U.S. Supreme Court

Corp. of Presiding Bishop v. Amos,483U.S. 327 (1987)Corporation of the Presiding Bishopof the Church of

Jesus Christ of Latter-Day Saints v.Amos

No. 86-179

Argued March 31, 1987

Decided June 24, 1987483U.S. 327ast|>*

483U.S. 327

APPEAL FROM THE UNITED STATESDISTRICT

COURT FOR THE DISTRICT OFUTAH

Syllabus

Appellee Mayson, who had been employed at a nonprofit facility,open to the public, that was run by religious entities associatedwith The Church of Jesus Christ of Latter-day Saints (Church), wasdischarged because he failed to qualify for a certificate that hewas a member of the Church and eligible to attend its temples. He,with other individuals purporting to represent a class, brought anaction in Federal District Court, alleging religious discriminationin violation of Title VII of the Civil Rights Act of 1964. Thedefendants moved to dismiss on the ground that they were shieldedfrom liability under § 702 of the Act, which exempts religiousorganizations from Title VII's prohibition of religiousdiscrimination in employment. The plaintiffs contended that, if §702 was construed to allow religious employers to discriminate onreligious grounds in hiring for nonreligious jobs, it violated theEstablishment Clause of the First Amendment. Finding that Mayson'scase involved nonreligious activities, the court held that, underthe test set out inLemon v. Kurtzman,403 U.S. 602, § 702 was unconstitutional as applied to secularactivity because it had the primary effect of advancingreligion.

Held: Applying § 702's exemption to religiousorganizations' secular activities does not violate theEstablishment Clause. There is ample room under that Clause forbenevolent neutrality which will permit religious exercise to existwithout sponsorship and without interference. Section 702'sexemption satisfies the first requirement of the three-partLemon test that the challenged law serve a "secularlegislative purpose." This requirement is aimed at preventing therelevant governmental decisionmaker from abandoning neutrality andacting with the intent of promoting a particular point of view inreligious matters. It is a permissible legislative purpose (ashere) to alleviate significant governmental interference with theability of religious organizations to define and carry out theirreligious missions. Section 702 also satisfiesLemon's

Page 483 U. S. 328

second requirement that the challenged law have a principal orprimary effect that neither advances nor inhibits religion. A lawis not unconstitutional simply because it allows churches toadvance religion, which is their very purpose. For a law to haveforbidden "effects," theGovernment itself must haveadvanced religion through its own activities and influence. TheDistrict Court's reliance on the facts that § 702 singles outreligious entities for a benefit, and is unsupported by longhistorical tradition, is unpersuasive. Moreover, there is no meritto the contention that § 702 offends equal protection principles bygiving less protection to religious employers' employees than tosecular employers' employees, and thus must be strictlyscrutinized. Where, as here, a statute does not discriminate amongreligions and, instead, is neutral on its face and motivated by apermissible purpose of limiting governmental interference with theexercise of religion, the proper inquiry is whether Congress haschosen a rational classification to further a legitimate end. Asapplied to nonprofit activities of religious employers, § 702 isrationally related to the legitimate purpose of alleviatingsignificant governmental interference with the ability of religiousorganizations to define and carry out their religious missions. Thethird part of theLemon test is also satisfied, since §702 does not impermissibly entangle church and state. Rather, iteffects a more complete separation of the two. Pp.483 U. S.334-340.

Reversed and remanded.

WHITE, J., delivered the opinion of the Court, in whichREHNQUIST, C.J., and POWELL, STEVENS, and SCALIA, JJ., joined.BRENNAN, J., filed an opinion concurring in the judgment, in whichMARSHALL, J., joined,post p.483 U. S. 340.BLACKMUN, J.,post p.483 U. S. 346,and O'CONNOR, J.,post p.483 U. S. 346,filed opinions concurring in the judgment.

Page 483 U. S. 329

JUSTICE WHITE delivered the opinion of the Court.

Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, asamended, 42 U.S.C. § 2000e-1, exempts religious organizations fromTitle VII's prohibition against discrimination in employment on thebasis of religion. [Footnote 1]The question presented

Page 483 U. S. 330

is whether applying the § 702 exemption to the secular nonprofitactivities of religious organizations violates the EstablishmentClause of the First Amendment. The District Court held that itdoes, and these cases are here on direct appeal pursuant to 28U.S.C. § 1252. [Footnote 2] Wereverse.

