesus Christ; His identification as the Son
of God; His vicarious atonement for the sins of mankind by the shedding of His
blood on the cross; the resurrection of His body from the tomb; His power to save
men from sin; the new birth through the regeneration by the Holy Spirit; and the
gift of eternal life by the grace of God.
This charter shall never be amended, modified, altered, or changed as to the
provisions hereinbefore set forth.
Id. (quoting the school's charter).
boro figuredprominentlyin the school's operation.87 Since its inceptionthe

school had maintaineda raciallydiscriminatoryadmissionspolicy, based on
Biblical interpretation,that had resultedin the exclusion of blacks, although
other nonwhiteshad occasionallybeen accepted.
The school arguedthat in light of the religiousbasis of its discriminatory
admissionspolicy, denial of tax-exemptstatuswould violate the first amend-
ment religion clauses by burdeningthe free exercise of religiousbeliefs and
promotingthe establishmentof nondiscriminatoryreligious beliefs.88 For
purposes of ruling on a motion for partial summaryjudgment,the district
court assumed that the policy was "based upon a valid religious belief."89
The court did not, however, complete the free-exerciseanalysis. Indeed,
it gave the school's free-exerciseclaim short shrift, hardly mentioningthe
issue or the proper method of resolving it. The court appears to have
largely subsumedthe free-exerciseissue under the rubric of the establish-
ment clause analysis,dismissingit with the remarkthat in Gillette v. United
States,90an establishmentclause case, the Supreme Court held that a
"legitimatesecularinterestavoidedany Free Exerciseproblems."91
The court characterizedthe case before it and Gillette as involving"in-
cidental distinctionsin governmenttreatmentof religions which indirectly
arise from the valid exercise of legitimate governmentalinterest[s]."92 In
Gillette, the SupremeCourt held that a legislative distinctionbetween uni-
versal and selectiveconscientiousobjectorsviolatedneitherthe establishment
nor the free-exerciseclauses, because it was based on legitimate, purely
seculargovernmentalinterests. In Goldsboro,the district court found that
a legitimatesecular purpose of removingvestiges of slavery by promoting
integrationunderlay the policy of denying tax-exempt status to racially
discriminatoryschools. The policy operatedto deny tax exemptionwithout
reference to the sectarianor nonsectariannature of the institution. This
"neutral"applicationof the law, the court said, neitherenhancesnor inhibits
religion. To complete the establishmentclause analysis, the court applied
the "excessiveentanglement"test of Lemon v. Kurtzman93 and concluded
that the policy actuallypreventedindirectgovernmentaid to religion.94
The other case to considerthe first amendmentimplicationsof revoking
a religiousschool'stax exemptionbecause of its religiouslymotivatedracially
87. Id.
88. Id. at 1319.
89. Id. at 1317 (emphasis added). "Valid," of course, is an unfortunate word choice.
Courts are constitutionally foreclosed from inquiring into the truth or falsity of religious
beliefs. Sincerity of belief, on the other hand, is generally considered to be a proper
subject of judicial inquiry. Certainly, the court must have used "valid" to denote sincerity.
90. 401 U.S. 437 (1971).
91. 436 F. Supp. at 1320.
92. Id. at 1319.
93. 403 U.S. 602 (1971).
94. 436 F. Supp. at 1320. The court viewed the inquiry whether a school had dis-
criminated on account of race far less intrusive than an inquiry into the sincerity of the
school's religious convictions-an inquiry that might have been inevitable if the school's
position had been adopted.
discriminatorypolicies was Bob Jones Universityv. United States.95 Bob

Jones University,a Christianfundamentalistschool, sued to recover federal
unemploymenttaxes that it had paid. The districtcourt, in a lengthy and
sometimesconfusingopinion,held that withdrawalof the school's exemption
violated both the free-exercise and the establishmentclauses of the first
amendment.
The school, which enrolled students from kindergartento graduate
school, was permeatedby fundamentalistChristianity.96All courses were
taught in accordancewith the Bible, all teachers had to be "born again,"
and the religious beliefs of entering students were scrutinized. In short,
"religioncontrolled] and dominated] education"97 at all levels. A "primary"
tenet of the school was that the Bible forbade interracial dating and
marriage.98 The court characterizedthis tenet as a "genuine" religious
belief.99 To protect its belief that interracialdating and marriage were
contrary to Scripture, the school established certain "disciplinaryrules"
requiringexpulsionof studentswho dated or marriedoutsidetheir race. The
IRS revoked the school's tax exemption on the ground that discrimination
on the basis of the race of a person'sspouse or companionviolated public
policy.
Having concluded that the policy against interracialrelationshipswas
a religiousbelief, the court first focused on the nature and function of the
belief in relation to the fundamentalistChristianreligion. Distinguishing
between"actionsrelatedto a particularreligiousbelief and the actualpractice
of the belief itself," o10it concludedthat the schools disciplinaryrules relating
to interracialdating and marriage"constitutethe practice of its religious
convictions."10o The court appearedto be engagingin a centralityinquiry,
which properlyshould focus on the role of a practicein the individual'sor
group'stotal religiousschema. Finding the proscriptionof interracialrela-
tionships to be a "cardinalprinciple" of the fundamentalistfaith,102the
court seems to have indicatedthat the religioncould not be practicedin the
absenceof such a proscription. Thus, the IRS action substantially,although
indirectly,impairedthe actual practice of the religion.103
95. 468 F. Supp. 890 (D.S.C. 1978).

96. The court found that the school was a distinct religious organization not affiliated
with any religious denomination or order. While it served educational purposes, its primary
purpose was religious. It was, therefore, a religious order in and of itself and not merely a
sectarian school. Id. at 895.
97. Id.
98. The school once denied admission to all but married blacks, but started to admit
unmarried blacks in response to a Supreme Court decision. The school also denied admission
to applicants known to be partners in biracial relationships.
99. 468 F. Supp. at 894.
100. Id. at 898.
101. "[A]ny interplay between these rules and plaintiffs admissions policy," the
court declared, "does not remove their fundamental religious nature." Id.
102. Id.
103. The court concluded that the IRS revoked the exemption "because of the direct
practice by plaintiff of its religious beliefs." Id.
Having established the centrality of the belief, the court proceeded to evaluate the
nature and extent of the infringement, and determined that the burden was substantial,
The court'sdiscussionof the governmentalinterestis the most interest-

