SNEED, Circuit Judge:
Townley Manufacturing Company appeals the district court's injunction halting its mandatory devotional services at its Eloy, Arizona plant. We substantially affirm the district court, but remand to permit the framing of its injunction more narrowly.
FACTS AND PROCEEDINGS BELOW
Townley Manufacturing Company (Townley) is a closely held corporation organized under the laws of Florida. It manufactures mining equipment. It was founded in 1963 by J.O. (Jake) and Helen Townley, who still own about 94% of the stock. When they founded the company, Jake and
Townley reflects its founders' covenant with God in several ways. For example, the company encloses a Gospel tract in every piece of outgoing mail; it prints Biblical verses on all company invoices, purchase orders, and other commercial documents; it gives financial support to various churches and missionaries; and, of particular importance to this case, it holds a devotional service once a week during work hours.
Townley's Florida plant has had weekly devotional services since its inception. They typically last from thirty to forty-five minutes, and may include prayer, thanksgiving to God, singing, testimony, and scripture reading, as well as discussion of business related matters. Townley required all employees to attend the weekly services; failure to attend was regarded as equivalent to not attending work.
In November 1979, Townley hired Louis Pelvas as a machinist in its Eloy plant. At that time there were no devotional services conducted at the Eloy plant. In December 1982, Townley gave its employees an employee handbook, which stated the company's policies and rules. Under the heading of company rules, the handbook stated: "All employees are required to attend the non-denominational devotional services each Tuesday. Employees are paid for their time while attending these services." Pelvas read the handbook and signed a statement agreeing, inter alia,"to abide by all the requirements and policies stated within that handbook, as a condition of my continued employment with Townley.... I recognize that failure on my part to keep this agreement may result in my dismissal from the company." Excerpt of Record, tab 49.
Townley did not institute devotional services at its Eloy plant until April 1984. Pelvas attended the services without complaint only until June 1984, when he asked to be excused from the services because he was an atheist. His supervisor told him that attendance was mandatory. The supervisor also stated that Pelvas could sleep or read the newspaper during the services. Pelvas continued to attend the services, but in October 1984 he filed a religious discrimination charge with the Equal Employment Opportunity Commission. In December 1984, Pelvas left the company. Pelvas states that he was constructively discharged; Townley says that Pelvas refused to accept an offer of transfer to another plant.
In July 1986, the EEOC filed this action against Townley. The EEOC charged that Townley violated section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), (1) by requiring its employees to attend devotional services, (2) by failing to accommodate Pelvas' objection to attending the services, and (3) by constructively discharging Pelvas. In May 1987, the district court granted the EEOC's motion for summary judgment on the first two issues, and issued a permanent injunction prohibiting Townley from continuing the mandatory devotional services at its Eloy plant. The court denied summary judgment on the constructive discharge issue. EEOC v. Townley Eng'g & Mfg. Co., 675 F.Supp. 566 (D.Ariz.1987). Townley appealed the grant of summary judgment to this court.
The district court had jurisdiction under 42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. §§ 1331 and 1343. Since the order appealed is an interlocutory order granting an
STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo. We affirm if the record, read in the light most favorable to the nonmoving party, reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. International Ass'n of Machinists v. Aloha Airlines, Inc., 790 F.2d 727, 730 (9th Cir.), cert. denied, 479 U.S. 931, 107 S.Ct. 400, 93 L.Ed.2d 354 (1986).
THE REACH OF TITLE VII
Townley argues both that Title VII was not intended to apply to this employment policy, and that the proposed application of Title VII would violate the Free Exercise Clause of the First Amendment. It is clear that applying Title VII to the devotional services "would give rise to serious constitutional questions." See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). Therefore, we may not find it applicable unless there is an "affirmative intention of Congress clearly expressed" that it should be so applied. Id.; see EEOC v. Fremont Christian School, 781 F.2d 1362, 1365 (9th Cir.1986); EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1276 (9th Cir.1982).
We hold that Congress did clearly intend for Title VII to cover Townley's mandatory devotional services. Sections 701(j) and 703(a) of Title VII make clear that requiring employees over their objections to attend devotional services cannot be reconciled with Title VII's prohibition against religious discrimination. Furthermore, we hold that Congress did not intend section 702's exemption for religious corporations to shield corporations such as Townley.
A. Sections 701(j) and 703 of Title VII
1. Discrimination on the Basis of Religion in General
As originally enacted, Title VII of the Civil Rights Act of 1964 simply prohibited employment discrimination on the basis of religion.
42 U.S.C. § 2000e(j). "The intent and effect of this definition was to make it an unlawful employment practice under § 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977). Accommodation by the employer to the employee's religious practices was made a statutory obligation.
2. Order of Proof
We have read sections 703(a) and 701(j) as creating a two-part framework in religious practice cases. First, the plaintiff must establish a prima facie case of religious discrimination. We have elaborated on the requirements of the plaintiff's burden in other opinions. We need not review the requirements in detail here, because Townley does not contest that the EEOC has met them.
Townley admits that it has made no effort to accommodate Pelvas' objections to the services. It argues that Title VII does not require accommodation because (1) any attempt at accommodation would have caused it "undue hardship," and (2) Pelvas "waived the accommodation requirement when he voluntarily consented to attending the devotional services at the time he executed the signature page of the Employee Handbook agreeing to comply with all the policies of Townley," Appellant's Reply Brief at 8-9.