IThe Deseret Gymnasium (Gymnasium) in Salt Lake City, Utah, is anonprofit facility, open to the public, run by the Corporation ofthe Presiding Bishop of The Church of Jesus Christ of Latter-daySaints (CPB), and the Corporation of the President of The Church ofJesus Christ of Latter-day Saints (COP). The CPB and the COP arereligious entities associated with The Church of Jesus Christ ofLatter-day Saints (Church), an unincorporated religious associationsometimes called the Mormon or LDS Church. [Footnote 3]

Appellee Mayson worked at the Gymnasium for some 16 years as anassistant building engineer and then as building engineer. He wasdischarged in 1981 because he failed to qualify for a templerecommend, that is, a certificate that he is a member of the Churchand eligible to attend its temples. [Footnote 4]

Page 483 U. S. 331

Mayson and others purporting to represent a class of plaintiffsbrought an action against the CPB and the COP alleging, among otherthings, discrimination on the basis of religion in violation of §703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. [Footnote 5] The defendants moved todismiss this claim on the ground that § 702 shields them fromliability. The plaintiffs contended that, if construed to allowreligious employers to discriminate on religious grounds in hiringfor nonreligious jobs, § 702 violates the Establishment Clause.

The District Court first considered whether the facts of thesecases require a decision on the plaintiffs' constitutionalargument. Starting from the premise that the religious activitiesof religious employers can permissibly be exempted under § 702, thecourt developed a three-part test to determine whether an activityis religious. [Footnote 6]Applying this test to

Page 483 U. S. 332

Mayson's situation, the court found: first, that the Gymnasiumis intimately connected to the Church financially and in matters ofmanagement; second, that there is no clear connection between theprimary function which the Gymnasium performs and the religiousbeliefs and tenets of the Mormon Church or church administration;[Footnote 7] and third, thatnone of Mayson's duties at the Gymnasium are "even tangentiallyrelated to any conceivable religious belief or ritual of the MormonChurch or church administration,"594 F.Supp. 791, 802 (Utah 1984). The court concluded that Mayson'scase involves nonreligious activity. [Footnote 8]

The court next considered the plaintiffs' constitutionalchallenge to § 702. Applying the three-part test set out inLemon v. Kurtzman,403 U. S. 602(1971), the court first held that § 702 has the permissible secularpurpose of

"assuring that the government remains neutral, and does notmeddle in religious affairs by interfering with the decisionmakingprocess in religions. . . ."

594 F. Supp, at 812. [Footnote9]

Page 483 U. S. 333

The court concluded, however, that § 702 fails the second partof theLemon test because the provision has the primaryeffect of advancing religion. [Footnote 10] Among the considerations mentioned by thecourt were: that § 702 singles out religious entities for abenefit, rather than benefiting a broad grouping of which religiousorganizations are only a part; [Footnote 11] that § 702 is not supported by longhistorical tradition; [Footnote12] and that § 702 burdens the free exercise rights ofemployees of religious institutions who work in nonreligious jobs.Finding that § 702 impermissibly sponsors religious organizationsby granting them "an exclusive authorization to engage in conductwhich can directly and immediately advance religious tenets andpractices,"id. at 825, the court declared the statuteunconstitutional as applied to secular activity. The court enteredsummary judgment in favor of Mayson pursuant to Federal Rule ofCivil Procedure 54(b), and ordered him reinstated with backpay.[Footnote 13] Subsequently,the court vacated its judgment

Page 483 U. S. 334

so that the United States could intervene to defend theconstitutionality of § 702. After further briefing and argument,the court affirmed its prior determination and reentered a finaljudgment for Mayson.

II"This Court has long recognized that the government may (andsometimes must) accommodate religious practices, and that it may doso without violating the Establishment Clause."

Hobbie v. Unemployment Appeals Comm'n of Fla.,480 U. S. 136,480 U. S.144-145 (1987) (footnote omitted). It is wellestablished, too, that

"[t]he limits of permissible state accommodation to religion areby no means coextensive with the noninterference mandated by theFree Exercise Clause."

Walz v. Tax Comm'n,397 U. S. 664,397 U. S. 673(1970). There is ample room under the Establishment Clause for"benevolent neutrality which will permit religious exercise toexist without sponsorship and without interference."Id.at397 U. S. 669.At some point, accommodation may devolve into "an unlawful

Page 483 U. S. 335

fostering of religion,"Hobbie, supra, at480 U. S. 145,but these are not such cases, in our view.

The private appellants contend that we should not apply thethree-partLemon approach, which is assertedly unsuited tojudging the constitutionality of exemption statutes such as § 702.Brief for Appellants in No. 86-179, pp. 24-26. The argument is thatan exemption statute will always have the effect of advancingreligion, and hence be invalid under the second (effects) part oftheLemon test, a result claimed to be inconsistent withcases such asWalz v. Tax Comm'n, supra, which upheldproperty tax exemptions for religious organizations. The first twoof the threeLemon factors, however, were directly takenfrom pre-Walz decisions, 403 U.S. at403 U. S.612-613, andWalz did not purport to departfrom prior Establishment Clause cases, except by adding aconsideration that became the third element of theLemontest. 403 U.S. at403 U. S. 613.In any event, we need not reexamineLemon as applied inthis context, for the exemption involved here is in no wayquestionable under theLemon analysis.