ing and controversialpart of the opinion. It rejectedthe IRS's argumentthat
there is a discerniblepublic policy against discriminationbased upon the
race of one's mate or companion.'04 The criticalfact distinguishingthe case
from GoldsboroChristianSchools, in the court'sjudgment,was that Golds-
boro's admissionspolicy excluded all blacks. The court reasoned that the
secularinterestadvancedin Goldsborowas compellingbecause of the clear,
stated public policy of providing equal access to education, but it could
discoverno comparablepolicy regardingdiscriminationby privateinstitutions
on the basis of one's spouse or companion. Finding no compellingstate
interestjustifyingthe impairmentof the school's religiousliberty, the court
orderedrestorationof the school'stax-exemptstatus.'05
While the courts in Goldsboro and Bob Jones Universitywere con-
frontedwith essentiallythe same issue, their characterization
of the issue and
approach to its resolution were significantlydifferent. This was perhaps
most evident in the courts' evaluations of the primary effect of the IRS
policy. In Goldsborothe court found the denialof tax benefitsto all schools
that practice racial discriminationto be a neutral, even-handedapplication
of the law, neither advancing nor inhibiting religion. According to this view,
the grant or denial of tax-exemptstatus turns not on the affiliationor spon-
sorship of the school but on the nature of its admissionspractices. The
Bob Jones court, however, perceivedthe same IRS policy as patentlyspon-
soring some religionsand not othersin violationof the establishmentclause.
These conflicting conclusions may be explained by courts' differing
conceptions of what constitutes a primary effect that neither inhibits nor
advancesreligion. If such an effect is equatedwith the natureof the criteria
used in a classificatoryscheme, the resolution of the primary effect issue
though indirect. It cited Braunfeld v. Brown for the proposition that even indirect burdens
may violate the first amendment, and Sherbert v. Verner for the principle that the conferral of
governmental benefits conditioned on the forbearance of fundamental religious beliefs
"effectively penalizes" the exercise of religious liberty. Id.
By relying on both Braunfeld and Sherbert, the court made it clear that, regardless of
how one characterizes the burden, it may only be upheld if significant countervailing govern-
ment interests overbalance the free-exercise right. Although Chief Justice Warren implied in
Braunfeld that the government interest need not be as significant in the case of indirect
burdens, the court relied on Sherbert as mandating compelling state interest analysis when-
ever free-exercise rights are burdened.
104. Although McLaughlin v. Florida, 379 U.S. 184 (1964), striking down a statute
forbidding interracial cohabitation as a violation of equal protection, and Loving v. Virginia,
388 U.S. 1 (1967), invalidating a state antimiscegenation statute, seem to indicate there is
such a public policy, the court found them inapplicable to private sector discrimination. 468
F. Supp. at 898-99.
105. As an alternative holding, the court ruled that limiting exemptions to those religious
organizations "whose purpose and practices are in harmony with those of the federal
government" violates the establishment clause. Id. at 900. The court applied the secular
purpose/primary effect/excessive entanglement test, concluding that while ? 501 (c) (3), as
construed by the IRS, has a secular purpose, its primary effect is to advance those religious
groups whose policies do not conflict with federal policy. The law as applied, therefore,
tends toward the establishment of some religious organizations over others. The court found
it unnecessary to pass upon the entanglement question although it strongly suggested that the
kind of monitoring apparently required by the IRS interpretation might lead to an excessive
entanglement of church and state. Id. at 900-01.
dependsupon whetherthe criteriaare religion-neutral. Plainly,the criterion

employedby the IRS-whether the school maintainsa raciallydiscriminatory
admissionspolicy-is religion-neutral. The effect of the policy therefore
neitheradvancesnor inhibitsreligion,because there is no religiousclassifica-
tion. Any actual effect on religious activities is "incidental,"and thus
tolerable. This view accordswith that of ProfessorKurland,who maintains
that the religion clauses, properly construed, prohibit all purely religious
Strict religiousneutralityis preservedand the first amend-
classifications.106
ment left inviolate only when benefits are conferred or burdens allocated
withoutreferenceto religiouscriteria.
An alternativeapproachis to focus on the actual impact of a religion-
neutral classificationon a religious organization. The court in Bob Jones
took this position,which is reflectiveof a hybrid conceptionof the religion
clauses.'07 Accordingto this view, all governmentaleffortsactuallyresulting
in the conferralof a benefit to one religion and not another,or in the im-
position of a burden in like fashion, violate the establishmentclause. On
the one hand, this view implicitlyapprovesof religion-neutraluniformcon-
ferral of benefitsto religious organizations,which is anathemato advocates
of the strictseparationof churchand state. On the otherhand, it condemns
religion-neutralwithdrawalof uniformlygrantedbenefitsas an establishment
of religion,a position utterly at odds with strict neutralitytheory. In sum,
it is a theory that seeks to have its cake and eat it too.
C. Churchesand EmploymentDiscrimination
Title VII of the 1964 Civil Rights Act prohibits public and private
employersfrom discriminatingagainst employees or prospectiveemployees
on the basis of race, color, religion, sex, or national origin.'08 Although
religiousorganizationsgenerallyqualify as "employers"under the statutory
scheme,'09they have been granteda limited exemption. Section 702 of the
original 1964 Civil Rights Act providedthat title VII's prohibitions"shall
not apply . . . to a religious corporation, association, or society with respect
106. See P. KURLND, supra note 5; note 8 supra.

107. It is a hybrid approach because the position has attributes of Kurland's strict
neutrality theory as well as those of strict separationist theory. See W. KATZ,supra note 6,
at 24.
108. 42 U.S.C. ? 2000e (1976).
109. The statutory definition of "employer" does not specifically exempt religious
organizations:
(b) The term 'employer' means a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding year, and any agent of such a
person, but such term does not include (1) the United States, a corporation
wholly owned by the Government of the United States, an Indian tribe, or any
department or agency of the District of Columbia subject by statute to procedures
of the competitive service (as defined in section 2102 of title 5), or (2) a bona
fide private membership club (other than a labor organization) which is exempt
from taxation under section 501(c) of title 26 . ...
42 U.S.C. ? 2000e(b) (1976). See also McClure v. Salvation Army, 460 F.2d 553 (5th
Cir.), cert. denied, 409 U.S. 896 (1972), interpreting this definition as including religious
organizations.
to the employmentof individualsof a particularreligion to perform work

connectedwith the carryingon by such corporation,association,or society
of its religious activities." 110 In 1972, Congress modified this exemption
by deletingthe word "religious"before "activities.""1I Because the provision
expressly applies only "to the employmentof individualsof a particular
religion,"it does not grant a blanket exemption to religious organizations
from prohibitionsagainstrace, color, sex, or national origin discrimination.
Does this mean, therefore,that churches must, under compulsion of law,
appointblack or womenclergy? While the statuteis silent on the question,112
at least one federalcourthas concludedthat applyingtitle VII to the church-
clergy relationshipwould violate a church'sfree exercise of religion.
In McClurev. SalvationArmy,"13the plaintiff,a commissionedofficer,
or minister,in the SalvationArmy, charged that the Salvation Army had
paid her less and provided her with fewer fringe benefits than similarly
situated males, and dischargedher in retaliationfor complaints made to
superiors and the Equal EmploymentOpportunityCommission (EEOC).
She sought, among other forms of relief, reinstatementas an officer. The
Salvation Army moved to dismiss the complaint, contending that former
section 702 of title VII 114 exemptedit from liability because McClurewas
employedin connectionwith a religiousorganization's"religiousactivities."
It also arguedthat the applicationof title VII to the church-clergyemploy-
ment relationshipwould violate the first amendment. The district court,
havingfound the defendantto be a religiousorganization,grantedthe motion
to dismiss, apparentlyon the groundthat former section 702 exemptedthe
SalvationArmy from all the anti-discrimination provisionsof title VII.
The Fifth Circuit affirmedthe dismissal, although it took a different
view of section 702, holding that it exemptedreligious organizationsonly
from penalties for discriminationbased upon religion.115 The court none-
theless concludedthat applyingtitle VII to the church-ministeremployment
110. Pub. L. No. 88-352, 78 Stat. 255, formerly codified at 42 U.S.C. ? 2000e-1 (1964)
(emphasis added).
111. 42 U.S.C. ? 2000e-1 (1976) provides that title VII "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." (emphasis added).
112. Title VII permits sex, religious, or national origin discrimination in those cases
"where religion, sex, or national origin is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or enterprise .42
U.S.C. ? 2000e-2(e) (1976).
113. 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896 (1972).
114. See note 110 and accompanying text supra.
115. The court found that
[t]he language and the legislative history of ? 702 compel the conclusion that Con-
gress did not intend that a religious organization be exempted from liability for
discriminating against its employees on the basis of race, color, sex or national
origin with respect to their compensation, terms, conditions or privileges of em-
ployment.
460 F.2d at 558.
relationshipwould violate the free exercise rights of the SalvationArmy.116