The language from Anderson quoted above might be read to imply that an employer cannot bring up "undue hardship" unless it first proves that it made good faith efforts to accommodate the employee's practice. See also American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986) ("it is incumbent upon the employer to undertake some initial steps to reach a reasonable accommodation of the particular religious belief at issue"); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 405-06 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). However, it is
Pelvas proposed that Townley accommodate his religious objections to the devotional services by excusing him from attendance. The district court found that this accommodation would have caused Townley no undue hardship. It stated, "Excusing Pelvas from the mandatory devotional services would have cost Townley nothing in the operation of its business activities, and would not have disrupted other workers." 675 F.Supp. at 568. We agree.
Townley argues that the district court should have considered the spiritual hardship the accommodation would have caused. We acknowledge that spiritual costs can exist. Congress has so recognized by its enactment of sections 702 and 701(e).
The difficulty is that under the statute the employer must show that the accommodation of a religious practice would cause "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j) (emphasis added). To assert that excusing Pelvas from the services would have inflicted spiritual costs on the company, or on Jake and Helen Townley is not enough. Cf. Burns, 589 F.2d at 407 (proof of coworkers'"unhappiness with a particular accommodation" is not enough to show undue hardship). Townley, the corporate entity, must connect the asserted spiritual hardship to an adverse impact on the conduct of the business. "A claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of `actual imposition on coworkers or disruption of the work routine.'" Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) (quoting Burns, 589 F.2d at 406-07); see also
It follows that Townley's attempts to link the alleged spiritual hardship to the conduct of the business must fail. It is not enough to argue that Townley was founded to "share with all of its employees the spiritual aspects of the company," Appellant's Brief at 27, and that the proposed accommodation would have a "chilling effect" on that purpose. To "chill" its purpose is irrelevant if it has no effect on its economic well-being.
It is true, of course, that Title VII does not ignore entirely the spiritual objectives of employers. Section 702 of Title VII expressly excludes religious corporations, associations, educational institutions, and societies from Title VII's prohibition against religious discrimination. 42 U.S.C. § 2000e-1. It is likely that Congress intended section 702 to be the sole recourse of corporations professing to be religious.
However, even if this is not so, any effort in this case by Townley to show that its religious nature makes any accommodation of the religious belief of Pelvas an "undue hardship" under section 701(j) must fail. At most, Townley has stated that the ease with which it spreads its word to its employees would be slightly reduced were it to accommodate Pelvas. But "[u]ndue hardship means something greater than hardship." Anderson, 589 F.2d at 402. Pelvas was allowed to listen to the radio and read at the services, and the Eloy plant operated for eleven years without requiring its employees to attend services. This hardly provides an adequate foundation for asserting that excusing Pelvas would have imposed undue spiritual hardship on Townley's business.
Nor does the fact that the services also contain "business discussions" alter this conclusion. Townley argues that these business discussions cannot be separated from the rest of the service. Its only support for this assertion is Jake and Helen Townley's statement that they cannot separate God from their business. It does not argue that the attempt to separate the secular aspects of the service from the religious would cause hardship to coworkers or disrupt the work routine. Stripped to its core, then, this argument is the one considered and rejected above — that the accommodation would cause spiritual hardship to Townley. Even if undue hardship to Townley's business could be supplied by establishing a high degree of "spiritual hardship," a rather doubtful proposition, Townley has failed to establish that level of hardship.
Townley also argues that it did not have to accommodate Pelvas' objections to the services because Pelvas waived his rights to accommodation by signing a page of the Employee Handbook which committed him to complying with Townley's policies. The Supreme Court has stated that "there can be no prospective waiver of an employee's rights under Title VII." Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974); see also Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C.Cir.1979); McClure v. Salvation Army, 460 F.2d 553, 557 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972); cf. J.I. Case Co. v. NLRB, 321 U.S. 332, 337, 64 S.Ct. 576, 580, 88 L.Ed. 762 (1944). There are exceptions to this general rule, see, e.g., Alexander, 415 U.S. at 52, 94 S.Ct. at 1022 (voluntary settlements); Bauman v. United States District Court, 557 F.2d 650, 658 n. 9 (9th Cir.1977) (plaintiff ineligible for class
B. The "Religious Corporation" Exemption of Section 702
Townley next argues that it is a "religious corporation" exempt from Title VII by the terms of section 702, which states in part:
42 U.S.C. § 2000e-1. The district court rejected this argument, as do we.
A brief review of the relevant legislative history is necessary. In 1963, the House Judiciary Committee drafted H.R. 7152, the bill which was the basis of much of the Civil Rights Act of 1964. Title VII of the bill included a section that stated the title would not apply to a "religious corporation, association, or society." The committee report accompanying the bill did not elaborate on the section. However, the section was the subject of some debate in the House after Representative Purcell proposed amending H.R. 7152 to allow an educational institution to discriminate on the basis of religion if the institution was wholly or partly supported or managed "by a particular religion or by a particular religious corporation, association, or society," or if the institution's curriculum was "directed toward the propagation of a particular religion." EEOC Legislative History of Titles VII and XI of the Civil Rights Act of 1964, at 3197 (1968).
The debate on this proposal is relevant because an issue in the debate was whether such institutions were already protected by the "religious corporation" exemption. The consensus was that they were not protected if they were merely "affiliated" with a religious organization. For example, Representative Celler, the chairman of the Judiciary Committee and one of the drafters of the bill, was asked whether a church-supported orphanage would already be covered by the bill. He said, "If it is a wholly church supported organization, that is, a religious corporation that comes under [then] section 703." Id. at 3204 (emphasis added).