Lemon requires first that the law at issue serve a"secular legislative purpose."Id. at403 U. S. 612.This does not mean that the law's purpose must be unrelated toreligion -- that would amount to a requirement "that the governmentshow a callous indifference to religious groups,"Zorach v.Clauson,343 U. S. 306,343 U. S. 314(1952), and the Establishment Clause has never been so interpreted.Rather,Lemon's "purpose" requirement aims at preventingthe relevant governmental decisionmaker -- in this case, Congress-- from abandoning neutrality and acting with the intent ofpromoting a particular point of view in religious matters.

Under theLemon analysis, it is a permissiblelegislative purpose to alleviate significant governmentalinterference with the ability of religious organizations to defineand carry out their religious missions. Appellees argue that thereis no such purpose here, because § 702 provided adequate protectionfor religious employers prior to the 1972 amendment,

Page 483 U. S. 336

when it exempted only the religious activities of such employersfrom the statutory ban on religious discrimination. We may assumefor the sake of argument that the pre-1972 exemption was adequatein the sense that the Free Exercise Clause required no more.Nonetheless, it is a significant burden on a religious organizationto require it, on pain of substantial liability, to predict whichof its activities a secular court will consider religious. The lineis hardly a bright one, and an organization might understandably beconcerned that a judge would not understand its religious tenetsand sense of mission. [Footnote14] Fear of potential liability might affect the way anorganization carried out what it understood to be its religiousmission.

After a detailed examination of the legislative history of the1972 amendment, the District Court concluded that Congress' purposewas to minimize governmental "interfer[ence] with thedecisionmaking process in religions." 594 F. Supp. at 812. We agreewith the District Court that this purpose does not violate theEstablishment Clause.

The second requirement underLemon is that the law inquestion have "a principal or primary effect . . . that neitheradvances nor inhibits religion." 403 U.S. at403 U. S. 612.Undoubtedly, religious organizations are better able now to advancetheir purposes than they were prior to the 1972 amendment to § 702.But religious groups have been better able to advance theirpurposes on account of many laws that have passed constitutionalmuster: for example, the property tax exemption at issue inWalz v. Tax Comm'n, supra, or the loans of schoolbooks toschoolchildren, including parochial school students, upheld inBoard of Education v.Allen, 392

Page 483 U. S. 337

U.S. 236 (1968). A law is not unconstitutional simply because itallows churches to advance religion, which is their verypurpose. For a law to have forbidden "effects" underLemon, it must be fair to say that thegovernmentitself has advanced religion through its own activities andinfluence. As the Court observed inWalz,

"for the men who wrote the Religion Clauses of the FirstAmendment the 'establishment' of a religion connoted sponsorship,financial support, and active involvement of the sovereign inreligious activity."

397 U.S. at397 U. S. 668.Accord, Lemon, 403 U.S. at403 U. S.612.

The District Court appeared to fear that sustaining theexemption would permit churches with financial resourcesimpermissibly to extend their influence and propagate their faithby entering the commercial, profit-making world. 594 F. Supp. at825. The cases before us, however, involve a nonprofit activityinstituted over 75 years ago in the hope that

"all who assemble here, and who come for the benefit of theirhealth, and for physical blessings, [may] feel that they are in ahouse dedicated to the Lord."

Dedicatory Prayer for the Gymnasium, quoted, 594 F. Supp. at800-801, n. 15. These cases therefore do not implicate the apparentconcerns of the District Court. Moreover, we find no persuasiveevidence in the record before us that the Church's ability topropagate its religious doctrine through the Gymnasium is anygreater now than it was prior to the passage of the Civil RightsAct in 1964. In such circumstances, we do not see how anyadvancement of religion achieved by the Gymnasium can be fairlyattributed to the Government, as opposed to the Church. [Footnote 15]

Page 483 U. S. 338

We find unpersuasive the District Court's reliance on the factthat § 702 singles out religious entities for a benefit. Althoughthe Court has given weight to this consideration in its pastdecisions,seen11,supra, it has never indicated that statutes that givespecial consideration to religious groups areper seinvalid. That would run contrary to the teaching of our cases thatthere is ample room for accommodation of religion under theEstablishment Clause.See supra at483 U. S.334-335. Where, as here, government acts with the properpurpose of lifting a regulation that burdens the exercise ofreligion, we see no reason to require that the exemption comepackaged with benefits to secular entities.

