STATE BY McCLURE v. SPORTS & HEALTH CLUB Nos. C4-84-771, CX-84-936.
370 N.W.2d 844 (1985)
In the Matter of the STATE of Minnesota, by Marilyn E. McCLURE, and her successor, Irene Gomez-Bethke, Commissioner, Department of Human Rights, Respondent (C4-84-771) Relator, (CX-84-936), v. SPORTS AND HEALTH CLUB, INC., d.b.a. St. Louis Park Sports and Health Club, et al., Relators, (C4-84-771) Respondents, (CX-84-936).
Supreme Court of Minnesota.
Rehearing Denied June 28, 1985.
Hubert H. Humphrey, III, Atty. Gen., Elizabeth V. Cutter, St. Paul, for State, et al.
Clyde F. Anderson, Minneapolis, for Sports and Health Club, Inc.
Heard, considered and decided by the court en banc.
In this action against appellants Sports and Health Club, Inc. (Sports and Health)
Arthur Owens, Marc Crevier and Forest Larson own and operate Sports and Health Club, Inc., a closely-held, for-profit Minnesota corporation. Sports and Health Club, Inc. operates seven sports and health club operations in the Twin Cities metropolitan area. Each provides recreational and exercise facilities as well as counseling regarding appropriate exercise programs for 18,000 members. Approximately 140 to 150 people are currently employed by the clubs. The parties agree that the clubs' facilities are excellent, described by some as the "Cadillac of the industry," and that membership dues are generally lower than those of the competition in the Minneapolis St. Paul metropolitan area.
Owens, Crevier and Larson are "born-again" Christians. Their fundamentalist religious convictions require them to act in accordance with the teachings of Jesus Christ and the will of God in their business as well as in their personal lives. These convictions are deeply held, supported in Biblical scripture, and sincere.
The owners of Sports and Health admit their religious practices and beliefs spill over into, and in fact require, their employment practices. These practices consist of questioning prospective employees about marital status and religion, terminating other employees because of a difference in
Interviews of all prospective employees, with the exception of locker-room attendants and babysitters, are conducted in violation of Minn.Stat. § 363.03, subd. 1(4)(a) (1982).
Sports and Health admits that only born-again Christians are permitted to be managers or assistant managers. The hearing examiner found this practice to be illegal under the Human Rights Act. Sports and Health justifies this rigid policy by relying on their religious belief that they are forbidden by God, as set forth in the Bible, to work with "unbelievers." (See 2 Corinthians 6:14-18). Sports and Health also admits that Bible studies are a substantial part of weekly meetings for managers. Voluntary Bible studies are also held for all sales personnel.
Finally, based on an interpretation of the Bible, Sports and Health will not hire, and will fire, individuals living with but not married to a person of the opposite sex; a young, single woman working without her father's consent or a married woman working without her husband's consent; a person whose commitment to a non-Christian religion is strong; and someone who is "antagonistic to the Bible," which according to Galations 5:19-21 includes fornicators and homosexuals. The hearing examiner found this practice to be in violation of Minn.Stat. § 363.03, subd. 1(2) (1984).
Appellants assert the sincere belief that their practices were proper and lawful exercises of the rights of free speech, free exercise of religion and freedom of association guaranteed by the First Amendment to the United States Constitution and Article
Despite all the discrimination allegations asserted in this case Sports and Health has employed, and continues to employ, married persons, male and female unmarried persons, and divorced males and females of various races. The Sports and Health clubs have also employed, and continue to employ, persons of various religious faiths — Jews, Roman Catholics, Protestants of various denominations, and others — so long as such other persons are not offended by the owners' faith, are not antagonistic toward the Christian gospel and will comply with management's work rules in a cheerful and obedient spirit.
(1) We address first the pending motions to dismiss.
(a) The Commissioner contends that Sports and Health's appeal from the hearing examiner's orders (C4-84-771) should be dismissed with respect to liability and class certification because the appeals are not from orders from which an appeal may be taken since they are not final within the meaning of Minn.R.Civ.App.P. 103.03. We need not address the issue in this case. We choose to grant discretionary review of the issues raised by Sports and Health's appeal because this is one of those "appropriate cases where the interest of justice requires immediate review of liability determinations before the issue of damages has been litigated." In re Commodore Hotel Fire & Explosion Case, 318 N.W.2d 244, 247, n. 2 (Minn.1982), see also Sigler v. First American National Bank, 325 N.W.2d 136, 137, n. 1 (Minn.1982). Sports and Health's appeal is before this court because we granted accelerated review. Rule 118 of Minn.R.Civ.App.P., providing for accelerated review, incorporates by reference the discretionary review found in Rule 117. The issues have been fully briefed in an adversarial proceeding. The interest of justice, in deciding all issues arising from the hearing examiner's order in one proceeding, compels us to the conclusion that discretionary review should be granted, and, accordingly, the Commissioner's motion to dismiss is denied.
(b) Sports and Health contends the Commissioner's appeal (Case CX-84-936) should be dismissed because the Commissioner did not file her brief within 30 days as required by Minn.R.Civ.App.P. 131.01. In fact the Commissioner has never filed the relator's brief in that appeal. However, the Commissioner did brief issues she raised in her appeal in her brief responding to the brief of Sports and Health in appeal C4-84-771. We note that Sports and Health's dismissal motion is technically meritorious. Minn.R.Civ.App.P. 142.02. However, this court did grant the Commissioner's petition for accelerated review and consolidation of her appeal (CX-84-936), with Sports and Health's appeal (C4-84-771) and ordered counsel on oral argument to be prepared to discuss the substantive issues raised in each appeal. In fact, counsel did discuss all issues on oral argument, and, pursuant to leave of the court, Sports and Health did file a brief responding to issues raised by the Commissioner. Because no rights have been prejudiced, and since the parties have been given an opportunity to brief and argue the issues raised by the Commissioner, we will grant discretionary review of those issues in the interest of justice. In re Commodore Hotel Fire & Explosion Cases, supra.