Although this debate is far from comprehensive, it is the only useful legislative history we have on this section. Section 702 was amended by the Senate in 1964, and amended again by Congress in 1972, but the debate on the amendments sheds no more light on the definition of religious corporations.
As the district court noted, the case law on this question is not very helpful. In most cases, the defendant is clearly a "religious corporation, association, educational institution, or society" within the meaning of section 702 of the statute. See, e.g., EEOC v. Fremont Christian School, 781 F.2d 1362, 1364 (9th Cir.1986) (defendant was "private educational institution ... wholly owned and operated by the Assembly of God church"); EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1274 (9th Cir.1982) (defendant was "nonprofit corporation ... affiliated with the Seventh-Day Adventist Church" engaged in publishing "religiously oriented material"); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1164-65 (4th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) (defendant was church); EEOC v. Mississippi College, 626 F.2d 477, 478 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981) (defendant was college owned and operated by convention of Southern Baptist churches). These cases, like the legislative history, demonstrate that the central function of section 702 has been to exempt churches, synagogues, and the like, and organizations closely affiliated with those entities.
At least one case has tested the limits of this exemption. In Fike v. United Methodist Children's Home, 547 F.Supp. 286 (E.D.Va.1982), aff'd, 709 F.2d 284 (4th Cir.1983), the plaintiff alleged that the Children's Home dismissed him from his position as director because it wanted a Methodist minister in the position. The court found that the Children's Home "was founded by and over the years has had close ties with the Methodist Church." Id. at 288. The Methodist Church became worried that the Home was becoming too secular, and as a result recommended that the Home hire a Methodist minister as director "in order to bring the Home back to the Church structure." Id. at 289. Despite these facts, the court refused to find that the Home was a "religious corporation" within the meaning of section 702. After examining the purported religious and secular characteristics of the Home at length, id. at 289-90, the court stated:
Id. at 290.
Like the Fike court, we shall not attempt to outline section 702's precise scope. The effort to do so would fail. Rather, each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation's purpose and character are primarily religious. Only when that is the case will the corporation be able to avail itself of the exemption.
When viewed together, we have no difficulty in holding that these characteristics indicate that Townley is primarily secular. We do not question the sincerity of the religious beliefs of the owners of Townley. Nor do we question that they regard the conduct of their company as subject to a compact with God. We merely hold that the beliefs of the owners and operators of a corporation are simply not enough in themselves to make the corporation "religious" within the meaning of section 702. We therefore agree with the district court that Townley is not exempt under section 702 from Title VII's prohibition against religious discrimination.
FREE EXERCISE CLAUSE
We now address Townley's contention that this application of Title VII violates its rights under the Free Exercise Clause of the First Amendment.
Townley urges this court to hold that it is entitled to invoke the Free Exercise Clause on its own behalf. Because Townley is merely the instrument through and by which Mr. and Mrs. Townley express their religious beliefs, it is unnecessary to address the abstract issue whether a for profit corporation has rights under the Free Exercise Clause independent of
To determine whether the application of Title VII to this employment policy violates Mr. and Mrs. Townley's Free Exercise rights, we must weigh three factors: "(1) the magnitude of the statute's impact on the exercise of a religious belief; (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief; and (3) the extent to which recognition of an exemption from the statute would impede objectives sought to be advanced by the statute." EEOC v. Fremont Christian School, 781 F.2d 1362, 1367 (9th Cir.1986); see United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) ("The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.").
The Townleys state that the Bible and their covenant with God require them to share the Gospel with all of their employees. The EEOC does not dispute the sincerity of this belief, and in any event "[c]ourts are not arbiters of scriptural interpretation." Thomas v. Review Bd., 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981). We therefore accept that ending mandatory attendance at the devotional services would have an impact on the Townley's religious practice. But we do not believe that the impact would be unreasonable and extreme. The EEOC does not seek to enjoin the services altogether; rather, it only objects to their mandatory nature. As the EEOC points out, the Townleys would still be able to share the Gospel with their employees.
The strength of the government's interest in eradicating discrimination through Title VII is also clear. We have stated that "Congress' purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions." Pacific Press, 676 F.2d at 1280. Protecting an employee's right to be free from forced observance of
Finally, we must consider whether the elimination of mandatory attendance at the devotional services constitutes an application of Title VII that is the "least restrictive means" of furthering the state's goal. We have said that this is "the critical aspect of the free exercise analysis." Callahan v. Woods, 736 F.2d 1269, 1272 (9th Cir.1984). Callahan teaches that we measure the importance of a
Id. at 1272-73 (citation omitted). Here, there is no doubt that to force the employee Pelvas to attend Townley's devotional services would seriously impede Title VII's goal.
The rights of the Townley's under the Free Exercise Clause do not alter this conclusion. We recognize that allowing a statute to limit a constitutional right alters the normal relationship between a statutory right and a constitutional one. Nevertheless, it is settled that the right to religious practice (unlike the right to religious belief) may be limited by a statute if "it is essential to accomplish an overriding governmental interest." United States v. Lee, 455 U.S. 252, 255, 102 S.Ct. 1051, 1054, 71 L.Ed.2d 127 (1982); see Braunfeld v. Brown, 366 U.S. 599, 603-04, 81 S.Ct. 1144, 1145-46, 6 L.Ed.2d 563 (1961); Callahan v. Woods, 736 F.2d 1269, 1272-73 (9th Cir.1984); Scott v. Rosenberg, 702 F.2d 1263, 1273-74 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).