We are also unpersuaded by the District Court's reliance on theargument that § 702 is unsupported by long historical tradition.There was simply no need to consider the scope of the § 702exemption until the 1964 Civil Rights Act was passed, and the factthat Congress concluded, after eight years, that the originalexemption was unnecessarily narrow is a decision entitled todeference, not suspicion.

Appellees argue that § 702 offends equal protection principlesby giving less protection to the employees of religious employersthan to the employees of secular employers. [Footnote 16] Appellees rely onLarson v.Valente,456 U. S. 228,456 U. S.246

Page 483 U. S. 339

(1982), for the proposition that a law drawing distinctions onreligious grounds must be strictly scrutinized. ButLarsonindicates that laws discriminatingamong religions aresubject to strict scrutiny,ibid., and that laws"affording a uniform benefit toall religions" should beanalyzed underLemon, 456 U. S. at456 U. S. 252.In cases such as these, where a statute is neutral on its face andmotivated by a permissible purpose of limiting governmentalinterference with the exercise of religion, we see no justificationfor applying strict scrutiny to a statute that passes theLemon test. The proper inquiry is whether Congress haschosen a rational classification to further a legitimate end. Wehave already indicated that Congress acted with a legitimatepurpose in expanding the § 702 exemption to cover all activities ofreligious employers.Supra at483 U. S. 336.To dispose of appellees' equal protection argument, it suffices tohold -- as we now do -- that, as applied to the nonprofitactivities of religious employers, §702 is rationally related tothe legitimate purpose of alleviating significant governmentalinterference with the ability of religious organizations to defineand carry out their religious missions.

It cannot be seriously contended that § 702 impermissiblyentangles church and state; the statute effectuates a more completeseparation of the two and avoids the kind of intrusive inquiry intoreligious belief that the District Court engaged in in this case.The statute easily passes muster under the third part of theLemon test. [Footnote17]

Page 483 U. S. 340

The judgment of the District Court is reversed, and the casesare remanded for further proceedings consistent with thisopinion.

It is so ordered.

* Together with No. 86-401,United States v. Amos etal., also on appeal from the same court.

[Footnote 1]

Section 702 provides in relevant part:

"This subchapter [i.e., Title VII of the Civil RightsAct of 1964, 42 U.S.C. § 2000eet seq.] shall not apply .. . to a religious corporation, association, educationalinstitution, or society with respect to the employment ofindividuals of a particular religion to perform work connected withthe carrying on by such corporation, association, educationalinstitution, or society of its activities."

[Footnote 2]

Title 28 U.S.C. § 1252 permits any party to appeal to this Courtfrom an interlocutory or final judgment, decree, or order of anycourt of the United States holding an Act of Congressunconstitutional in any civil action to which the United States isa party.

[Footnote 3]

The CPB and the COP are "corporations sole" organized under Utahlaw to perform various activities on behalf of the Church. Bothcorporations are tax-exempt, nonprofit religious entities under §501(c)(3) of the Internal Revenue Code. Appellees do not contestthat the CPB and the COP are religious organizations for purposesof § 702.

[Footnote 4]

Temple recommends are issued only to individuals who observe theChurch's standards in such matters as regular church attendance,tithing, and abstinence from coffee, tea, alcohol, and tobacco.

[Footnote 5]

The District Court did not certify a class. The other plaintiffsbelow, whose claims are not at issue in this appeal, initiallyincluded former employees of Beehive Clothing Mills, whichmanufactures garments with religious significance for Churchmembers. The complaint was amended to add as plaintiff a formeremployee of Deseret Industries, a division of the Church's WelfareServices Department. The District Court's rulings on the otherplaintiffs' claims are described atn 13,infra.

[Footnote 6]

The District Court described the test as follows:

"First, the court must look at the tie between the religiousorganization and the activity at issue with regard to such areas asfinancial affairs, day-to-day operations, and management. Second,whether or not there is a close and substantial tie between thetwo, the court next must examine the nexus between the primaryfunction of the activity in question and the religious rituals ortenets of the religious organization or matters of churchadministration. If there is substantial connection between theactivity in question and the religious organization's religioustenets or matters of church administration, and the tie under thefirst part of the test is close, the court does not need to proceedany further, and may declare the activity religious. . . . However,where the tie between the religious entity and activity in questionis either close or remote under the first prong of the test, andthe nexus between the primary function of the activity in questionand the religious tenets or rituals of the religious organizationor matters of church administration is tenuous or non-existent, thecourt must engage in a third inquiry. It must consider therelationship between the nature of the job the employee isperforming and the religious rituals or tenets of the religiousorganization or matters of church administration. If there is asubstantial relationship between the employee's job and churchadministration or the religious organization's rituals or tenets,the court must find that the activity in question is religious. Ifthe relationship is not substantial, the activity is notreligious."