(2) Turning to the merits, we address first Sports and Health's contention that the findings of fact, conclusions of law, and orders of the hearing examiner are "unsupported by substantial evidence in view of the entire record as a whole." Minn.Stat. § 14.69 (1982). In examining that contention, we are not permitted to substitute our view of the evidence for that adopted by the hearing examiner if substantial evidence in the record supports his decision. See Dakota County Abstract Co. v. Richardson, 312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977). The test for determining whether a specific finding is supported by substantial evidence is whether the evidence, considered in its entirety, is (1) more than a scintilla of evidence; (2)
In a contested case such as this, the Commissioner must make a prima facie showing of discrimination as defined by Minn.Stat. 363.03 (1982). The employer then has the burden to establish legitimate nondiscriminatory reasons for the actions taken. The Commissioner then has the burden of establishing that the reasons stated are a mere pretext for discrimination. Hubbard v. United Press International Inc., 330 N.W.2d 428, 441, n. 12 (Minn.1983).
In this case there are numerous charging parties.
(3) We come then to the crucial issue: do the findings of fact, conclusions of law and orders of the hearing examiner unconstitutionally infringe upon Sports and Health's freedom of speech, free exercise of religious beliefs, and freedom of association as provided by the First Amendment to the United States Constitution and Article 1, Section 16 of the Minnesota Constitution?
(a) We address first a preliminary matter. The Commissioner, in her brief to this court, for the first time in this litigation raises the issue of whether Sports and Health has "standing" to raise the freedom to exercise religion issue. It is well settled that an issue not litigated below may not be asserted for the first time on appeal. Matter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.1982); Republic National Life Insurance Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 355 n. 2 (Minn.1979). However, an objection to want of "standing" goes to the existence of a cause of action, is jurisdictional, and may be raised at any time, Matter of Welfare of Mullins, 298 N.W.2d 56, 61 n. 7 (Minn.1980). In this case, however, we conclude that Sports and Health (the corporation) has "standing" to assert its constitutional arguments. The issue here is not whether a corporation has "standing" to litigate, but rather whether Sports and Health has "standing" to assert the first amendment as a defense to the claims of discrimination. The Commissioner's conclusory assertion that a corporation has no constitutional right to free exercise of religion is unsupported by any cited authority. Though not precisely on point, the United States Supreme Court has permitted employers, corporate as well as individuals, to assert first amendment rights. See e.g. First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (freedom to speak on a referendum issue); United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (individual employer claimed that his rights of free exercise of religion were violated by a facially neutral governmental law — the Social Security Act). See also Donovan v. Tony and Susan Alamo Foundation, 722 F.2d 397 (8th Cir.1983), aff'd, ___ U.S. ___, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (corporation asserted first amendment right of free exercise of religion in defense of alleged violation of minimum wage, overtime, and record keeping provisions of 29 U.S.C. 201 et seq.).
In this case, however, it is unnecessary to decide whether Sports and Health, a corporation, has a first amendment right to free exercise of religion. The hearing examiner pierced the "corporate veil" to make the respondents (Owens, Crevier and Larson), who own all the stock and assets of the corporation, liable for the illegal actions of it. Whether the hearing examiner had legal authority to pierce the "corporate veil" is not before us on this review.
(b) Sports and Health argues that if the violations of the employment discrimination and public accommodation sections of the Minnesota Human Rights Act are sustained, such conduct is protected under the right to exercise religion under the United States and Minnesota Constitutions.
Because the State of Minnesota is neither attempting to regulate religious beliefs or to single out any particular religious belief for adverse treatment, the Minnesota Human Rights Act is a facially-neutral regulation. See Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15 (1972).
But that does not resolve the issue. When an individual's action, exercised under first amendment guarantees, violates a facially neutral regulation such as the Minnesota Human Rights Act, the courts follow a three step analysis to determine whether a constitutional exemption is required. Using that analysis, we first must determine whether the requirements of the Human Rights Act actually impose a burden upon Sports and Health's free exercise of religion. See United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982). Second, if such a burden is found to exist, it must be determined whether the burden is justified by a compelling government interest. Bob Jones University v. United States, ___ U.S. ___, 103 S.Ct. 2017, 2035, 76 L.Ed.2d 157 (1983). Third, the court must determine whether the questioned regulation is the least restrictive means to achieve the state's goals. Thomas v. Review Board of Indiana Employment Security, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981).
Here, the Commissioner concedes, and the record amply supports, that the employment actions taken by Sports and Health, through its sole owners, was the result of deeply held and sincere religious beliefs. Moreover, the Commissioner concedes that the Minnesota Human Rights Act abridges those beliefs. The Commissioner, however, contends that the abridgment is justified by the state's compelling interest in eliminating all forms of discrimination.