Any reluctance to apply this teaching is lessened by the nature of the conflict in this case. Both the Townleys and Pelvas seek to pursue a religious practice. Where the practices of employer and employee conflict, as in this case, it is not inappropriate to require the employer, who structures the workplace to a substantial degree, to travel the extra mile in adjusting its free exercise rights, if any, to accommodate the employee's Title VII rights.
The transcendent principle in cases of this sort is accommodation. Where the religious practices of employers, such as the Townleys, and employees conflict, Title VII does not, and could not, require individual employers to abandon their religion. Rather, Title VII attempts to reach a mutual accommodation of the conflicting religious practices. This is consistent with the First Amendment's goal of ensuring religious freedom in a society with many different religions and religious groups.
Therefore, we hold that, as applied in this case by the district court, Title VII's requirement of religious accommodation does not unduly burden the Townleys' free exercise rights save in one respect. The district court simply enjoined all mandatory services at Townley's Eloy plant. We believe the district court's decree was too broad. The goal of Title VII is served by protecting only those who have religious objections to the services. To protect those who do not have such objections is not necessary. Nor do we think that to require that the service be voluntary as to all employees, whether that is their wish or not, is necessary to further the purposes of Title VII. Following this decision, it is not likely that fear of intimidation will suppress requests to be excused on religious grounds. Obviously such requests must be honored by both Townley and the Townleys. Therefore, on remand the district court should frame the injunction accordingly.
We affirm in part and reverse and remand in part.
NOONAN, Circuit Judge, dissenting:
In the performance of its mission in this case, the EEOC is asserting a position that, like the Townley Manufacturing Company's, must find its roots in the First Amendment. The right to believe necessarily implies the right not to believe. Conscience cannot be governmentally coerced. The Free Exercise Clause embraces the atheist with the orthodox. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). To exempt an activity from governmental regulation because of its religious nature is to accord a benefit to religion. Corporation of Presiding Bishop v. Amos, ___ U.S. ___, ___, 107 S.Ct. 2862 at 2874, 97 L.Ed.2d 273 (1987) (O'Connor, J., concurring). The EEOC could not exempt the Townley Manufacturing Company to the disadvantage of Pelvas if the effect of exemption were to coerce Pelvas to practice the company's religion or to give up his own.
No such showing of coercion has been made. According to Pelvas he was explicitly told that if he attended the prescribed meetings he could wear ear plugs and read a book or sleep. Wearing ear plugs, he was not exposed to hearing a word of doctrine subversive of his atheism. Reading a book or sleeping, he was not participating in any form of worship.
One can readily imagine gatherings of worshippers where merely entering the church or crossing the temple door in their company would be a symbolic act committing one to worship. Compulsion to attend such gatherings would be deeply offensive to the conscience. One can readily imagine schoolchildren summoned to an auditorium and subjected to religious propaganda. Compulsion of the children would be equally obnoxious to religious freedom. But the gatherings to which Pelvas has objected took place on company property during company time; and he was no child but a mature man. Presence at the gathering was not a religious act nor, as far as the record shows, a symbolic association with worship nor subjection to a religious message. Indeed what Pelvas was permitted to do was the antithesis of worship, the opposite of indoctrination. He was allowed to disassociate himself in the most public way from the devotional services that were conducted. He was allowed to turn off and shut out the inspirational message. If he had been discharged or penalized or even ostracized for such behavior he and the EEOC would have cause for complaint. But in fact there has been no showing that such acts as he was permitted to perform, contemptuous as they were of the services, have been or would have been the subject of discipline or disadvantage to Pelvas. The Townley Manufacturing Company has already accommodated Pelvas' conscientious unwillingness to participate in its services.
The court appears to gloss § 701(j) to mean that the employer must accept the employee's proposed accommodation unless the employee's proposal causes undue hardship. That is not the law: "By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.... Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory
Accommodation has been accomplished but has not been acknowledged. Ignoring what Townley has allowed, the court declares, ironically or paradoxically, "The transcendent principle in cases of this sort is accommodation." Has accommodation ever been raised to such an eminence? Transcendent principles are those that rise above the here and now. Transcendent principles link human beings to shared goods of the spirit and their transtemporal destiny. Transcendent principles in the context of this case is the right of each person to worship God as his or her conscience determines.
That transcendent principle is at the center of the Religious Clauses embodied in the First Amendment to the Constitution. The First Amendment, guaranteeing the free exercise of religion to every person within the nation, is a guarantee that Townley Manufacturing Company rightly invokes. Nothing in the broad sweep of the amendment puts corporations outside its scope. Repeatedly and successfully, corporations have appealed to the protection the Religious Clauses afford or authorize. Amos, supra (1987); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). Just as a corporation enjoys the right of free speech guaranteed by the First Amendment, Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), so a corporation enjoys the right guaranteed by the First Amendment to exercise religion.
The First Amendment does not say that only one kind of corporation enjoys this right. The First Amendment does not say that only religious corporations or only not-for-profit corporations are protected. The First Amendment does not authorize Congress to pick and choose the persons or the entities or the organizational forms that are free to exercise their religion. All persons — and under our Constitution all corporations are persons — are free. A statute cannot subtract from their freedom.