The court, however, expresslylimited its holding on the free-exerciseques-
tion to "the church-ministerrelationship."117
Relying on a long line of Supreme Court decisions upholding the
autonomyof churchesin resolving their own ecclesiasticaldisputes,"18 the
court held that the disputebetween McClureand the SalvationArmy was a
matter "of church administrationand government and thus, purely of
ecclesiasticalcognizance."119 Title VII could not be appliedto this situation
withoutintrudinginto mattersat the heart of any religiousorganizationand
therebyerodingthe separationbetweenchurchand state and impingingupon
a church'sright of autonomousgovernance.'20
In a related case, Simpson v. Wells Lamont Corporation,'2' the Fifth
Circuit held that a civil court was without jurisdictionto entertaina civil
rights suit brought by a deposed minister against church officials and
parishioners. The minister had been dischargedallegedly because of his
controversialhuman rights position, his views on integration,and the color
of his wife's skin. The court of appeals, citing McClure and several
SupremeCourt decisions,held that "who will preach from the pulpit of a
church,and who will occupy the churchparsonage"122 is a purely ecclesias-
tical questionover which civil courtshave no power. The dischargedpastor
contendedthat the disputecould be resolvedwithoutresortto interpretations
of church doctrine, because the case presented a racial rather than a
religious dispute, as evidencedby the church'sassertionthat his discharge
was due to alleged "inefficiency"rather than infidelity to doctrine. The
court rejectedsuch a narrowview of ecclesiasticaldisputes on the ground
that it ignoredthe principlethat religiousorganizationsmust be free of state
interferencein matters of church governance.'23
The case of Whitney v. Greater New York Corporation of Seventh-Day
Adventists 124 provides an interesting contrast to McClure and Simpson.
Whitney, a white woman, brought suit under both title VII and 42 U.S.C.
?1981 alleging that she had been dischargedfrom her job as a typist-
116. Neither McClure nor the EEOC as amicus curiae questioned that the Salvation
Army is a religious organization or that McClure as a minister was engaged in ecclesiastical
activities. The court of appeals proceeded on the basis that these were the facts, and these
assumptions were of critical importance in the court's analysis of the case.
117. 460 F.2d at 555.
118. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440 (1969); Kreshik v. St. Nicholas Cathedral, 363 U.S.
190 (1960); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952); Gonzales v. Roman
Catholic Archbishop, 280 U.S. 1 (1929); Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).
119. 460 F.2d at 560.
120. Id.
121. 494 F.2d 490 (5th Cir. 1974).
122. Id. at 492.
123. Id. at 493. Citing a frequently quoted passage in Kedroff v. St. Nicholas
Cathedral, 344 U.S. 94, 116 (1952), the court noted that Supreme Court decisions reflect
"a spirit of freedom for religious organizations, an independence from secular control or
manipulation-in short, power to decide for themselves, free from state interference, matters
of church government, as well as those of faith and doctrine."
124. 401 F. Supp. 1363 (S.D.N.Y. 1975).
receptionistfor the Adventistsbecause she maintaineda "casualsocial rela-

tionship"with a black man. The churchrespondedthat the applicationof
either statute to Whitney'semploymentrelationshipwould violate its free-
exercise rights.'25
The courtrejectedthe church'scontention,findingthe McClureprinciple
applicableonly to the employmentrelationshipwith ministers,and not with
typist-receptionists.Whitney'sposition was unrelatedto the church'sdoc-
trinalpolicies and far enoughremovedfrom the heart of church administra-
tion to be beyondfirstamendmentinsulation.'26
Arguably,the courtwas implyingthat a dischargebased upon "doctrinal
policy" may be protected by the first amendment,because it presents a
questionmore closely akin to the issue in McClure. Such a position raises
the question,however, of how a doctrinallymotivateddischargeshould be
distinguishedfrom a sectarianschool's religion-baseddiscriminatoryadmis-
sions policy. It also raises the issue of what kinds of functions a clerical
personmust performfor his or her relationshipwith the churchto be deemed
close to the heart of church administration. Should a court focus upon all
of the duties performedby such a person to ascertainwhat percentageof
the duties can be denominated"ecclesiastical"as opposed to "secular"?
What percentagewould tip the scale in favor of the free-exerciseclaim?
These questionsare left very much unresolvedby McClureand Whitney.
Those cases did settle that the EEOC has jurisdictiononly over those
church employmentdisputesthat involve persons performingpurely secular
functions. The unclear basis of decision in the recent case of EEOC v.
MississippiCollege,127however, appearsto muddy these supposedlysettled
waters. The dispute arose when the college, owned and operated by the
MississippiBaptistConvention,refusedto hire a womanpsychologyprofessor.
She filed charges with the EEOC, but the college refused to supply that
agency with any informationabout its employmentdecision.8 It did not
deny the allegation of sex discriminationbut argued that its status as a
private, religious school exempted it from any governmentalinquiry. The
record before the court indicatedthat the woman had previouslytaught at
the college, that she was once a Baptistbut later became a Presbyterian,that
ninety-sixpercentof the faculty and eighty-sixpercent of the studentswere
Baptist, that Bible courses and chapel meetings were required, that there
were no female ministersin the MississippiBaptist Convention, and that
125. The church also maintained that the plaintiff lacked standing to bring the action
because she was discharged on account of her friend's and not her race. The court rejected
this argument, holding that her allegation satisfied the requirement of title VII that one be
discharged because of his or her race. Id. at 1366-67 & n.3.
126. Id. at 1368.
127. 451 F. Supp. 564 (S.D. Miss. 1978).
128. The EEOC issued a subpoena in an effort to investigate the complaint to determine
whether a controversy existed over which it had jurisdiction. The case found its way to
federal court when the EEOC brought a proceeding to enforce the subpoena. The court
refused enforcement, holding that the Commission was wholly without jurisdiction to require
any information from the school regarding its refusal to hire the woman.
19791 RELIGIOUS ORGANIZATIONS 1537
the school hired no women to teach Bible courses. Exactly what these facts
establishis hard to discernfrom the opinion. On the one hand, the court
statedthat the religiousorganizationexemptionin section702 as amended129
indicated that title VII had no application to women employed by the
college.'30 Because the exemptionby its terms extends only to religious
discrimination,the court was quite mistaken if it believed that it grants a
wholesaleexemptionfrom title VII.
If, on the other hand, the court equated a psychology professorwith
a minister, thus characterizingthe relationshipas that of church-minister
withinthe ambitof McClure,'3'its conclusionwas unsupportedin the record
as presented. Aside from somewhatdisconnectedreferencesto the character
and make-up of the school, the court made no effort to establishthe clergy
status of the psychologyprofessor,nor did it attemptto place the position
of psychology professor at Mississippi College somewhere on the secular-
spiritualcontinuum. But accordingto McClure, these are the very factual
questions that the EEOC needed to explore in order to determine the
school's amenabilityto a sex discriminationcharge. The court's opinion
thus seems to adopt the positionthat if an employmentrelationshiparguably,
or even conceivably,falls within the church-ministerambit, a governmental
inquiryinto relevant matterswould necessarilyimplicate and impermissibly
entanglethe state in churchadministration.'32
The amendedversion of section 702, which the court apparentlyinter-
preted broadly in MississippiCollege, reflects the inherenttension between
the two first amendmentreligion clauses. On the one hand the exemption
for religious organizationsseems necessary to protect their free-exercise
right to employ membersof their own faith in religiouslysensitivepositions.
On the other hand, the statutorygrant of a religious exemption may be
tantamountto sponsoringreligion, in violation of the establishmentclause.
For this reason, the SupremeCourt has repeatedlyrecognizedthat exempt-
ing religiousorganizationsis a risky businessthat requiressensitivityto both
free-exerciseand establishmentclausevalues. In effect,legislatures,agencies,
or courtsmustbalancethe two values.
The Court of Appeals for the District of Columbiahas expressedthe
view that the originaltitle VII religiousexemption,limited to the "religious
activities"of an organization,reflected a more proper accommodationof
free-exerciseand nonestablishment values. In King'sGarden,Inc. v. FCC,'33
129. See note I11 supra.