The state's contention is buttressed by a number of recent decisions of the federal courts. See Bob Jones University, 103 S.Ct. at 2034-35 (fundamental overriding governmental interest in eradicating race discrimination can outweigh a person's right to exercise religious beliefs); Roberts v. United States Jaycees, ___ U.S. ___, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984) (state's compelling interest in eliminating discrimination against women justifies the impact that the Human Rights Act may have on male members' associational freedoms); Dayton Christian Schools v. Ohio Civil Rights Commission, 578 F.Supp. 1004, 1034-35 (S.D.Ohio 1984) (intrusion on school's free exercise rights by investigation and potential administrative hearing justified by state's compelling interest in eradication of sex discrimination and employment); Grosz v. Miami Beach, 721 F.2d 729, (11th Cir.1983), cert. denied, ___ U.S. ___, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984) (city's interest in compliance with zoning ordinance sufficiently compelling to outweigh constitutional right to free exercise of religion). See also United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Equal Employment Opportunity Commission v. Pacific Press Publishing Association, 676 F.2d 1272 (9th Cir.1982). In each case the court balanced asserted constitutional rights against the governmental interest in seeking enhancement of civil rights of its citizens. This balancing most recently occurred in Hishon v. King and Spaulding, ___ U.S. ___, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In Hishon a law associate sued her former employer alleging that sex-biased discrimination caused the decision denying her elevation to partnership status in a law firm. In holding that Hishon's complaint stated a claim cognizable under Title VII, the court rejected the law firm's defense that application of Title VII would infringe upon the firm's constitutional first amendment rights of expression and association. In doing so the majority stated:
Id. 104 S.Ct. at 2235 (citations omitted). Justice Powell, in concurrence, emphasized that laws banning discrimination may well infringe upon first amendment rights:
Id. at 2236, n. 4 (Powell, J., concurring) (citations omitted and emphasis added). An examination of the foregoing cases clearly demonstrates that the government has an overriding compelling interest in prohibiting discrimination in employment and public accommodation. Each of the cited cases supports our balancing analysis. The rationale of those cases clearly undermines the claim that Sports and Health can hire and promote only "born again" Christians in management positions. See also, Roberts v. United States Jaycees, ___ U.S. ___, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). In a pluralistic and democratic society, government has a responsibility to insure that all its citizens have equal opportunity for employment, promotion, and job retention without having to overcome the artificial and largely irrelevant barriers occurring from gender, status, or beliefs to the main decision of competence to perform the work. Likewise, the government has a responsibility to afford its citizens equal access to all accommodations open to the general public.
But are there "less restrictive" means available to achieve this overriding governmental interest? The Commissioner asserts that this compelling state interest can only be advanced by enjoining Sports and Health and its sole owners from continuing the discriminatory practices. A less restrictive alternative might be to grant persons who deeply and sincerely hold sincere religious beliefs an exemption from the statutes, and, in essence, that is what appellants argue. At the outset we note that the Minnesota Human Rights Act does contain exemptions, and, in particular, an exemption for religious corporations when religious beliefs shall be a bona fide occupational qualification for employment. Minn.Stat. § 363.02, subd. 1(2) (1984). Sports and Health, however, is not a religious corporation — it is a Minnesota business corporation engaged in business for profit. By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs. The state's overriding compelling interest of eliminating discrimination based upon sex, race, marital status, or religion could be substantially frustrated if employers, professing as deep and sincere religious beliefs as those held by appellants, could discriminate against the protected classes. Other employers in the state engaged in secular business activities would be bound by the law, but those professing such convictions would not. We agree with the Commissioner that the state's overriding interest permits of no exemption to appellants in this case. Notwithstanding the fact that the Minnesota Human Rights Act as applied here infringes upon sincerely held religious beliefs and imposes upon the free exercise thereof, when appellants entered into the economic arena and began trafficking in the market place, they have subjected themselves to the standards the legislature has prescribed not only for the benefit of prospective and existing employees, but also for the benefit of the citizens of the state as a whole in an effort to eliminate pernicious discrimination.
(4) In her appeal the Commissioner contends the hearing examiner erred in dismissing Owens, Crevier, and Larson, the sole owners of Sports and Health, from the
(5) The Commissioner sought class certification for all persons who had applied for employment with one of the clubs run by Sports and Health and who were required to furnish information regarding sex, marital status and religion. The hearing examiner refused to certify the class on the ground "it would be unduly burdensome and unfair to [Sports and Health and Owens, Crevier, and Larson] to include in the class any [such] persons * * * who cannot further prove that they were not hired because of one of those reasons." The Commissioner argues that insertion of a "fairness" consideration into the text for class certification under the Human Rights Act is an error of law.
The appropriate test for class certification under the Human Rights Act is contained in Minn.Rule 5000.1100 (1983) (formerly Hum.Rts.Rule 107(e)). That rule, substantially like Minn.R.Civ.P. 23.01, provides that class certification is proper when there are questions of law or fact common to the class, there exists sufficient similarity of claims among class members, there is adequate representation of the class, and the respondent acted on grounds generally applicable to the class making injunctive relief appropriate. The hearing examiner ruled that the state established these criteria relative to all classes for which certification was sought. Therefore, a class of persons required to furnish prohibited information must be certified.
Rule 5000.1100 provides the hearing examiner no room for exercising discretion. Moreover, it is not in the province of the hearing examiner's power to determine what claims cannot be proven further. Had the examiner pinned his refusal to certify the class required to furnish information on one of the factors found in Minn. Rule 5000.1100, we might be faced with a different question. We conclude, on remand, the requested class should be certified.
We deny the Commissioner's motion to dismiss the appeal of Sports and Health. We deny Sports and Health's motion to dismiss the Commissioner's appeal. We affirm the hearing examiner's rulings that the alleged violations were proved by substantial evidence. We conclude that the Human Rights Act is not facially unconstitutional and that the state's overriding compelling interest in prohibiting discrimination in employment, while it does infringe upon the appellant's exercise of religious beliefs, is constitutionally permissible. We reverse the hearing examiner's order refusing to certify the class and remand for further certification proceedings consistent with this opinion.
COYNE, J., took no part in the consideration or decision of this case.
PETERSON, Justice (dissenting).
The issues presented in this case are of as profound importance as any raised in my
Owens' Religious Belief and Practice in a Secular Society
This case is unique, as the hearing examiner (hereafter examiner) observed, because a statute designed to protect the religious from discrimination has been invoked by the nonreligious or merely nominally religious against Owens, a man of strong religious belief and commitment. The important issues in this case cannot be fully understood without understanding Owens himself.
Owens is, by his personal confession, a Christian. A "Christian," of course, is one who professes belief in the religion of Christianity. The centuries-old Apostles' Creed, a statement of the main Christian beliefs in use as early as A.D. 150 and still in use throughout Christendom by both Roman Catholics and Protestants, recites:
The Nicene Creed, similar in its Christology and adopted in A.D. 325, is used by the Eastern Orthodox Churches.