If it were otherwise, we would be back to the bad old days when state governments insisted that religious organizations incorporate in accordance with state law if they wanted to enjoy the benefits made available by the state. E.g., Barnes v. First Parish of Falmouth, 6 Mass. 401 (1810). Barnes attempted to force state incorporation upon Baptists who believed that incorporation was unChristian surrender to the state. See 2 McLaughlin, New England Dissent 1630-1833 1088 (1971). Barnes was possible only in a jurisdiction that frankly recognized a church established by the state. The Barnes court could insist on the form prescribed by the state because the court could celebrate "this religion, as understood by Protestants ... [which] was by the people established as a fundamental and essential part of their constitution." Barnes, supra, at 406. Such establishment, such forcing of a governmentally chosen form upon religious activity, is incompatible with the Religious Clauses.
True, Congress may create a bright line and exempt from regulation all of the nonprofit activity of religious corporations. Amos, supra. The reason is that regulation would chill religious organizations if they had to speculate which of their nonprofit activities a court would label religious. Id. at 2872-73 (Brennan, J., concurring). That a bright line may constitutionally be created does not mean that on a case-by-case basis other activities, asserted to be religious, may not be found to fall within the First Amendment's protection.
Amos did not pretend to decide whether the business activity of a religious corporation should be exempted, see id. at 2875 (O'Connor, J., concurring); and we do not face here the question unresolved in Amos. But we meet a parallel question: what exemption from governmental interference is required by the First Amendment as to the religious activity of a business corporation?
Secular men and women take secular values seriously. Men and women of the world believe that the world's business is important. When Congress elevates this business to a national priority it has been all too easy for officers of the government and even judges to ignore the countervailing command of the Constitution. In the Supreme Court the Constitution has been no shield for the spirit when Congress has ordained that the spirit must yield to secular needs.
Despite these lessons of history it remains possible to say that the Religious Clauses are unimpaired in what they require of civilized government. The weighing of the claims of Congress is not to be carried out with a tilt in favor of Congress. The result should not be foreordained by Congress choosing a secular value as overriding. The Free Exercise Clause requires solicitude for the religious values that are invaded.
Insensitive to its entry on sacred ground, the EEOC in this case has proceeded as though it had but to invoke the congressional mandate and all opposition should cease. The EEOC has had success in eliminating racial bigotry. It has proceeded in this case as though the defendant was simply one more racist bigot. The agency has suffered from the scotopia of a bureaucracy. The agency must indeed vindicate the claims of conscience subjected to religious discrimination. The agency must do so with the utmost respect for the religious claims upon which its action intrudes.
Respect for the religious beliefs of others is particularly difficult when one does not share these beliefs. Judges are no more immune than congressmen from prejudices that are not only officious and overt but subtle and latent and incline one to take less than seriously notions of religious belief that depart markedly from one's own or some assumed norm. The First Amendment is an effort, not entirely forlorn, to interpose a bulwark between the prejudices of any official, legislator or judge and the stirrings of the spirit.
The agency and the court appear to assume that there must be a sharp division between secular activity and religious activity. Such a sharp division finds nourishment
The undisputed facts are that Jake and Helen Townley made an agreement with God that their company would be "a faith-operated business whose primary purpose would be to share the Gospel of the Lord Jesus Christ and to remain completely dedicated to God's service." The integration of work and religious purpose that the Townleys and their company seek was captured centuries ago in exquisite devotional verse:
As part of the Townleys' covenant with God they agreed "to acknowledge God's blessing upon the business and his continued direction of the business and his use of the business." The fundamental purpose of their company is "to stand as a testimony to God's blessing to all persons who will operate their business according to Christian principles." In furtherance of that purpose the company conducts the services of which Pelvas complains.
For an agency of the government, or Congress, or a court to say that the Townleys are mistaken in their beliefs or that the Townley Manufacturing Company cannot have the purpose ascribed to it and shall not carry out the program of devotion it has set up is to make a theological judgment — a theological judgment fairly characterized as reflecting either a secularism skeptical of God's existence and power or a species of deism that radically isolates God from the world that believers believe God created and animates and directs. The First Amendment prohibits an agency of government, or Congress, or even a court, from imposing such a theological judgment to curb the free exercise of religion.