594 F.Supp. 791, 799 (Utah 1984).

[Footnote 7]

The court found that

"nothing in the running or purpose of [the Gymnasium] . . .suggests that it was intended to spread or teach the religiousbeliefs and doctrine and practices of sacred ritual of the MormonChurch, or that it was intended to be an integral part of churchadministration."

Id. at 800. The court emphasized that no contention wasmade that the religious doctrines of the Mormon Church eitherrequire religious discrimination in employment or treat physicalexercise as a religious ritual.Id. at 801.

[Footnote 8]

The court also considered and rejected the possibility that §702 could be construed to exempt a religious organization only withrespect to employment involving religious activities.Id.at 803-804.

[Footnote 9]

The court examined in considerable detail the legislativehistory of the 1972 amendment of § 702.Id. at 805-812.Prior to that time, § 702 exempted only the religious activities ofreligious employers from the statutory proscription againstreligious discrimination in employment. The 1972 amendmentextending the exemption to all activities of religiousorganizations was sponsored by Senators Allen and Ervin. SenatorErvin explained that the purpose of the amendment was to "take thepolitical hands of Caesar off of the institutions of God, wherethey have no place to be." 118 Cong.Rec. 4503 (1972).

[Footnote 10]

The court rejected the defendants' arguments that § 702 isrequired both by the need to avoid excessive governmentalentanglement with religion and by the Free Exercise Clause. 594 F.Supp. at 814-820.

[Footnote 11]

Cf., e.g., Mueller v. Allen,463 U.S. 388,463 U. S. 397(1983) (provision of benefits to a broad spectrum of groups is animportant index of secular effect);Committee for PublicEducation & Religious Liberty v. Nyquist,413 U.S. 756,413 U. S. 794(1973) (narrowness of benefited class is an important factor inevaluating whether effect of a law violates the EstablishmentClause).

[Footnote 12]

Cf. Walz v. Tax Comm'n,397 U.S. 664,397 U. S.676-679 (1970) (relying in part, in upholding propertytax exemption for religious groups, on long historical traditionfor such exemptions).

[Footnote 13]

The court declared that its determination regarding § 702"applies with equal force to the [similar] state exemption as itrelates to the facts of this case." 594 F. Supp. at 798. Itdeferred ruling on the plaintiffs' claim that § 702 violates theDue Process and Equal Protection Clauses of the United StatesConstitution,id. at 828, and rejected the plaintiffs'state law claims of wrongful discharge and intentional inflictionof emotional distress,id. at 828-830.

Subsequently, the court concluded that disputed issues ofmaterial fact precluded summary judgment for the Beehive employees(see n.5supra).618 F.Supp. 1013, 1016 (Utah 1985).

A plaintiff added by amendment of the complaint, Ralph Whitaker,claimed impermissible religious discrimination in his dischargefrom the position of truckdriver by Deseret Industries (Industries)based on his failure to qualify for a temple recommend. Industries,a division of the Church's Welfare Services Department, runs aworkshop program for the handicapped, retarded, and unemployed, whosort and assemble items and refurbish donated goods for sale inIndustries' thrift stores. Relying on the Church's emphasis oncharity and work, the court held that Industries is a religiousactivity because

"there is an intimate connection between Industries and thedefendants and the Mormon Church and between the primary functionof Industries and the religious tenets of the Church."

Id. at 1027. Finding no Establishment Clause violationin applying the § 702 exemption to Industries, the court grantedsummary judgment against Whitaker, who did not appeal.

[Footnote 14]

The present cases are illustrative of the difficulties: thedistinction between Deseret Industries,seen 13,supra, and the Gymnasium israther fine. Both activities are run on a nonprofit basis, and theCPB and the COP argue that the District Court failed to appreciatethat the Gymnasium, as well as Deseret Industries, is expressive ofthe Church's religious values. Brief for Appellants in No. 86-179,pp. 6-8, 19.

[Footnote 15]

Undoubtedly, Mayson's freedom of choice in religious matters wasimpinged upon, but it was the Church (through the COP and the CPB),and not the Government, who put him to the choice of changing hisreligious practices or losing his job. This is a very differentcase thanEstate of Thornton v. Caldor, Inc.,472 U.S. 703 (1985). InCaldor, the Court struck downa Connecticut statute prohibiting an employer from requiring anemployee to work on a day designated by the employee as hisSabbath. In effect, Connecticut had given the force of law to theemployee's designation of a Sabbath day, and required accommodationby the employer regardless of the burden which that constituted forthe employer or other employees.See Hobbie v. UnemploymentAppeals Comm'n of Fla.,480 U. S. 136,480 U. S. 145,n. 11 (1987). In the present cases, appellee Mayson was not legallyobligated to take the steps necessary to qualify for a templerecommend, and his discharge was not required by statute. We findno merit in appellees' contention that § 702

"impermissibly delegates governmental power to religiousemployees, and conveys a message of governmental endorsement ofreligious discrimination."