Justice William Brennan has taken judicial notice of the "characteristically Christian belief" that a Divine Saviour was brought into the world and that the purpose of His miraculous birth was to illuminate a path toward salvation and redemption, "an exclusive, precious and holy [path]."
Owens described his basic Christian belief in more particularized terms: "born again," "evangelical," and "fundamentalist." They are terms that, for many, have created a stereotype to which negative reactions range from amusement or bemusement
The words "born again" came from the lips of Jesus Christ to Nicodemus as reported in the Gospel according to John.
The most dramatic and radical born-again experience recorded in the New Testament is probably that of St. Paul who, en route to Damascus to persecute early Christians, had a Divine encounter and was converted into the greatest of Christian missionaries. Acts 9:1-30; 22:3-16. No less radical, if less dramatic, was the earlier experience of Peter (together with Andrew, James, and John), who abandoned his fishing nets to follow the Stranger who said, "Come with me and I will teach you to catch men." Matthew 4:18-22. Norman Vincent Peale, in an October 3, 1984, dialogue on CBS television, said that he had been born again in a "traditional way" but that not everyone does or must experience it in the same way as he had. Owens, who testified concerning his own born-again experience in 1957, described what it meant to him:
Owens is an "evangelical" Christian. "Evangel," according to Webster's Dictionary, refers to "glad tidings" or "the Christian gospel." The verb, "evangelize," is defined as "to instruct in the Gospel; to * * * convert to Christianity." A final command of Jesus to his eleven disciples was "[g]o, then, to all peoples everywhere and make them my disciples." Matthew 28:19. They did, and changed the world; Owens did, and changed his business.
Owens, finally, is a "fundamentalist" Christian. The words of the Founder of Christianity can be nothing less than fundamental. But to Owens and other "fundamentalists," to be a fundamentalist Christian encompasses a belief that both the Old and the New Testaments, in their original texts, are verbally inspired of God (citing Matthew 5:17-18, 2 Timothy 3:16-17, and 2 Peter 1:21 and 3:16) and accordingly are inerrant and the complete and supreme authority in faith and life.
It is not for an administrative agency or this court to assess the legitimacy of Owens' belief or undertake an exegesis of the Scripture passages upon which it is based. It is enough to acknowledge that it is Owens' belief and one shared by hundreds of
The Outreach of Owens' Faith in the Marketplace
This is a general statement of how Owens applied his religious convictions to the operation of his business. The particularized findings of fact and conclusions of law of the examiner, which raise more than constitutional issues, will be discussed further in Part III.
Following his religious conversion, as well as two periods of imminent bankruptcy, Owens resolved to conduct his business as an evangelical, fundamentalist "discipleship." This was augmented by improved secular business practices not inconsistent with that discipleship. The business prospered, and Owens attributed the "turnaround as being the result of God's working in the management of [his] business."
Both club members and employees were made aware of this business posture. A 14-foot-wide sign, with an unrecorded Scriptural quotation, hangs in the main office. Evangelistic Christian placards, pamphlets, magazines, and books — some free and others for sale — are placed in the lounges and other public areas of the several clubs. Bible study classes during the afternoon shift change are made available to all employees; one study leader was identified as a woman managerial employee of Roman Catholic faith, and other managerial leaders, including Owens and Crevier, apparently are Protestants. A chapter of Toastmasters International was established, and sales personnel are required to attend; as required by the charter of the international organization, all sessions start with prayer, and members deliver speeches of their own choosing, frequently on subjects religious in nature.
Owens — or sometimes one of the vice presidents if managerial employees were not involved — undertook, in addition, to learn if an applicant had a "teachable spirit" and a "disciplined lifestyle," somewhat
It is undisputed that no person will be initially employed in or subsequently promoted to a managerial position unless he or she is a "born again" and "growing" Christian. Unlike non-managerial employees, attendance at Bible study sessions is mandatory. Owens' Scriptural basis for this standard is in St. Paul's words of counsel to members of the church in Corinth:
2 Corinthians 6:14-15.
The religion-related standards for managerial employees are the most pronounced and conspicuous of those found by the examiner as violative of the anti-discrimination statute. Commonsense and common law, however, should make them the least subject to sanction. All employees, to a lesser or greater extent, have a fiduciary relationship to their employers, Restatement (Second) Agency §§ 1, 2, 13 (1957), with a duty to act in the interests of the employer and not as an adversary. This principle has been greatly diminished in the decades following the enactment of modern labor relations laws, but it is most significant that those statutes uniformly exempt managerial employees from adversarial collective bargaining relationships. The federal Labor-Management Relations Act, 29 U.S.C. § 152 (1976), in its definition of "employee," expressly excludes "any individual employed as a supervisor." Although the statute makes no mention of "managerial employee," it is construed, a fortiori, to exclude them as well. See N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). As stated in N.L. R.B. v. Yeshiva University, 444 U.S. 672, 682, 100 S.Ct. 856, 862, 63 L.Ed.2d 115 (1980), both exemptions grow out of the same concern: that an employer is entitled to the undivided loyalty of its representatives. The Minnesota Labor Relations Act does not contain a specific definition, but Minn.Stat. § 179.16, subd. 2 (1984), provides that "[s]upervisory employees shall not be considered in the selection of a bargaining agent." Paul W. Goldberg, the present director of the Minnesota Bureau of Mediation Services, and his predecessor, Peter E. Obermeyer, confirm that units of managerial employees have never been certified for collective bargaining purposes with a private employer in Minnesota. The
The point just stated can be illustrated by the hypothetical example of two not-so-hypothetical Minnesota business corporations that sell books and other publications but that have radically different business philosophies. Corporation A operates stores selling predominantly religious publications, openly displayed in sections bearing such descriptive signs as "Bible Commentaries," "Bible Stories for Children," and "Theology"; corporation B operates stores selling only secular books and magazines, including a large number of so-called "adult" books and magazines. I pose what are to me self-answering negative answers to these questions: Should corporation B be required to employ as a clerk an evangelical Christian who would find that working environment offensive? Should corporation A be required to employ an atheist who would find its working environment at least uncomfortable and who very probably would be reluctant to read any such books for the purpose of discussing and answering inquiries from interested customers? It is unthinkable that corporation B should be required to employ a branch or general manager who would be in a position actually to discourage the sale of materials he or she thought pornographic, just as corporation A should not be required to employ in a managerial position one who would convey his or her disinterest or disdain to its employees or customers. This being so, it makes absolutely no sense to forbid the asking of a religion-related question that would disclose these basic incompatibilities, unless the even more absurd answer were to be that the person should be hired first, without such inquiry, and only later discharged for nonperformance of the duties of loyalty and performance owed the employer at either place of business.