The Federal Appellate Courts and the Free Exercise Clause SUPREME COURT CASES * A. Decisions of the Supreme Court of the United States Sustaining Congressional Legislation Against A Claim That The Legislation Violated The Free Exercise Clause. VIOLATIVE OF FREE CASE CITATION CHALLENGED MATTER EXERCISE CLAUSELyng v. Northwest Indian 108 S.Ct. 1319 (1988) federal forest service no Cemetery Protective Assn. 99 L.Ed.2d 534 plans Bowen v. Roy 476 U.S. 693 (1986) federal welfare requirements no 106 S.Ct. 2147 90 L.Ed.2d 735 Goldman v. Weinberger 475 U.S. 503 (1986) federal military regulations no 106 S.Ct. 1310 89 L.Ed.2d 478 Alamo v. Secretary of 471 U.S. 290 (1985) federal labor statute no Labor 105 S.Ct. 1953 85 L.Ed.2d 278 Wayte v. United States 470 U.S. 598 (1985) federal conscription no 105 S.Ct. 1524 provision 84 L.Ed.2d 547 Bob Jones University v. 461 U.S. 574 (1983) federal tax provision no United States 103 S.Ct. 2017 76 L.Ed.2d 157 United States v. Lee 455 U.S. 252 (1982) federal tax provision no 102 S.Ct. 1051 71 L.Ed.2d 127
VIOLATIVE OF FREE CASE CITATION CHALLENGED MATTER EXERCISE CLAUSETrans World Airlines, 432 U.S. 63 (1977) federal antidiscrimination no Inc. v. Hardison 97 S.Ct. 2264 statute 53 L.Ed.2d 113 United States v. American 419 U.S. 7 (1974) federal tax provision no Friends Service Committee 95 S.Ct. 13 42 L.Ed.2d 7 Johnson v. Robison 415 U.S. 361 (1974) federal veterans' statute no 94 S.Ct. 1160 39 L.Ed.2d 389 Gillette v. United States 401 U.S. 437 (1971) federal conscription no 91 S.Ct. 828 provision 28 L.Ed.2d 168 United States v. Seeger 380 U.S. 163 (1965) federal conscription no 85 S.Ct. 850 provision 13 L.Ed.2d 733 Gara v. United States 340 U.S. 857 (1950) federal conscription no 71 S.Ct. 87 provision (affirmed by an equally 95 L.Ed. 628 divided court) United States v. Ballard 322 U.S. 78 (1944) federal mail fraud statutes no 64 S.Ct. 882 (as applied by 88 L.Ed. 1148 district ct) (reversed on other grounds, 329 U.S. 187) 67 S.Ct. 261 91 L.Ed. 181 (1946) Selective Draft Law Cases 245 U.S. 366 (1918) federal conscription no provision United States ex rel 194 U.S. 279 (1904) federal immigration no Turner v. Williams 24 S.Ct. 719 statute 48 L.Ed. 979 Mormon Church v. United 136 U.S. 1 (1890) federal disincorporation no States 10 S.Ct. 792 34 L.Ed. 478 Davis v. Beason 133 U.S. 333 (1890) territorial polygamy no 10 S.Ct. 299 statute (authored by 33 L.Ed. 637 Congress Reynolds v. United States 98 U.S. 145 (1878 term) territorial polygamy no 25 L.Ed. 244 statute (authored by Congress) B. Decisions of the Supreme Court of the United States Sustaining State Action Against A Claim That The Action Violated The Free Exercise ClauseBoard of Education 392 U.S. 236 (1968) state educational statute no v. Allen 88 S.Ct. 1923 20 L.Ed.2d 1060 Poulos v. New Hampshire 345 U.S. 395 (1953) city licensing ordinance no 73 S.Ct. 760 97 L.Ed. 1105 Zorach v. Clauson 343 U.S. 306 (1952) state educational statute no 72 S.Ct. 679 96 L.Ed. 954 In re Summers 325 U.S. 561 (1945) state bar provision no 65 S.Ct. 1307 89 L.Ed. 1795 Prince v. Massachusetts 321 U.S. 158 (1944) state employment statute no 64 S.Ct. 438 88 L.Ed. 645 Minersville School District 310 U.S. 586 (1940) state educational provision no v. Gobitis 60 S.Ct. 1010 (overruled, 319 U.S. 624) 84 L.Ed. 1375 63 S.Ct. 1178 87 L.Ed. 1628 (1943) Hamilton v. University of 293 U.S. 245 (1934) state educational no California 55 S.Ct. 197 regulation 79 L.Ed. 343 C. Decisions of the Supreme Court of the United States Invalidating State Action As A Violation of the Free Exercise ClauseJensen v. Quaring 472 U.S. 478 (1985) state licensing regulation yes 105 S.Ct. 3492 (affirmed by an equally 86 L.Ed.2d 383 divided court) Thomas v. Review Board 450 U.S. 707 (1981) state unemployment yes 101 S.Ct. 1425 statute 67 L.Ed.2d 624 McDaniel v. Paty 435 U.S. 618 (1978) state constitutional yes 98 S.Ct. 1322 provision 55 L.Ed.2d 593 Serbian Orthodox Diocese 426 U.S. 696 (1976) state judicial decree yes v. Milivojevich 96 S.Ct. 2372
VIOLATIVE OF FREE CASE CITATION CHALLENGED MATTER EXERCISE CLAUSE49 L.Ed.2d 151 Wisconsin v. Yoder 406 U.S. 205 (1972) state educational statute yes 92 S.Ct. 1526 32 L.Ed.2d 15 Sherbert v. Verner 374 U.S. 398 (1963) state unemployment yes 83 S.Ct. 1790 statute 10 L.Ed.2d 965 Torcaso v. Watkins 367 U.S. 488 (1961) state constitutional yes 81 S.Ct. 1680 provision 6 L.Ed.2d 982 Kedroff v. St. Nicholas 344 U.S. 94 (1952) state corporations statute yes Cathedral 73 S.Ct. 143 97 L.Ed. 120 Kunz v. New York 340 U.S. 290 (1951) city public worship yes 71 S.Ct. 312 ordinance (speech grounds) 95 L.Ed. 280 Marsh v. Alabama 326 U.S. 501 (1946) state trespass statute yes 66 S.Ct. 276 90 L.Ed. 265 Tucker v. Texas 326 U.S. 517 (1946) state trespass statute yes 66 S.Ct. 274 90 L.Ed. 274 Follett v. McCormick 321 U.S. 573 (1944) city license ordinance yes 64 S.Ct. 717 88 L.Ed. 938 West Virginia State Board 319 U.S. 624 (1943) state educational yes of Education v. Barnette 63 S.Ct. 1178 regulation 87 L.Ed. 1628 Murdock v. Pennsylvania 319 U.S. 