130. 451 F. Supp. at 565.
131. The court cited McClure as authority for a proposition far broader than that
actually announced by the Fifth Circuit in that case, quoting those portions referring to
the church-minister relationship as the "lifeblood" of the church, a matter of church
governance, and thus an area of "prime ecclesiastical concern." Id. at 566 & n.5.
132. The court quoted "excessive entanglement" language in Lemon v. Kurtzman, 403
U.S. 602 (1971), and Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977),
afj'd on other grounds, 440 U.S. 490 (1979).
133. 498 F.2d 51 (D.C. Cir.), cert. denied, 419 U.S. 996 (1974). The case arose when
the FCC found a religious radio station that it licensed guilty of religious discrimination under
an FCC regulation prohibiting broadcast licensees from discriminating in employment practices
the court in very strong dicta seriously questioned the constitutionalityof

the 1972 amendmentto section 702 exemptingall activities of a religious
organizational34
The court postulatedthat the 1972 exemption violated the establish-
ment clause by indulgingin a "specialpreference"for religion,thus breach-
ing the acceptableboundariesof "neutrality." 135 In the court's judgment,
the present exemption'spurpose is hardly secular and its "primaryeffect"
is the "sponsorship"of religious organizations.'36 The court regardedthe
previous exemptionfor religious activities as requiredby the free-exercise
clause, whereas it consideredthe present broader exemption as possessing
"not the slightest claim" to first amendmentprotection.'37While the court
conceded that Congressmay arguably"expanda religious exemptionsome-
what beyond the minimalboundariescreated by the several First Amend-
ment liberties"withoutrunningafoul of the establishmentclause, it indicated
that Congresshad not legitimatelydone so here because the classification's
purposewas patentlyreligious.'38
Despite these constitutionaldoubts, the 1972 version of section 702
still stands. The court's concerns in King's Garden demonstrate,however,
the problems inherent in exempting religious organizationsfrom antidis-
criminationlaws, or in penalizingthem by denying tax benefits for failure
to follow national policy on equality. The current free-exercise analysis
on the basis of race, color, religion, sex, or national origin. 47 C.F.R. ?? 73.125(a),
73.599(a), 73.680(a), 73.793(a) (1978). The FCC has, however, exempted from this general
prohibition religion-based discrimination if the employment is "connected with the espousal of
the licensee's religious views." Request of National Religious Broadcasters, Inc., 43
F.C.C.2d 451 (1973); Complaint of Anderson, 34 F.C.C.2d 937 (1972). The radio
station argued that the religious organization exemption in title VII, as amended in 1972,
should be made a part of the FCC's regulations regarding employment discrimination, on
the theory that the FCC exemption, limited to employment "connected with the espousal of
the licensee's religious views," failed to comply with the "national policy" reflected in the
broader title VII exemption. The licensee contended, therefore, that it should be permitted
to discriminate on the basis of religion in connection with all of its activities. King's
Garden also maintained that the FCC's limited exemption violated the organization's free
exercise rights, because it insufficiently protected its right to broadcast religious views and
thus impaired the station's religious autonomy. This religious association argument rested
on the premise that the radio station is "an integral part of the sect's 'missionary'
structure," 498 F.2d at 59, so that the FCC's involvement in the employment practices of
the station was an unconstitutional intrusion into the internal operation of the church.
The court of appeals held that neither the explicit terms nor the legislative history of
the 1972 amendment to title VII indicated any desire on the part of Congress to super-
impose the exemption on the FCC regulations regarding employment discrimination. While
the court acknowledged the long-standing prohibition of state involvement in church gover-
nance and administration, it rejected the premise that the church and station were one
indivisible whole. Moreover, it rejected the station's religious autonomy claims on the
ground that the station had reached out to use the airwaves, "a limited and valuable part of
the public domain." Id. at 60.
134. The court adopted a construction of the 1972 amendment that made a definitive
resolution of the constitutional issue unnecessary, emphasizing that the job position involved
had no connection with program content or a program with a religious dimension. Id. at 61.
135. Id. at 55.
136. The court stated: "As for 'primary effect,' the exemption invites religious groups, and
them alone, to impress a test of faith on job categories, and indeed whole enterprises,
having nothing to do with the exercise of religion." Id.
137. Id. at 56.
138. id.
used by courts has producedwidely differingapproachesand results, to the

detrimentof both first amendmentvalues and the national commitmentto
eradicatediscrimination. A more satisfactoryapproachis needed for re-
solvingthe conflictbetweenreligiouslibertyand the questfor humanequality.
II. EQUALITYVERSUS RELIGIOUSLIBERTY: A PROPOSED

RESOLUTIONOF CONFLICTINGCLAIMS
Religious freedom and independenceof religion and governmenthave

been describedas "the alpha and omega of democracyand freedom"139 in
our constitutionalsystem. To preservethis principlein any viable form, the
governmentmust refrain from regulatingthose activities and relationships
within a churchthat can be termedpurely spiritualor integralfacets of the
actual practice of the religion. These spiritualactivities and relationships
should be thoughtof as comprisingthe core or heart of a church. Emanat-
ing from this core are a series of activitiesand relationshipswith increasing
indicia of secularity. This notion is best illustratedby referenceto three
concentriccircles revolving around an epicenter. The epicenterrepresents
the purelyspirituallife of a church. The relationshipbetween a churchand
its clergy and modes of worship and ritual surely fall within the spiritual
epicenter,as do membershippolicies of a church. Religious educationpro-
gramssuch as catechism,bible study, and Sundayschool also fall withinthe
epicenter. Similarly,church-operatedor affiliatedschools that teach secular
subjects with a decidedly religious orientationmight also fall within the
epicenter.
The first emanationfrom the epicentercontains church-sponsoredcom-
munity activities,such as adoption agencies,homes for the aged, hospitals,
and schools whose curriculaare dominatedby secular courses and in which
religious orientationis presentbut not pervasive,and relationshipsbetween
the church and support employees with some religious or quasi-religious
functions. The second circle includes a church's purely secular business
activitiesand relationshipsbetween clerical or janitorialemployeeswho per-
form only nonspiritualfunctions. The outermostcircle representsthe totally
secularworld.
The spiritualepicenterof a church must be outside the scope of civil
regulationbecause otherwisetherewould invariablybe too great an infringe-
ment of free-exerciserights. Only the most compellinggovernmentinterest,
such as the need to assure the physical well-being of church members or
nonmembersor the generalsecurityof the community,might justify regula-
tion of some practiceswithinthe epicenter.140
139. L. PFEFFER,CHURCH,STATEAND FREEDOM114 (1953). Madison and Jefferson
conceived of religious liberty as an inalienable natural right. Id. at 113-14, 118-19. Madison
regarded religious liberty as one of the "choicest liberties of the people." A. KOCH,JEFFERSON
& MADISON: THE GREAT COLLABORATION 58 (1964).
140. For example, the government may have such a compelling interest in regulating
worship practices that threaten physical well-being, such as human sacrifices, drug use,
physical brutality, and snake handling.
Once, however,the churchacts outside this epicenterand moves closer