The Propriety of Religious Discipleship in a Secular Society
The examiner's disposition of the basic issue in this case was as sweeping as it was superficial: Owens' religious beliefs are sincere but, when put into practice in a commercial service business, simply irrelevant.
The examiner's view seems to reflect what Harold J. Berman, James Barr Ames Professor of Law, Harvard University, calls "[t]he fundamental changes that have taken place in our legal institutions during the past two generations [as] part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built." He concludes:
Contemporary theologians of national scholarly stature address more cogently the premise advanced in this Part I, preliminary to reaching the fundamental constitutional issue in all these cases.
Martin E. Marty, Ph.D.,
U.S. News & World Report 46 (Sept. 24, 1984).
Peter J. Gomes, Ph.D.,
James Hitchcock, Ph.D.,
Richard John Neuhaus,
Orthodox Judaism, no less than Christianity, has no sterile dichotomy like that imposed by the examiner as dispositive in this case. Milton Steinberg,
M. Steinberg, Basic Judaism 136 (1947).
The above-quoted views of professionals occupying prestigious positions in academia and pulpits in the United States are confirmed by parishioners in the pews of Minnesota churches. The Institute for Ecumenical and Cultural Research, located on the premises of St. John's University, Collegeville, Minnesota, recently undertook a 5-year, $200,000 study "to learn how Christian faith affects the lives of church members in Minnesota, in order to gain information concerning the internal condition of the churches and their relation to society." The nature of the study and its extensive findings were published in a 1983 book entitled Faith & Ferment: An Interdisciplinary Study of Christian Beliefs and Practices (hereinafter Faith & Ferment), edited by Robert S. Bilheimer, a Presbyterian minister and executive director of the Institute. The study consisted of questionnaires sent to some 2,000 church members and ministers in various denominational churches in demographically representative counties, followed by intensive personal interviews with, among others, several of those who had responded to the questionnaires. The study was an interdisciplinary collaboration, with the design of the inquiry developed by a professional group of anthropologists, sociologists, and psychologists from the University of Minnesota.
The most important finding, as reported in Faith & Ferment:
The Statutory and Constitutional Focus of the Human Rights Act
Minn.Stat. § 363.03 (1984) — subject to a prefatory exception for bona fide occupational qualifications — contains a statutory subdivision declaring the following employment practices of an employer to be unlawful and prohibited discriminatory acts: requiring an applicant for employment to furnish information that "pertains" to religion, sex, or marital status (subdivision 1(4)(a)); refusing to hire an applicant for employment or maintaining a system of employment which "unreasonably" excludes a person seeking employment because of religion, sex, or marital status (subdivision 1(2)(a)); and discharging an employee or discriminating against an employee with respect to upgrading of position because of religion, sex, or marital status (subdivision 1(2)(c)). Minn.Stat. § 363.03, subd. 3, additionally prohibits denying full and equal enjoyment of the facilities of a place of public accommodation because of religion or sex, and a violation of this subdivision is declared to be a misdemeanor. Minn.Stat. § 363.101 (1984). The text of these provisions, in relevant part, is set forth in the margin.
The Minnesota Constitution deals in direct terms with the validity of the Human Rights Act, both in its text and as applied in this case. Declaring in its Preamble that
The Three-part Factors of Constitutional Analysis
The state acknowledges that a three-step analysis should be undertaken when a statute is challenged as infringing upon these fundamental interests, namely: (1) whether the statute imposes a burden upon the free exercise of those rights; (2) if so, whether the imposition of that burden is justified by a compelling and overriding government interest; and (3) even so, whether the challenged statutory proscriptions are the least restrictive means to achieve the state's objectives.
The function of the examiner was a schitzoid one, which accounts for the unbalanced result in this case. On the one hand, section 363.11 of the Human Rights Act, in its interpretation and application, directs that the provisions of the Act "shall be construed liberally for accomplishment of the purposes thereof," and section 363.12, subd. 1, declares it to be the public policy of this state "to secure for persons in this state freedom from discrimination." Responsive to that mandate upon the administrative agency — and without power to determine issues of constitutional law — the examiner, by his findings, conclusions, and orders, interpreted the statute not only in a "liberal" fashion but in a remarkably extravagant way.
On the other hand, the three-factor constitutional analytical framework has the opposite mandate, for it imposes restrictions against intrusion upon fundamental and overriding civil liberties. The examiner acknowledged, as to the first factor, that the sincere religious beliefs of Owens were burdened by the Act, but with respect to the second and third factors, he did no more than make the uncritical declaration that the burden was justified by a compelling state interest, without less restrictive alternatives of interpretation or enforcement.