105 (1943) state licensing ordinance yes 63 S.Ct. 870 87 L.Ed. 1292 Jones v. Opelika 319 U.S. 103 (1943) city licensing ordinance yes 63 S.Ct. 890 87 L.Ed. 1290 Cantwell v. Connecticut 310 U.S. 296 (1940) state solicitation statute yes 60 S.Ct. 900 84 L.Ed. 1213 U.S. COURT OF APPEALS D. Decisions of the United States Courts of Appeals Sustaining Congressional Legislation Against A Claim That the Legislation Violated The Free Exercise ClauseUnited States v. Slabaugh 848 F.2d 113 (8th Cir.1988) federal marshal's regulation no Hernandez v. Commissioner 819 F.2d 1212 (1st Cir. federal tax provision no of Internal Revenue 1987) Nelson v. I.R.S. 796 F.2d 164 (6th Cir.1986) federal tax provision no United States v. Allen 760 F.2d 447 (2d Cir.1985) federal property statute no Volunteers of America v. 752 F.2d 345 (8th Cir.1985) federal agency order no N.L.R.B. United States v. Rush 738 F.2d 497 (1st Cir.1984) federal drug statute no Denver Post v. N.L.R.B. 732 F.2d 769 (10th Cir. federal agency order no 1984) St. Elizabeth Community 708 F.2d 1436 (9th Cir. federal labor statute no Hospital v. N.L.R.B. 1983) Wilson v. Block 708 F.2d 735 (D.C.Cir.1983) federal agency plans no United States v. Middleton 690 F.2d 820 (11th Cir. federal drug statute no 1982) Tressler Lutheran Home v. 677 F.2d 302 (3d Cir.1982) federal agency order no N.L.R.B. E.E.O.C. v. Pacific Press 676 F.2d 1272 (9th Cir. federal employment statute no 1982) N.L.R.B. v. St. Louis Christian 663 F.2d 60 (8th Cir.1981) federal agency order no Home E.E.O.C. v. Southwestern 651 F.2d 277 (5th Cir.1981) federal employment statute no Baptist E.E.O.C. v. Mississippi College 626 F.2d 477 (5th Cir.1980) federal employment statute no Sequoyah v. T.V.A. 620 F.2d 1159 (6th Cir. federal dam project no 1980) United States v. Holmes 614 F.2d 985 (5th Cir.1980) federal tax provision no Proffitt v. Ciccone 506 F.2d 1020 (8th Cir. federal prison regulations no 1974) United States v. Huss 482 F.2d 38 (2d Cir.1973) federal contempt decree no Christian Echoes v. United 470 F.2d 849 (10th Cir. federal tax provision no States 1972)
VIOLATIVE OF FREE CASE CITATION CHALLENGED MATTER EXERCISE CLAUSESmilow v. United States 465 F.2d 802 (2d Cir.1972) federal contempt decree no (vacated on other grounds, 409 U.S. 944 93 S.Ct. 268 34 L.Ed.2d 215 (1972)) McClure v. Salvation Army 460 F.2d 553 (5th Cir.1972) federal employment statute no United States v. Spears 443 F.2d 895 (5th Cir.1971) federal drug statute no United States v. Wilson 440 F.2d 382 (8th Cir.1971) federal conscription provision no United States v. Reeb 433 F.2d 381 (9th Cir.1970) federal conscription provision no Hearde v. Commissioner 421 F.2d 846 (9th Cir.1970) federal tax provision no O'Brien v. Blackwell 421 F.2d 844 (5th Cir.1970) federal prison regulations no Leary v. United States 383 F.2d 851 (5th Cir.1967) federal drug statute no (reversed on other grounds, 395 U.S. 6 89 S.Ct. 1532 23 L.Ed.2d 57 (1969)) Application of Georgetown 331 F.2d 1000 (D.C.Cir. federal judicial order no 1964) Otten v. Staten Island Rapid 229 F.2d 919 (2d Cir.1956) federal labor regulation no Transit Mitchell v. Pilgrim Holiness 210 F.2d 879 (7th Cir.1954) federal labor regulation no Church Cannon v. United States 181 F.2d 354 (9th Cir.1950) federal conscription provision no Roodenko v. United States 147 F.2d 752 (10th Cir. federal conscription provision no 1945) Hopper v. United States 142 F.2d 181 (9th Cir.1944) federal conscription provision no E. Decision of the United States Courts of Appeals Sustaining State Action Against A Claim The Action Violated The Free Exercise ClauseWilder v. Bernstein 848 F.2d 1338 (2d Cir.1988) state childcare scheme no Smith v. North Babylon 844 F.2d 90 (2d Cir.1988) school board regulation no Bd. of Education Allen v. Toombs 827 F.2d 563 (9th Cir.1987) state prison regulation no Mozert v. Hawkins 827 F.2d 1058 (6th Cir. school board regulation no 1987) Paul v. Watchtower 819 F.2d 875 (9th Cir.1987) state court decree no Martinelli v. Dugger 817 F.2d 1499 (11th Cir. state prison regulations no 1987) Fellowship Baptist Church 815 F.2d 485 (8th Cir.1987) state educational statute no v. Benton Phan v. Virginia 806 F.2d 516 (4th Cir.1986) state constitutional provision no Azeez v. Fairman 795 F.2d 1296 (7th Cir. state prison regulations no 1986) Capoeman v. Reed 754 F.2d 1512 (9th Cir. state prison regulations no 1985) Catholic High School Ass'n 753 F.2d 1161 (2d Cir.1985) state labor regulation no v. Culvert Dreibelbis v. Marks 742 F.2d 792 (3d Cir.1984) state prison regulations no Pinsker v. Joint District 735 F.2d 388 (10th Cir. school district regulation no 1984) Grosz v. Miami Beach 721 F.2d 729 (11th Cir. city zoning ordinance no 1983) Madyun v. Franzen 704 F.2d 954 (7th Cir.1983) state prison regulation no Lakewood Congregation v. 699 F.2d 303 (6th Cir.1983) city zoning ordinance no Lakewood Int'l Soc. for Krishna Consciousness 689 F.2d 541 (5th Cir.1982) city solicitation ordinance no v. City of Houston, Tex. Menora v. Illinois High 683 F.2d 1030 (7th Cir. state educational regulation no School Ass'n 1982) Rogers v. Scurr 676 F.2d 1211 (8th Cir. state prison regulations no 1982) Africa v. Pennsylvania 662 F.2d 1025 (3th Cir. state prison regulations no 1982) Imam Ali Abdullah Akbar 634 F.2d 339 (6th Cir.1980) state prison regulations no v. Canney Walsh v. Louisiana High 616 F.2d 152 (5th Cir.1980) state educational regulation no Athletic Assn. Int'l Soc. for Krishna Consciousness 601 F.2d 809 (5th Cir.1979) municipal solicitation ordinance no v. Eaves