to the purelysecularworld, it subjectsitself to secularregulationproportion-
ate to the degree of secularityof its activitiesand relationships. A church
acting outside the epicentermay still enjoy some degree of first amendment
protection,but its claims may be evaluatedin light of competing,and per-
haps more weighty,generalsocietal interests.
Applicationof this analysisto differenttypes of discriminationpracticed
by religiousorganizationsrequiresthat churchmembershippolicies be placed
in the spiritualepicenter,insulatedfrom civil control or regulation. Regard-
less of how nonspiritualor uncharitableit seems, a congregationmust be
accordedthe right to discriminate-racially or otherwise-in the selection
of its brethren,becausethe rightto worshipwhat and with whom one chooses
is fundamentalto the concept of free exercise of religion.141 The framers
of the religion clauses believed that maintaininga viable pluralismwas a
hedge againstreligiousabsolutism. Thus, the group or sect was central in
their scheme of religiousliberty. James Madison, a major architectof the
first amendment,wrote: "Securityfor civil rights must be the same as
that for religiousrights;it consistsin the one case in a multiplicityof interests
and in the other in a multiplicityof sects."142
The existenceof diversereligiousgroups,each enjoyingequal autonomy
and self-eovernance,operates to diffuse religious power. Maintainingthis
diversitynecessarilyimpliesthat each grouphas a self-perceptionupon which
it is reasonablyfree to model its internalstructure. The membersof each
sect must have a right to worshipwith whom they choose; the existenceand
preservationof manv differentreligious bodies requires this very kind of
discriminatorypractice, because a religious group's special identity is best
reflectedin its doctrine and in the beliefs and actions of its members. A
court may not order a churchto admit membersagainst its wishes, because
such governmentalaction threatens the uniqueness of a religious group
through imposition of general secular standards,which, in turn, threatens
religiouspluralism.
The SupremeCourt has consistentlyheld that religious organizations
have "the power to decide for themselves,free from state interference,mat-
ters of churchgovernmentas well as those of faith and doctrine."143 Civil
courts are strictly forbiddenfrom interveningin church property disputes
141. The Court has emphasized that:

In this country the full and free right to entertain any religious belief, to practice
any religious principle and to teach any religious doctrine which does not violate
the laws of morality and property, and which does not infringe personal rights, is
conceded to all. The law knows no heresy, and is committed to the support of no
dogma, the establishment of no sect. The right to organize voluntary religious
associations to assist in the expression and dissemination of any religious doctrine,
... is unquestioned.
Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871) (emphasis added).
142. THE FEDERALISr No. 51 (J. Madison) at 358 (B. Wright ed. 1961).
143. See, e.g., Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952).
that involve determiningecclesiastical or church governance questions.'44

in Serbian Orthodox Diocese v. Milivojevich145 the Court reaffirmedthis
principleand addedthat it "applieswith equal force to churchdisputesover
churchpolity and churchadministration." 140 Thus, governmentalintrusion
into the ecclesiasticalconcernsof a church,such as effortsto changeor dictate
churchmembershiprules,runs afoul of the institution'sfree-exerciserights.'47
To preservefree-exerciserights, mattersof church membershippolicy
must necessarilybe so completelyimmune from civil interventionthat the
validity of a discriminatorymembershippolicy should not even depend on
the existence of a scripturalor other religiousjustification. A church may
choose to exclude persons for purely secular reasons; such a decision is
simply outside the purviewof civil government. In this sense, the right to
controlmembershipis absolute.
While free-exerciserights protect the racist church,it is less clear that
they insulate church-relatedschools that engage in similar exclusionary
practices. Under the epicenteranalysis,the best way to evaluatea religious
school's discriminatoryadmissionspolicy is to ask to what extent enrollment
in the school is distinguishablefrom membershipin a church, and thus, not
an instanceof personscoming togetherfor purposesof worship.
In Brownv. Dade ChristianSchools,Inc., 48 JudgeColeman,one of the
dissenters,apparentlyasked this question. He characterizedthe school as
"a direct, intimate adjunctof church activities, conducted in the house of
worship,"and concludedthat "no court should have the power to compel
any church to admit any student to any school operatedfor religious rea-
sons."149 Judge Coleman viewed the school as essentially an extension,
almostan alterego, of the church. He thereforeimplicitlytreatedthe school-
admissions- issue as a churchmembershipissue, a mattersquarelywithin the
epicenter.
Judge Goldberg,in his concurringopinion, disagreedwith Judge Cole-
man's characterization,apparentlybecause the school advertisedfor students
in the yellow pages and indiscriminatelyadmittedall but black students.'50
He characterizedthe case as not implicating"the interests of a church in
144. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); see, e.g., Presbyterian
Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church,
393 U.S. 440 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).
145. 426 U.S. 696 (1976).
146. Id. at 710.
147. This principle is not only derived from court opinions, but from philosophical
writings that influenced the framers of the first amendment's religion clauses. For example,
John Locke, in his Letter Concerning Toleration, stressed the importance of individual
autonomy to choose to belong to a particular church and the power of each church to make
its own membership regulations. See 2 THE WORKS OF JOHN LOCKE 235-36 (3d ed. 1727).
Thomas Jefferson drew on Locke's Letter in his speech advocating the disestablishment of the
Episcopal Church before the Virginia House of Delegates in 1776. See 1 THE PAPERS OF
THOMAS JEFFERSON 545-46 (Jefferson's notes on Locke) & annot. 528 (J. Boyd ed. 1950).
148. 556 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978).
149. Id. at 326 (emphasis added).
150. These were the same indicia of nonexclusivity emphasized by the Supreme Court
in Runyon v. McCrary, 427 U.S. 160 (1976). See notes 35-39 supra.
maintainingthe intimacy of its activities."151 Judge Goldberg'semphasis

on indicia of nonexclusivity,however, leaves little breathingspace for reli-
gious schools affiliatedwith evangelicalchurchesthat are chargedwith the
duty of reachingout into the communityat large in an effortto attractcon-
verts. Bringingnew membersinto the fold is a fundamentaloperatingpro-
cedure of evangelicalChristianity. To limit the protectiveumbrellaof the
free-exercise clause to church-schoolswith less evangelical fervor would
seriouslythreatennonestablishmentvalues.
The SupremeCourt, in determiningthe primaryeffect of aid to paro-
chial schools, has stated on numerousoccasions that the secular education
providedby such schools is "inextricablyintertwined"with their "religious
mission [and] is the only reasonfor [their]existence."152 These pronounce-
ments lend credenceto the argumentthat a religiousschool can be a direct,
intimate adjunct of a church. Surely the Christianfundamentalistschool,
with its classroomprayers,"bornagain"teachers,and explicit religiousmis-
sion can be as much an adjunctof a church as more traditionalparochial
schools.'53
If a school that is an adjunctof a church discriminatesin admissions
on the basis of religion, enrollmentin that school is virtuallyidentical to
membershipin the connected church. Any secular policy compellingthe
school to admit persons of differentfaiths would be constitutionallyinvalid
as an intrusioninto mattersclearlyin the spiritualepicenter. The religious
school is entitledto restrictits admissionsto students of a particularfaith
preciselybecause it is a religiousenterprise.'54The school, as an extension
and reflectionof the church,engagesin a religiousactivity,and shouldthere-
fore be equallyexemptfrom state regulationof its membership. To empha-
size the essentiallyreligiousnatureof the educationalactivityas justification
for denyingstate aid, as the Court has done,'55and to discountit for other
purposeswouldbe fundamentallyinconsistent.
The approachthis Article proposes for resolvingthe school admissions
issue does require a degree of state involvementin spiritualmatters. An
unavoidableinquiryin any case where a purportedlyreligious organization
seeks immunityfrom the law is whetherthe organizationis, in fact, religious.
Conclusivelypresumingreligiousnessin all cases where the claim is made
would be likely to encouragewhole waves of fraudulentclaims, which might
result in a growing, albeit unconscious, judicial insensitivityto legitimate
151. 556 F.2d at 322.