The statutory and constitutional facts are not in all respects neatly separated, and they tend to coalesce. The greater the magnitude of the individual's liberty interest, the more compelling must be the state's interest sufficient to override the individual's. Similarly, the greater the individual's interest, the greater must be the state's search for less restrictive alternatives of interpretation and enforcement. Among such alternatives, constitutionally-offensive provisions of a statute may effectively be read out of the statute to save the statute or, conversely, safeguarding provisions may be read into the statute to salvage it. As we declared in State on Behalf of Forslund v. Bronson, 305 N.W.2d 748, 751 (Minn.1981):
A pervasive issue, significant in both a statutory and constitutional sense, is both illustrative of this coalescence and important to all the employment-related complaints of discrimination: Are the statutory prohibitions uncompromisingly absolute and are the stated exceptions, particularly the general prefatory exception for "a bona fide occupational qualification," just as uncompromisingly narrow? There are other general and specific exceptions that give negative answers to these really rhetorical questions:
The examiner missed the opportunity to apply his sacred-secular dichotomy to the exception for religious and fraternal corporations, neither of which is defined in the Act. Consulting Webster's Dictionary, he narrowly defined "religious corporations, associations or societies" as only those "whose primary purpose is ecclesiastical, which is defined as `of or relating to a church, especially as a formal and established institution' or `of or relating to the formal and established institutions or government of any religion.'"
The examiner's stated reason for rejecting Owens' claim for a religious corporation exception encounters substantial problems of inconsistency when applied to the statutory exception for fraternal corporations, associations, or societies, some of which are church related and others of which are not. Fraternal beneficiary associations are organized under Minn.Stat. ch. 64A (1984). Section 64A.02 defines such associations as:
But section 64A.03 provides that a ritualistic form of work or ceremony is not required where membership is confined to members of any one religious denomination. The exceptions stated in section 363.02, subd. 1, however, are not confined to the limitations of section 64A.02. A common function of fraternal benefit associations is the providing of life, accident, sickness, and disability insurance for their members (section 64A.48), but they may transform themselves into mutual life insurance companies as well (section 64A.15). They are highly regulated by the insurance commissioner with respect to policy provisions, reserve funds, and other financial matters (sections 64A.19-.43). Section 64A.44 exempts these associations from taxation under the general tax or revenue laws, except as to real estate. Some fraternal benefit associations are religion-related, such as the Catholic Aid Association and Lutheran Brotherhood; others are not, such as the Sons of Norway, the Degree of Honor Protective Association, and the Woodmen of the World Insurance Society.
The important point concerning the fraternal benefit associations is that they operate in the secular marketplace in competition with other insurance companies, differing only as to the character of the population from which they solicit business. It is true that they are exempt from taxation as charitable institutions, but it is equally true that not all charitable institutions are exempt from the provisions of the Human Rights Act, such as nonprofit charitable hospitals. It is true that some of the fraternal benefit associations provide financial support to churches, church-affiliated schools, and other religious institutions. It is equally true, of course, that many successful businessmen with strong religious commitment, such as Owens, give substantial support to such institutions; indeed, Owens founded and supports Chapel Hill Academy in Deephaven, Minnesota, a strongly religion-oriented elementary-secondary school.
Our legislature has, in other legislation, demonstrated sensitivity to the conflict between freedom of religion and the operation of secular statutes where the potential for conflict was readily predictable, as in the case of Sunday closing laws. Unlike such statutes in other states, of which Pennsylvania was one (see Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)), the Minnesota statute, Minn.Stat. § 325.913(5) (1967), permitted Sunday opening for "a place of business which is regularly closed on Saturday and which was actually closed all hours on the Saturday before the Sunday on which such sale of restricted items occurs." This exception, notwithstanding the state's burden of enforcement, was designed to avoid a burden upon those whose faith, like those of the Orthodox Jewish faith, requires the closing of their places of business and total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. Taking note of this in State v. Target Stores, Inc., 279 Minn. 447, 459, 156 N.W.2d 908, 916-17 (1968) (although invalidating the statute on grounds of vagueness, as a denial of due process under the United States and Minnesota Constitutions), we said:
Our legislature, unlike the examiner, obviously did not think that religious freedom was irrelevant merely because its exercise related only to secular commercial activities. Neither was the legislature saying,
It would do no violence to the statute either to impose upon Owens a less restrictive definition of "religious corporation" or simply to extend to his business-discipleship the comparable exception granted by the statute to fraternal corporations, associations, and societies.
Analysis of Hearing Examiner's Findings of Fact, Conclusions of Law, and Enforcement Orders
The findings of fact and conclusions of law, together with cease and desist orders based thereon,
1. Finding: requiring the furnishing of information related to religion or marital status.
The finding and conclusion as to Joseph Williams
Forbidding an employer from asking questions related to religion or morality denies to that employer a right to important information relevant to suitability for employment. In a recent survey, 100 vice presidents and personnel directors of "Fortune 1,000" companies, as reported in the Freeway News, Feb. 13, 1985, were asked: "What employee behavior disturbs you the most?" Their reported answers:
A professionalism survey report by the Minnesota Bar Association, reported in the March 1985 issue of The Bench & Bar of Minnesota, confirms this fundamental qualification:
Without suggesting that nonreligious persons inevitably lack qualities of honesty or commitment to duty, there is a substantial degree of assurance that those of genuine religious commitment will have those qualities. It can hardly be doubted, furthermore, that those who are "antagonistic to the gospel," that is, antagonistic to Owens' manner of conducting his business, demonstrate "an absence of commitment, concern or dedication" to the interests of this employer valued by the surveyed personnel directors.
These limitations upon employee interviews are impermissible limitations upon freedom of speech, unless the state has a compelling interest which overrides that individual freedom. But it is only a discriminatory employment decision of the employer, not the inquiry itself, that should invoke the state's concern. The fact of the inquiry may prove the inquirer's knowledge of a person's religion or marital status and tie an inference from that knowledge to an otherwise unexplained adverse decision, but the examiner made no such linkage in these three cases. The most obvious example is that of Joseph Williams, for the complaint was limited to the inquiry only. The inquiries of Carnahan and Larsen concerning their parents' divorces were not linked to any violation based on their own marital status, nor could they have been.