Brief for Appellees 31.

[Footnote 16]

Appellees also argue that § 702 violates equal protectionprinciples by giving religious employers greater leeway todiscriminate than secular employers. It is not clear why appelleesshould have standing to represent the interests of secularemployers, but, in any event, this argument is, practicallyspeaking, merely a restatement of the first point.

[Footnote 17]

We have no occasion to pass on the argument of the COP and theCPB that the exemption to which they are entitled under § 702 isrequired by the Free Exercise Clause.

Appellees argue that § 702 creates danger of politicaldivisiveness along political lines. As the Court stated inLynch v. Donnelly,465 U. S. 668,465 U. S. 684(1098):

"[T]his Court has not held that political divisiveness alone canserve to invalidate otherwise permissible conduct. And we declineto so hold today. This case does not involve a direct subsidy tochurch-sponsored schools or colleges, or other religiousinstitutions, and hence no inquiry into political divisiveness iseven called for,Mueller v. Allen,463 U. S.388,463 U. S. 403-404, n. 11(1983)."

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring inthe judgment.

I write separately to emphasize that my concurrence in thejudgment rests on the fact that these cases involve a challenge tothe application of § 702's categorical exemption to the activitiesof anonprofit organization. I believe that the particularcharacter of nonprofit activity makes inappropriate a case-by-casedetermination whether its nature is religious or secular.

These cases present a confrontation between the rights ofreligious organizations and those of individuals. Any exemptionfrom Title VII's proscription on religious discriminationnecessarily has the effect of burdening the religious liberty ofprospective and current employees. An exemption says that a personmay be put to the choice of either conforming to certain religioustenets or losing a job opportunity, a promotion, or, as in thesecases, employment itself. [Footnote2/1]

Page 483 U. S. 341

The potential for coercion created by such a provision is inserious tension with our commitment to individual freedom ofconscience in matters of religious belief. [Footnote 2/2]

At the same time, religious organizations have an interest inautonomy in ordering their internal affairs, so that they may befree to:

"select their own leaders, define their own doctrines, resolvetheir own disputes, and run their own institutions. Religionincludes important communal elements for most believers. Theyexercise their religion through religious organizations, and theseorganizations must be protected by the [Free Exercise][C]lause."

Laycock, Towards a General Theory of the Religion Clauses:The

Page 483 U. S. 342

Case of Church Labor Relations and the Right to Church Autonomy,81 Colum.L.Rev. 1373, 1389 (1981).See also Serbian EasternOrthodox Diocese v. Milivojevich,426 U.S. 696 (1976) (church has interest in effecting bindingresolution of internal governance disputes);Kedroff v. SaintNicholas Cathedral,344 U. S. 94 (1952)(state statute purporting to transfer administrative control fromone church authority to another violates Free Exercise Clause). Formany individuals, religious activity derives meaning in largemeasure from participation in a larger religious community. Such acommunity represents an ongoing tradition of shared beliefs, anorganic entity not reducible to a mere aggregation of individuals.[Footnote 2/3] Determining thatcertain activities are in furtherance of an organization'sreligious mission, and that only those committed to that missionshould conduct them, is thus a means by which a religious communitydefines itself. Solicitude for a church's ability to do so reflectsthe idea that furtherance of the autonomy of religiousorganizations often furthers individual religious freedom aswell.

The authority to engage in this process of self-definitioninevitably involves what we normally regard as infringement on freeexercise rights, since a religious organization is able tocondition employment in certain activities on subscription toparticular religious tenets. We are willing to countenance theimposition of such a condition because we deem it vital that, ifcertain activities constitute part of a religious community'spractice, then a religious organization should be able to

Page 483 U. S. 343

require that only members of its community perform thoseactivities.

This rationale suggests that, ideally, religious organizationsshould be able to discriminate on the basis of religion only withrespect to religious activities, so that a determination should bemade in each case whether an activity is religious or secular. Thisis because the infringement on religious liberty that results fromconditioning performance of secular activity upon religious beliefcannot be defended as necessary for the community'sself-definition. Furthermore, the authorization of discriminationin such circumstances is not an accommodation that simply enables achurch to gain members by the normal means of prescribing the termsof membership for those who seek to participate in furthering themission of the community. Rather, it puts at the disposal ofreligion the added advantages of economic leverage in the secularrealm. As a result, the authorization of religious discriminationwith respect to nonreligious activities goes beyond reasonableaccommodation, and has the effect of furthering religion inviolation of the Establishment Clause.See Lemon v.Kurtzman,403 U. S. 602,403 U. S. 612(1971).