152. Lemon v. Kurtzman, 403 U.S. 602, 657 (1971) (Brennan, J., concurring). See also
Meek v. Pittenger, 421 U.S. 349 (1975).
153. See the descriptions of evangelical schools in Bob Jones Univ. v. United States,
468 F. Supp. 890 (D.S.C. 1978), and Goldsboro Christian Schools, Inc. v. United States, 436
F. Supp. 1314 (E.D.N.C. 1977).
154. See, e.g., Green v. Connally, 330 F. Supp. 1150, 1169 (D.D.C.), afl'd per curiam
sub nom. Coit v. Green, 404 U.S. 997 (1971).
155. See note 152 and accompanying text supra.
claims. Moreover, to argue for immunitybut againstthe religiousnessin-

quiryis to adoptlogicallyinconsistentpositions.156
The risk inherentin distinguishingthe religious from the nonreligious
is that those who most need protectionmay be fenced out because of the
unorthodoxyof their views. A court often finds itself in the constitutionally
suspect game of passing subtle judgmentson what are essentiallyquestions
of faith. This danger of excessive involvementin matters of spiritualcon-
cern is magnified,however,in the traditionalfree-exercisebalancinganalysis.
Inquiriesinto the sincerityof the claimant'sbeliefs and the centralityof those
beliefs to the practice of the claimant'sreligion may entangle a court in a
theologicalthicketby makingit an arbiterof faith-the very role it is denied
by the Constitution.157
Sincerityand centralityinquiriesare not necessaryunder the epicenter
schema. Instead, after determiningthat the school in question is avowedly
religious, a court need only ask whether the religious mission permeates
the educationalprocess. To perform this inquiry a court can focus on
relativelyobjective indicia of religiousnesswithout delving into substantive
ecclesiasticalquestions. For example, the court would look for formal or
informalconnectionsbetweenthe school and a church. Is school conducted
on church property? Does the church'spastor participatein the school?
Are the officers,directors,or teachersalso membersof the church?158 The
court might also consider whether Bible courses are mandatory,whether
classes commenceor end with prayer, and whetherteachersmust be mem-
bers of the faith.
If the court decidesthat the school is a religiousschool whose dominant
purpose is to teach secular and religious courses in a particularreligious
context, the school's admissionspolicy, regardlessof its basis or scope, must
be upheld as an exercise of religious associationalfreedom. If the court
makes the contraryfinding,there can be no cognizablereligiousassociation
claim, because the studentshave come togetherin the school for primarily
nonspiritualpurposes. Once the interrelationshipwith worshipis no longer
present, a discriminatoryadmissionpracticeis not within the epicenter,and
the religiousassociationalclaim also disappears.
If a school found not to be predominantlyreligiousinterposes a reli-
gious objectionto integrationon behalf of its students,its claim should be
denied. In this situationa school's claim, for example, that it cannot con-
done interracialrelationshipsbecause the Bible condemnsthem, is unrelated
156. Cf. Greenawalt, All or Nothing at All: The Defeat of Selective Conscientious
Objection, 1971 SuP. CT. REV. 31, 57 n.92, contending that advocacy of religious
exemptions and rejection of inquiries into the sincerity of a prospective exemptee's beliefs
are "mutually inconsistent positions."
157. Some commentators have persuasively argued that such inquiries are unconstitutional.
See id.
158. Connection or affiliation with an organized church is not dispositive by itself,
however. Cf. Bob Jones Univ. v. United States, 468 F. Supp. 890 (D.S.C. 1978) (court
explicitly found that the school was unaffiliated with a church but that it was a religious
entity unto itself).
to religious worship as such, and thus falls outside the epicenter. The
claim, althoughstill fairly characterizedas religious,takes on a quasi-secular
character. It therebyloses its immunityfrom civil legal scrutinyand must
compete against, and yield to, the unquestionablycompellinggovernmental
interestin removingthe badgesand incidentsof slavery.
An ad hoc, case-by-casebalancingis no longernecessaryunderthe epi-
center approach,for implicitin such an approachis that the facts and cir-
cumstancesof each case dictate a result for that case. The state interestin
promotingequalityis always of compellingmagnitude,unless of course the
court engages in the kind of questionablenarrowingof the interest that
marks the Bob Jones UniversitycaseA"9 A religious claim unrelated to
actual worship, ritual, or other integral religious activities of a church is
outweighedas a matter of law by the governmentalinterest in maximizing
equal opportunity.
The employmentdiscriminationcases discussedearliercan be explained
easily under the concentriccircles theory. McClure v. SalvationArmy160
and Whitneyv. GreaterNew York Corporationof Seventh-DayAdventists161
involvedemploymentrelationshipsthat respectivelyoccupy the epicenterand
second concentriccircle. The relationshipbetween the SalvationArmy and
its minister falls squarely in the epicenter, because the role of clergy is
inextricablyinterwovenwith worship and the practice of a religion. A
church'sdecision to hire or fire its clergy for whateverreason is therefore
beyond the competence of civil courts.1e2 On the other hand, a church's
employmentrelationshipwith a clerical employee who performsexclusively
nonspiritualduties bears no relationshipto worshipand the practiceof reli-
gion. When a church dischargessuch a person on account of race or sex
it can make no claim to immunityfrom civil regulation. Even if a clerical
employeeis denied employmentor dischargedbecause of his or her religion,
the churchwould still be without a viable free-exerciseclaim unless it can
show that the employee'sreligion bears a rational relationshipto the per-
formanceof the job.161 This showingcan only be made if the job requires
159. Id. The court had the option of characterizing the interest broadly, in terms of
removing the badges and incidents of slavery. It chose instead to characterize it narrowly as
an interest in prohibiting private sector discrimination on the basis of the race of one's friends
or spouse.
160. 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896 (1972).
161. 401 F. Supp. 1363 (S.D.N.Y. 1975).
162. An increasing number of women have been ordained as Episcopal priests in recent
years. CHRISTIANITY TODAY,Nov. 4, 1977, at 46. They have, however, experienced
difficulty in gaining recognition by Episcopal bishops. One of the original ordainees
actually filed a sex discrimination claim against the Episcopal Bishop of New York, TIME,
Aug. 18, 1975, at 36, but it was subsequently voluntarily withdrawn in December 1975 (personal
call to the New York State Division of Human Rights). For an interesting, although un-
convincing, argument that these women perhaps have a remedy in civil court, see Patton,
Women's Ordination: Should Church Disputes Go Civil?, CHRISTIANITY& CRISIS, Sept. 29,
1975, at 214.
163. Title VII of the Civil Rights Act contains the following equivalent provision:
[I]t shall not be an unlawful employment practice for a school, college, university, or
other educational institution or institution of learning to hire and employ employees
of a particular religion if such school, college, university, or other educational
institution or institution of learning is, in whole or in substantial part, owned, &up-
the performanceof some spiritualor religious duties.164 For example, if a

receptionist,as a part of his or her receiving duties, were requiredto dis-
tributereligiousliteratureand explain the basic mission of the church, the
churchmight be entitledto restricthiringto persons of its faith.
This receptionistexamplehighlightsthe difficultquestionof how "clergy"
shouldbe definedfor purposesof first amendmentanalysis. If the employee
can legitimatelybe characterizedas clergy, the employmentrelationshipfalls
within the epicenter. Once in the epicenter, the church's discriminatory
policies-whether racial, sexual, or religious-are insulatedfrom regulation.
If the employee cannot be consideredclergy, then at best the church will
be permittedto discriminateon religiousgrounds.
In general the line between the first and second circles seems to be
far easier to draw than the line betweenclergyand those who performsome
religiousfunctions. The ordainedministeror priest representsone extreme
on the continuumwhile the clerk-typistrepresentsthe secularextreme. De-
terminingthe point at which an employee with religiousfunctionsbecomes
clergy for purposesof the first amendmentis problematical,but objectively
possible. As a general rule, if the employee's primary duties consist of
teaching,spreadingthe faith, church governance,supervisionof a religious
order, or supervisionor participationin religiousritual and worship,he or
she should be considered"clergy."
Under this test a teacher of theology in a private religiousschool can
be characterizedas "clergy,"assumingthat the course objectiveis to incul-
cate particularvalues rather than to survey religious doctrine objectively
and comparatively. The teacher of a course in comparativereligionwhose
function is to demonstratethe superiorityof a particularfaith can also
arguablybe deemed "clergy." But satisfactionof the test is more difficult
when the teacherteaches purely secularsubjectswith a religiousorientation.
If a school requiresthat its teachers teach all secular courses in light of
particularreligiousdoctrinecan they rightlybe termed"clergy"?
This issue was inartfullyaddressedin EEOC v. MississippiCollege.'66
The court seemed to find that the position of professorof psychology at a
ported, controlled, or managed by a particular religion or by a particular religious