A closer, yet questionable, linkage is that relating to Katherine Lamannsky, infra note 36. Even here, however, the information concerning her divorce did not surface
There is remarkable vagueness in the examiner's assessment of questions to Carnahan and Larsen about reading the Bible, prayer, and church attendance. None of them identify a particular religion, although they concededly may distinguish the religious from the nonreligious. If, however, it is impermissible to ask whether a person reads the Bible, which is itself a library of books, would it be impermissible to inquire whether a person has read such other classics as John Bunyan's Pilgrim's Progress or John Milton's Paradise Lost or Paradise Regained? Or would a conversation about the Faith & Ferment book be impermissible in an employment context?
The preoccupation of the examiner with Bible studies on company premises has been considered in the forepart of this opinion as an issue of religious freedom. It arises again as an issue of freedom of speech from the order of the examiner prohibiting "soliciting or suggesting participation in Bible studies." This is so patently unconstitutional as to require no other comments beyond identifying it.
2. Finding: dismissing Carnahan,
The right of this employer to establish the work environment, including mandatory Bible study for managerial employees and voluntary sessions for other employees, has been extensively discussed in Part II. The interrogation of Carnahan and, to
3. Finding: refusing to promote Carnahan,
This issue has been fully considered in foreparts of this opinion with respect to Owens' right to have managers who will be compatible with the basic company policy to be a "discipleship." Unique, however, is the examiner's reaching into conversations during a social engagement between Steven Bruhjell and the Owens family and an at-home conversation between Bruhjell and Vice President Larson to find a religion-related violation of the statute. Unlike Carnahan and Larsen, moreover, Bruhjell resigned and was not dismissed.
4. Finding: refusing the applications for employment of Katherine Lamannsky,
Given the apparently widespread incidents of such living arrangements today, the inquiry by Owens is not surprising. Owens did not wish to, and is not required to, "subsidize" criminal behavior. The extraordinary response of the examiner to this defense is that as a matter of legislative intent, the subsequently enacted Human Rights Act "superseded" the criminal statute, a judgment that will come as a surprise to those legislators who have regularly but unsuccessfully authored bills to repeal the fornication statute. The examiner may as well have asserted the repeal of Minn.Stat. § 144.651 (1984), the Bill of Rights for Patients and Residents of Health Care Facilities, which by subdivision 28 provides:
(Emphasis supplied.) This statute, like the fornication statute, grants marital status protection in sexual relations only to married persons.
The examiner's effort to find discrimination in this refusal of employment demonstrates again his unreasonable interpretation and application of the Human Rights Act, for his determination that the criminal statute was superseded by a civil statute is plainly wrong. As we held in Target Stores, Inc., 279 Minn. at 473-74, 156 N.W.2d at 925, "[t]he principle of implied statutory repeal is not favored"; rather, as stated in State v. Sobelman, 199 Minn. 232, 236, 271 N.W. 484, 486 (1937):
It is preposterous to impose sanctions upon an employer, particularly this employer, who refused to employ persons whose conduct constitutes criminal misbehavior.
5. Finding: denying Miriam Cameron
Cameron, a club member and not an employee, as the examiner found, initiated a conversation in the office of Crevier about a book that she had written, the contents of which were contrary to Crevier's religious beliefs. There ensued a vigorous and "strident" disputation on religious grounds which disturbed, "overwhelmed," and "totally demoralized" her. "The problem," the examiner said, "is not with what [Crevier] said, but with how he said it." The examiner held that it was "treatment so at variance with what would reasonably be anticipated absent discrimination * * * that discrimination is the probable explanation for [Crevier's] conduct." Just as she came to Crevier's office on her own initiative, Cameron was not a captive but free to end the discussion by simply departing. It might well be that Crevier's role was not winsome, but it is utterly absurd to hold that it was a discriminatory denial of the right to services of the club and to order a refund of Cameron's initial membership fee. It is noteworthy, moreover, that Cameron remained as a club member for 4 or 5 months following this episode, which would seem to indicate that the event was not as troublesome as she asserted.
To hold, as here, that a vigorous and robust debate on a religious subject, however controversial, may by statute or administrative order be prohibited or made subject to a monetary penalty is a most flagrant denial of freedom of speech.
The Minnesota Constitution as Exclusive Basis of Decision
The constitutional issues raised in this case focus on the Minnesota Constitution as the adequate and independent basis for decision, to the exclusion of the United States Constitution. A current exposition of this emerging constitutional practice by Minnesota lawyers Terrence Fleming and Jack Nordby in 7 Hamline L.Rev. 51 (1984), The Minnesota Bill of Rights: Wrapt in the Old Miasmal Mist, clarifies the power of state courts to interpret and apply their own constitutional Bill of Rights and the specific criteria that should govern the decision whether the state's Bill of Rights mandates departure from the minimum standards of the federal constitution.
It is axiomatic that a state may interpret its state constitution to offer other and more — but not less — protection of individual rights than does the federal constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). State courts are, and should be, the first line of defense for individual liberties within the federalist system. The Minnesota Bill of Rights, indeed, antedated the adoption of the fourteenth amendment, by which the federal
This does not mean, however, that the state should in all circumstances construe its own constitution more expansively than the federal constitution, particularly where their comparable provisions are textually identical, for the decisions of the United States Supreme Court inherently are of persuasive, although not dispositive, force. As Justice Hans Linde, in State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983), urging that as a matter of judicial economy a state court should always consult dispositive state grounds for decision, without needless resort to federal grounds for decision, responded to a non sequitur contention that the United States Supreme Court's decisions under substantially identical texts "not only deserve respect but presumptively fix its correct meaning also in state constitutions":
Id. at 270, 666 P.2d at 1322.