VIOLATIVE OF FREE CASE CITATION CHALLENGED MATTER EXERCISE CLAUSEArsberry v. Sielaff 586 F.2d 37 (7th Cir.1978) state prison regulations no Kennedy v. Meacham 540 F.2d 1057 (10th Cir. state prison regulations no 1976) LaReau v. MacDougall 473 F.2d 974 (2d Cir.1972) state prison regulations no Brooks v. Wainwright 428 F.2d 652 (5th Cir.1970) state prison regulation no (contra 405 U.S. 319 92 S.Ct. 1079 31 L.Ed.2d 263 (1972)) Brown v. Wainwright 419 F.2d 1376 (5th Cir. state prison regulations no 1970) (contra 405 U.S. 319 92 S.Ct. 1079 31 L.Ed.2d 263 (1972)) Sharp v. Sigler 408 F.2d 966 (8th Cir.1969) state prison regulations no Evans v. Ciccone 377 F.2d 4 (8th Cir.1967) state prison regulation no Sostre v. McGinnis 334 F.2d 906 (2d Cir.1964) state prison regulations no F. Decisions of the United States Courts of Appeals Invalidating State Action As a Violation of the Free Exercise Clause **Murphy v. Missouri Dep't 814 F.2d 1252 (8th Cir. state prison regulation yes of Corrections 1987) Barrett v. Com. of Va. 689 F.2d 498 (4th Cir.1982) state prison regulations yes Gallahan v. Hollyfield 670 F.2d 1345 (4th Cir. state prison regulation yes 1982) Burgin v. Henderson 536 F.2d 501 (2d Cir.1976) state prison regulation yes Teterud Burns 522 F.2d 357 (8th Cir.1975) state prison regulation yes Neal v. Georgia 464 F.2d 446 (5th Cir.1972) state prison regulation yes Walker v. Blackwell 411 F.2d 23 (5th Cir.1968) state prison regulations yes (in part) and no (in part)
On appeal, Townley does not argue that atheistic beliefs are not protected against religious discrimination. See Young v. Southwestern Sav. and Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975).
Legislative History, supra, at 3004.
The Equal Opportunity Act of 1972 changed section 702 to its present form. First, it deleted the clause exempting all educational institutions, and included educational institutions among the religious organizations listed in the section. Second, it amended the section to allow the organizations to discriminate on the basis of religion with respect to all their activities, not just their religious ones.
Although we adopt a similar approach in this case, we do not mean to imply that the analysis in a section 702 case is the same as in an Establishment Clause case. Our inquiry here is to determine whether the "general picture" of the institution is primarily religious or secular. Cf. Roemer v. Board of Public Works, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976). In Establishment Clause cases, the "general picture" is only one element for the court to consider in determining whether the government activity in question "fosters excessive government entanglement with religion." St. Elizabeth, 708 F.2d at 1436. In making that determination, a court may have to conduct more particular inquiries into the institution's character than simply deciding whether it is primarily religious or secular. For example, an institution with a substantially, or even primarily, religious character may nevertheless have activities which can be regulated by the government without fear of excessive entanglement. See, e.g., Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 305-06, 105 S.Ct. 1953, 1963, 85 L.Ed.2d 278 (1985); EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1282 (9th Cir.1982); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 286 (5th Cir.1981).
It is clear, of course, that the Free Exercise Clause protects "religious organizations" as well as individuals. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 154, 97 L.Ed. 120 (1952); see Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445-49, 89 S.Ct. 601, 604-06, 21 L.Ed.2d 658 (1969); Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum.L.Rev. 1373, 1389 (1981) ("Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] clause."). The Supreme Court has not discussed the scope of the term "religious organization," but it clearly includes organizations less pervasively religious than churches. See Bob Jones Univ. v. United States, 461 U.S. 574, 602-04, 103 S.Ct. 2017, 2034-35, 76 L.Ed.2d 157 (1983). We have often assumed without discussion that organizations with religious elements have Free Exercise rights. See EEOC v. Fremont Christian School, 781 F.2d 1362, 1367-69 (9th Cir.1986); St. Elizabeth Community Hosp. v. NLRB, 708 F.2d 1436, 1442-43 (9th Cir.1983); EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1279-81 (9th Cir.1982). Again, we need not decide whether these cases support Townley's contention that it has Free Exercise rights.