corporation, association, or society, or if the curriculum of such school, college,
university, or other educational institution or institution of learning is directed
toward the propagation of a particular religion.
42 U.S.C. ? 2000e-2(e) (2) (1976) (emphasis added).
Neither this provision nor ?2000e-1, discussed at notes 111 & 112 and accompanying text
supra, are consistent with the notion that there should be a sufficient nexus between a
person's religion and his or her employment duties in order to justify religious discrimination.
164. The FCC provision exempting employment "connected with the espousal of the
licensee's religious views," see note 133 supra, is an example of an effort to distinguish em-
ployees with religious duties from those with purely secular jobs. As an exemption only
from prohibitions of sectarian hiring, it is designed to separate those relationships that
should rightly be placed in the first circle from those that should be in the second circle.
It would appear, however, that if the employment of an actual on-the-air oracle of a
particular faith were the subject of concern the FCC would perhaps permit even racial
discrimination. Such a person could satisfy the definition of "clergy," thus placing the
employment relationship in the epicenter.
165. 451 F. Supp. 564 (S.D. Miss. 1978).
religion-permeatedBaptist college was either the functional equivalent of

minister,or that the mere possibilityprecludedany governmentalinvestiga-
tions regardingthe relationshipbetween a rejectedapplicantand the school.
The latter position is indefensible,for its net effect is to transformteachers
of purely secular and secularizedcourses into clergy, thus insulating the
school/teacher employmentrelationshipfrom any governmentscrutiny.'66
Wheneverthe substanceof a course is arguablysecular, however, the
governmentshould have the right to conduct or endorsean inquiryinto the
actual nature of the course, despite the potential for excessive involvement
and entanglementin spiritualaffairs.167A middle ground may be travelled
between conclusivelypresumingall teachersto be clergy and deeply intrud-
ing into the internalaffairsof a religiousschool if the inquiryinto the nature
of the course is minimal,consistingof no more than an examinationof the
school's charteror other relevant general policy statementsand the course
syllabus. If these materialssuggest a decidedly religious orientation,state
authoritiesshould cease their involvementand the school should be deemed
immune from any charges of discrimination. Once the school/teacher
relationshipis found to be in the epicenterthe state should have no further
authorityto probe the matter.
The concentriccircle analysisis also useful in assessingthe validity of
denyingreligiousorganizationsgovernmentbenefits, such as withholdingor
revokingtax-exemptstatus.168Religious organizationsare not constitution-
166. The school/teacher employment relationship should not be immune in all cases
from state regulation. Unlike students in a school permeated by religion who gather for the
combined purpose of education and worship, teachers may not necessarily be there for
spiritual reasons. Thus, to allow membership policies to be more insulated than policies
relating to the school/teacher relationship is not logically inconsistent, provided one concedes
that a school could retain its essentially religious character while offering a minimal number
of nonreligious secular courses. One perhaps might argue that the epicentral theory would
accord little weight to a school/church's freedom to choose those whom it wishes to teach
its children. For example, what if a woman applies for a teaching position but is rejected
because the school believes that there is a scriptural basis for excluding women from teaching?
If the course is to be taught with a decided religious orientation, the teacher/school em-
ployment relationship would be immune from civil regulation under the epicentral analysis.
If, however, the course is purely secular and the teacher is not required to function in a
spiritual role, the sex discrimination is a proper subject of secular concern.
While the secularity/religiousness of the course is decisive under the epicentral approach,
it is irrelevant under the traditional balancing approach. The focus in the latter approach is
on the religious belief against women teachers and not on the course. So, irrespective of
the orientation of the course (and assuming that the woman is of the particular religious
faith in question and that the reviewing court finds the belief to be sincere) the school has
substantial obstacles to overcome. First, there is the very real possibility that the court will
not find the belief to be central to the faith, thus significantly tipping the balance of interests
in favor of the state. Moreover, even if the belief is found to be central, the court may
nevertheless find the competing state interests weightier.
The remaining text in this section illustrates that the epicentral approach is likely to
provide more protection for religious liberty than the traditional approach.
167. The Supreme Court has warned that ongoing and comprehensive government
"inspection, and evaluation of the religious content of a religious organization" in order to
be "certain . . . that subsidized teachers do not inculcate religion," impermissibly implicates
the state in church school governance. Lemon v. Kurtzman, 403 U.S. 602, 619-20 (1971).
168. The obvious distinction between the state compelling integration of a private sec-
tarian school and the state withholding a benefit from a school engaging in discriminatory
practices is in the directness of impact. In the former case, the school must alter its policy,
ally entitled to exemptionfrom taxation.'09 Indeed, such exemptions are