What makes the application of a religious-secular distinctiondifficult is that the character of an activity is not self-evident.As a result, determining whether an activity is religious orsecular requires a searching case-by-case analysis. This results inconsiderable ongoing government entanglement in religious affairs.See id. at403 U. S. 613.Furthermore, this prospect of government intrusion raises concernthat a religious organization may be chilled in its free exerciseactivity. While a church may regard the conduct of certainfunctions as integral to its mission, a court may disagree. Areligious organization therefore would have an incentive tocharacterize as religious only those activities about which therelikely would be no dispute, even if it genuinely believed thatreligious commitment was important in performing other tasks aswell. As a result, the community's process

Page 483 U. S. 344

of self-definition would be shaped in part by the prospects oflitigation. A case-by-case analysis for all activities thereforewould both produce excessive government entanglement with religionand create the danger of chilling religious activity.

The risk of chilling religious organizations is most likely toarise with respect to nonprofit activities. The fact that anoperation is not organized as a profit-making commercial enterprisemakes colorable a claim that it is not purely secular inorientation. In contrast to a for-profit corporation, a nonprofitorganization must utilize its earnings to finance the continuedprovision of the goods or services it furnishes, and may notdistribute any surplus to the owners.See generallyHansmann, The Role of Nonprofit Enterprise, 89 Yale L.J. 835(1980). This makes plausible a church's contention that an entityis not operated simply in order to generate revenues for thechurch, but that the activities themselves are infused with areligious purpose. Furthermore, unlike for-profit corporations,nonprofits historically have been organized specifically to providecertain community services, not simply to engage in commerce.Churches often regard the provision of such services as a means offulfilling religious duty and of providing an example of the way oflife a church seeks to foster. [Footnote 2/4]

Page 483 U. S. 345

Nonprofit activities therefore are most likely to present casesin which characterization of the activity as religious or secularwill be a close question. If there is a danger that a religiousorganization will be deterred from classifying as religious thoseactivities it actually regards as religious, it is likely to be inthis domain. [Footnote 2/5] Thissubstantial potential for chilling religious activity makesinappropriate a case-by-case determination of the character of anonprofit organization, and justifies a categorical exemption fornonprofit activities. Such an exemption demarcates a sphere ofdeference with respect to those activities most likely to bereligious. It permits infringement on employee free exercise rightsin those instances in which discrimination is most likely toreflect a religious community's self-definition. While not everynonprofit activity may be operated for religious purposes, thelikelihood that many are makes a categorical rule a suitable meansto avoid chilling the exercise of religion. [Footnote 2/6]

Sensitivity to individual religious freedom dictates thatreligious discrimination be permitted only with respect toemployment in religious activities. Concern for the autonomy ofreligious organizations demands that we avoid the entanglement andthe chill on religious expression that a case-by-case determinationwould produce. We cannot escape the fact that these aims are intension. Because of the nature of nonprofit activities, I believethat a categorical exemption for

Page 483 U. S. 346

such enterprises appropriately balances these competingconcerns. As a result, I concur in the Court's judgment that thenonprofit Deseret Gymnasium may avail itself of an automaticexemption from Title VII's proscription on religiousdiscrimination.

[Footnote 2/1]

The fact that a religious organization is permitted, rather thanrequired, to impose this burden is irrelevant; what is significantis that the burden is the effect of the exemption.See Lemon v.Kurtzman,403 U. S. 602,403 U. S. 612(1971). An exemption, by its nature, merely permits certainbehavior, but that has never stopped this Court from examining theeffect of exemptions that would free religion fromregulations placed on others.See, e.g., United States v.Lee,455 U. S. 252,455 U. S. 261(1982) ("Granting an exemption from social security taxes to anemployer operates to impose the employer's religious faith on theemployees");Walz v. Tax Comm'n,397 U.S. 664,397 U. S. 674(1970) (legislative purpose in granting tax exemption notdeterminative; "[w]e must also be sure that the end result -- theeffect -- is not an excessive government entanglement withreligion");see also Wisconsin v. Yoder,406 U.S. 205,406 U. S.220-221 (1972) ("The Court must not ignore the dangerthat an exception from a general obligation of citizenship onreligious grounds may run afoul of the Establishment Clause"). Thisapproach reflects concern not only about the impact of exemptionson others, but also awareness that:

"Government promotes religion as effectively when it fosters aclose identification of its powers and responsibilities with thoseof any -- or all -- religious denominations as when it attempts toinculcate specific religious doctrines. If this identificationconveys a message of government endorsement . . . of religion, acore purpose of the Establishment Clause is violated."