A strong basis for an independent interpretation, however, may be presented where invocation of the Minnesota Bill of Rights, as in this case, concerns conditions unique to this state. As Fleming and Nordby suggest:
7 Hamline L.Rev. at 76 (footnotes omitted).
The basis for a different and more expansive interpretation is stronger yet where the provisions on the same subject are textually different. Unlike article 1, section 16, supra note 21, the first amendment to the Constitution of the United States more cryptically provides:
Fleming and Nordby aptly observe concerning this difference:
7 Hamline L.Rev. at 67-68 (footnotes omitted).
Chief Justice Samuel J. Roberts of the Pennsylvania Supreme Court, now retired, in a speech delivered a year ago before members of the Wyoming bar and representatives of the University of Wyoming College of Law (reprinted in 17 IJA Report of the Institute of Judicial Administration No. 2 (Winter 1985)) declared state court reliance on the adequate and independent state grounds for decision "the most significant development in federal-state relations over the last decade"; it reduces the burden of our federal court system, but even more importantly, lends "stability, integrity, and finality to state court decisions and thus makes for a better court system — a system governed, controlled, and supervised by state court adjudications, for state judges, practitioners, and litigants." (Emphasis in original.) Discussing several cases in which state courts had undertaken to rely exclusively on their own constitutions but which had been nonetheless reviewed by the United States Supreme Court, Justice Roberts points out that "where a state court intends to rest a decision on state law, the state court in its opinion must clearly and specifically articulate that its decision is based exclusively on state law and must disclaim even the citation to analogous federal cases." (Emphasis added.) For that reason, this dissenting opinion neither cites federal cases on freedom of speech and religion nor responds to those cited in the majority opinion.
Mindless antipathy of one person toward another of different race, religion, gender, or marital status is repugnant to anyone who claims to be civilized. History is replete with evidence of its destructive effect on the lives of people occupying the close quarters of this planet. Simply in economic terms, the denial of the opportunity to employ or be employed solely because of such antipathies bears a high cost to both individuals and the state itself.
The objectives of the Human Rights Act are, therefore, salutary. Legislation, however, as demonstrated in this case, can be repressive if not administered with reason and consistent with constitutionally-guaranteed civil liberties.
The numerosity and nature of the state's complaints against Owens obscures an important and undisputed fact of which the majority opinion takes note: Owens' business employs persons of different races and religions — Catholics, Jews, and Protestants of various denominations — or no religion, men and women, and single, married, and divorced persons. The acts of alleged discrimination, moreover, were not motivated by Owens' hatred of a person of religion or status different from his own; indeed, by his own religious convictions he is constrained by the great commandment to love his neighbor.
The posture in which these complaints against Owens were adjudicated is one for which the Human Rights Act was not intended. The examiner himself took some note of this:
There is, regrettably, in this case a latent spirit of indifference, if not hostility, to deeply-held religious beliefs, contrary to what I believe is the spirit of the people of Minnesota.
YETKA, Justice (dissenting).
Prior to receiving the dissent of Justice Peterson, I had written a special concurring opinion reluctantly accepting the majority decision, but expressing strong reservations. After reading Justice Peterson's scholarly and eloquent dissent, however, I join him in dissenting.
There is some controversy on how much significance could be attached to questions by defendants of female employees as to their marital status and whether they have their husbands' or fathers' consents to seek employment. I wish to make it clear that I do not believe it proper under any circumstances for an employer to ask for such consent. Women's rights are too far advanced to turn the clock back to the 19th century. In my opinion, they are entitled to equal protection in seeking employment under both the federal and state constitutions whether an ERA amendment is adopted or not. Such a line of questioning is totally improper under the statute and the constitutions.
However, while employers have certain responsibilities under this statute, it does not totally abrogate their rights to obtain background information on prospective employees. The majority opinion states that, "[w]hile we recognize that in order to make informed and intelligent employment decisions, employers must be permitted some leeway to question an employee or applicant about his or her background, upbringing and perspective." I'm not sure, however, that that is sufficient guidance or reassurance to employers. I am fearful that the opinion will be too broadly interpreted. While individual preferences might differ as to what characteristics should exist for a good employee, certain qualifications appear to be recognized universally as desirable; for example, is the prospective employee in good physical and mental health; is he/she likely to be honest and a conscientious worker; can he/she get along with fellow employees; is he/she likely to get to work on time; be free of frequent absences and perform his/her job cheerfully, efficiently and diligently? The fact is that there is a high correlation between being a good practicing Christian and fulfilling each of the foregoing qualifications.
If an affluent employer wants to spend the money to do so, he can easily, quietly have an investigation made of all prospective applicants and learn all he wants to know about that person or persons. A small or marginal employer, on the other hand, may not be able to afford such an investigation. Yet, the consequences of hiring an employee are, undoubtedly, more dire and harmful to the small employer than the large. Therefore, the act that claims as its purpose the prevention of certain discriminations may, in fact, result in quite another discrimination against certain employers.
Here is an act which has as its stated purpose the elimination of discrimination in employment. It has been rightly invoked to protect minorities — in color, gender, and religion. Yet, it would discriminate against the majority religion in the United States since the nation's founding, namely, Christianity. This decision would deny a Christian the right to practice his belief in the marketplace. It would deny an employer the right to basic information about a prospective employee that affects not only the well-being of the employer and his business, but also that of the prospective employee's fellow employees. I find the findings so repugnant that it reaches the stage of being ridiculous. True, the majority opinion points out that opinions of the United States federal courts would suggest that you may have a decision upholding one person's constitutional rights that effectively deny another person his or her rights. That may be so, but where an act can be interpreted to prevent such a delicate balancing act, why shouldn't it be so read?
As one of the original authors of fair employment practices legislation in the
I, therefore, join Justice Peterson in finding that, under the Minnesota Constitution, defendants' constitutional rights are violated by the Minnesota Human Rights Act. The proper disposition of this case perhaps should be to remand to the hearing examiner; however, I agree with Justice Peterson that the case has punished defendants far beyond whatever actions were taken on their part. There comes a point where enough is enough, and the case ought to be terminated here. I, therefore, would reverse.
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