constitutionallypermissibleonly if they are grantedto charitable,nonprofit
organizationswithout reference to the organization'sreligious character,'70
because then such aid can be justifiedas based on purely secularcriteria.'7'
Once a churchor religiousschool venturesout of its epicenterby volun-
tarilyreachingout for substantialgovernmenttax benefits,'72it finds itself in
a differentposture from the institutionwith a racially discriminatorymem-
bership or admissionspolicy that does not seek tax-exemptstatus. It, in
effect, finds itself dealing in a secular world competingfor the secular re-
source of state money. Unlike situationsin which the religiousorganization
seeks separationfrom civil society, here it invites at least minimal contact
with the state. In orderto receive the exemptionthe churchor school must
obviouslysupplythe taxingagency with proof of its charitableand nonprofit
character. The agencymust in turn determinewhetherthe requirementsfor
exemptstatushave been fully satisfied. One of those requirementsis that the
exempteenot violate clearlystatedpublicpolicy againstracial discrimination.
Simplyput, compliancewith public policy is the quid pro quo for receiving
the benefit. It is significantthat exemptionsmustbe extendedto all charitable,
nonprofitorganizationsas well as denied to all on the same neutral basis,
withoutresortto religiousclassification. This protectsreligiousorganizations
that voluntarilyventure out of their central core from invidious discrimina-
tion.'73 It is the absence of a purely religious classificationthat preserves
the neutralityand thus the constitutionalityof a governmentbenefitscheme.'74
An exampleof a statutorybenefit that impermissiblyrelies on religious
criteriais the present religious exemption in title VII,175 which permits a
whereas in the latter it need only change its rules if it wishes to receive the benefit. One
could analyze this situation by saying the first amendment permits you to be obnoxious, but
that the government need not finance your efforts.
169. Walz v. Tax Comm'n, 397 U.S. 664 (1970).
170. Id.
171. This approach accords with Professor Kurland's view "that the freedom and
separation clauses should be read as a single precept that government cannot utilize religion
as a standard for action or inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden." P. KURLAND, RELIGION AND THE
LAW OF CHURCH AND STATE AND THE SUPREME COURT 18 (1962).
172. A distinction should be drawn between those government benefits accorded to the
public generally and those accorded only to specified groups or classes. Services such as
fire, police, sewers, and public education are examples of the former, while a tax exemption
for charitable organizations is representative of the latter.
The government is affirmatively obligated to provide police and fire protection to all
citizens without reference to religious affiliation or character of enterprise. It is only where
a religious organization seeks something more than that which is generally accorded to all
that it can be said that it "voluntarily reaches out for a substantial government benefit."
173. Private membership clubs, which have been expressly exempted from the antidis-
crimination provisions of titles II and VII of the 1964 Civil Rights Act, can lose their tax-
exempt status by engaging in racial, color, or religious discrimination. [1979] 5 STAND. FED.
TAx REP. (CCH) ? 3041 (discussing Pub. L. No. 94-568, 90 Stat. 2697, which became effective
Oct. 20, 1976). See also McGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972).
174. The Supreme Court has stated that "The 'establishment of religion clause' of the
First Amendment means at least this: Neither a state nor the Federal Government can set
up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one
religion over another." Everson v. Board of Educ., 330 U.S. 1, 15 (1947).
175. See notes 111 & 112 and accompanying text supra. See also note 163 supra.
religious organizationto practice employmentdiscriminationon the basis
of religion in any of its activities,and not just its religious activities. This
exemptionruns afoul of the establishmentclause, because it singles out reli-
gious organizationsfor preferentialtreatmentand thus confers a benefit or
withholdsa burdenon the basis of a purelyreligiousclassification.'76
The epicentraltheory again providesa useful frameworkfor evaluating
the problempresentedby the title Vii exemption. As a generalproposition,
once the governmentexempts activities and relationshipsoutside the epi-
center from regulation,it has very likely violated the establishmentclause.
If the activity or relationshipexemptedcan be characterizedas Withinthe
epicenterit is beyondcivil cognizance:the state has no choice but to abstain
from any involvementin the matter. If the state is without jurisdictionto
intervene,the recognitionof its disabilityin the form of governmentnon-
action can hardlybe termedan establishmentof religion. If the activity or
relationshipis outsidethe epicenter,however,the state clearlyhas the power
to regulateit. By not exercisingthat power, the state may be accordinga
privilegeto religiousorganizationsnot otherwisegrantedto nonreligiousor-
ganizations. This breachof neutralitymay violate the first amendment.
For example,the secularbusiness activitiesof a church and the custo-
dial maintenanceof its buildingsare far removedfrom the spiritualepicenter
of the church. They more properlybelong in the second concentriccircle.
To permitreligiousorganizationsalone to discriminateon religiousgrounds
againstapplicantsfor jobs in these secularactivitiesis flagrantlypreferential
treatment. As least in cases such as Sherbertv. Verner"17 and Wisconsin
v. Yoder178 the religiousclaimantscould seriouslyargue that the state, by
limiting unemploymentbenefits to those willing to work Saturdays,or by
requiringall childrento attend school until the age of sixteen, had invaded
the epicenterof their church. A similarargumentcannot seriouslybe main-
tainedregardingbusinessactivitiesor janitorialservices.179
The originaltitle VII religiousexemptionwas consistentwith nonestab-
lishment principles because it made allowances for epicentral activities.
Under the original exemption, religious activities were presumablylimited
to those relatingto actual worship and attendantritual and proselytizing.
If, for example, an employee'sjob primarilyinvolves such spiritualmatters,
that employmentrelationshipshouldbe altogetherexemptfrom federalregu-
lation. If, however, only a small percentageof the job entails duties of a
religiousnature, and most of the work is distinctlynonepicentral,to com-
pletely exempt that employmentrelationshipfrom all of the antidiscrimina-
176. The court's dictum in King's Garden, Inc. v. FCC, 498 F.2d 51 (D.C. Cir.), cert.
denied, 419 U.S. 996 (1971), that the statute was unconstitutional thus appears to be valid.
See notes 133-36 and accompanying text supra.
177. 374 U.S. 398 (1963).
178. 406 U.S. 205 (1972).
179. I do not mean to imply that Sherbert and Yoder were correctly decided. My point
is simply that in either case a respectable argument could be made that the activity in
question has epicentral attributes.
tion provisionsof federal law would violate the establishmentclause. Reli-

gious discriminationshould be exempt, however, if even part of the job
has epicentralattributes,because membershipin a particularchurch is a
requisitefor performanceof the epicentralduties. Religious discrimination
vis-a-vis that job must be tolerated lest the church's religious mission be
undermined.
CONCLUSION
The traditionalbalancinganalysis for resolvingreligious organizations'

claims of exemptionfrom antidiscrimination laws, on the basis of the first
amendmentright of free exercise of religion, has led to unsatisfactoryand
conflicting results. More consistent and more desirable results may be
achievedif the activitiesof such organizationsare analyzedas falling'within
concentriccircles of spiritualityand secularity. Matters belonging to the
spiritualcore, or epicenter,such as church membershipor employmentof
clergy,are insulatedfrom stateregulatoryprocesses. In these areas,religious
organizationsmay discriminatefree from legal liability. Activities and rela-
tionshipsthat cannotbe placed in this epicenter,however,may be regulated
to differingdegrees by the state. Similarly,the governmentmay not grant
exemptions or benefits to religious organizationsthat discriminatein areas
outside the epicenterwithout violating establishmentclause principles. In
resolving the clash between religious liberty and social equality, religious
liberty claims concerning activities and relationshipsoutside the spiritual
epicenter must yield to the compelling governmentinterest in eradicating
discrimination.

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Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious

This country has made a profound national commitment to the principle

zations can, in some narrow instances, justifiablyengage in discriminatory

I. CURRENT APPROACHES TO DISCRIMINATION BY RELIGIOUS INSTITUTIONS

A. The Balancing Approach to Free-Exercise Claims

4. For an excellent general discussion of the Court's conflicting interpretations of the

whetherthe objectionassertedby the person or group seeking exemptionis

Before the definitionalproblemcan be settled fully, however, a related

sence of a reasonablyclear institutionallyheld religioustenet. First, a court

23. 406 U.S. 205 (1972).

Saturdayrest to the practice of OrthodoxJudaismas it was with the effect

B. The Balancing Analysis Applied-Racially DiscriminatorySectarian

35. 427 U.S. 160 (1976).

Associationalfreedomclaims cannot be so easily dismissed,however, in the

admittedsolely because they were black. The Fifth Circuit affirmedthe

Having found no religiousbelief, the pluralityhad no need to continue

51. 566 F.2d at 314 (Goldberg, J., concurring).

The dissenting opinion in Dade ChristianSchools, written by Judge

pairment of free-exercise rights is the function of centrality analysis,68 Judge

68. See notes 25 & 26 and accompanying text supra.

religiousbeliefs,73accepted the principal-pastor'sassertionat face value by

73. See notes 13 & 14 and accompanying text supra.

for religiousreasons should be grantedexempt status. The court intimated,

79. Id. Judge Leventhal also noted:

Id. at 9453. (emphasis added).

boro figuredprominentlyin the school's operation.87 Since its inceptionthe

discriminatorypolicies was Bob Jones Universityv. United States.95 Bob

95. 468 F. Supp. 890 (D.S.C. 1978).

The court'sdiscussionof the governmentalinterestis the most interest-

dependsupon whetherthe criteriaare religion-neutral. Plainly,the criterion

106. See P. KURLND, supra note 5; note 8 supra.

to the employmentof individualsof a particularreligion to perform work

relationshipwould violate the free exercise rights of the SalvationArmy.116

receptionistfor the Adventistsbecause she maintaineda "casualsocial rela-

129. See note I11 supra.

the court in very strong dicta seriously questioned the constitutionalityof

used by courts has producedwidely differingapproachesand results, to the

II. EQUALITYVERSUS RELIGIOUSLIBERTY: A PROPOSED

Religious freedom and independenceof religion and governmenthave

Once, however,the churchacts outside this epicenterand moves closer

141. The Court has emphasized that:

that involve determiningecclesiastical or church governance questions.'44

maintainingthe intimacy of its activities."151 Judge Goldberg'semphasis

151. 556 F.2d at 322.

claims. Moreover, to argue for immunitybut againstthe religiousnessin-

the performanceof some spiritualor religious duties.164 For example, if a

ported, controlled, or managed by a particular religion or by a particular religious

religion-permeatedBaptist college was either the functional equivalent of

ally entitled to exemptionfrom taxation.'09 Indeed, such exemptions are

tion provisionsof federal law would violate the establishmentclause. Reli-

The traditionalbalancinganalysis for resolvingreligious organizations'

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