Grand Rapids School Dist. v. Ball,473 U.S. 373,473 U. S. 389(1985).

In these cases, as JUSTICE O'CONNOR cogently observes in herconcurrence,

"[t]he Church had the power to put [appellee] Mayson to a choiceof qualifying for a temple recommend or losing his job because theGovernment had lifted from religious organizations thegeneral regulatory burden imposed by § 702."

Post at483 U. S.347.

[Footnote 2/2]

As James Madison expressed it:

"[W]e hold it for a fundamental and undeniable truth,"

"that Religion or the duty which we owe to our Creator and theManner of discharging it can be directed only by reason andconviction, not by force or violence."

"The Religion then of every man must be left to the convictionand conscience of every man; and it is the right of every man toexercise it as these may dictate."

J. Madison, Memorial and Remonstrance Against ReligiousAssessment, in 2 Writings of James Madison 184 (G. Hunt ed.1901)(quoting Virginia Declaration of Rights, Art. 16).

See also Wallace v. Jaffree,472 U. S.38,472 U. S. 50(1985) ("[T]he Court has identified the individual's freedom ofconscience as the central liberty that unifies the various Clausesin the First Amendment").

[Footnote 2/3]

See, e.g., K. Barth, The Christian Community and theCivil Community, in Community, State and Church 149 (1960); Cover,The Supreme Court, 1982 Term -- Foreword: Nomos and Narrative, 97Harv.L.Rev. 4 (1983).Cf. Perry, The Authority of Text,Tradition, and Reason: A Theory of Constitutional "Interpretation,"58 S.Cal.L.Rev. 551, 558 (1985) (tradition represents "a particularhistory or narrative, in which the central motif is an aspirationto a particular form of life, to certain projects, goals, [and]ideals, and the central discourse . . . is an argument . . . abouthow that form of life is to be cultivated and revised").

[Footnote 2/4]

Until quite recently it was common for state laws to permit anentity to incorporate as a nonprofit only if formed to serve one ormore of a limited set of purposes. Hansmann, The Role of NonprofitEnterprise, 89 Yale L.J. 835, 839 (1980). Many States, however, nowpermit the formation of a nonprofit corporation for any lawfulpurpose.Ibid. If it were possible easily to transform anenterprise that appeared commercial in substance into one nonprofitin form, a church's decision to do so might signal that the churchregarded the religious character of an entity as so significantthat it was willing to forgo direct financial benefits in order tobe able to hire persons committed to the church's mission.Nonetheless, if experience proved that nonprofit incorporation wasfrequently used simply to evade Title VII, I would find itnecessary to reconsider the judgment in these cases.

[Footnote 2/5]

Furthermore, as JUSTICE O'CONNOR notes in her excellentconcurrence, when an exemption is provided for nonprofitactivity,

"the objective observer should perceive the government action asan accommodation of the exercise of religion, rather than as agovernment endorsement of religion."

Post at483 U. S.349.

[Footnote 2/6]

It is also conceivable that some for-profit activities couldhave a religious character, so that religious discrimination withrespect to these activities would be justified in some cases. Thecases before us, however, involve a nonprofit organization; Ibelieve that acategorical exemption authorizingdiscrimination is particularly appropriate for such entities,because claims that they possess a religious dimension will beespecially colorable.

JUSTICE BLACKMUN, concurring in the judgment.

Essentially for the reasons set forth in JUSTICE O'CONNOR'sopinion, particularly the third and final paragraphs thereof, Itoo, concur in the judgment of the Court. I fully agree that thedistinction drawn by the Court seems "to obscure far more than toenlighten," as JUSTICE O'CONNOR states,post at483 U. S. 347,and that, surely, the "question of the constitutionality of the §702 exemption as applied to for-profit activities of religiousorganizations remains open,"post at483 U. S.349.

JUSTICE O'CONNOR, concurring in the judgment.

Although I agree with the judgment of the Court, I writeseparately to note that this action once again illustrates certaindifficulties inherent in the Court's use of the test articulated inLemon v. Kurtzman,403 U. S. 602,403 U. S.612-613 (1971).See Wallace v. Jaffree,472 U. S. 38,472 U. S. 67(1985) (O'CONNOR, J., concurring in judgment);Lynch v.Donnelly,465 U. S. 668,465 U. S. 687(1984) (O'CONNOR, J., concurring). As a result of this problematicanalysis, while the holding of the opinion for the Court extendsonly to nonprofit organizations, its reasoning fails to acknowledgethat the amended § 702, 42 U.S.C. § 2000e-1, raises differentquestions as it is applied to profit and nonprofitorganizations.

InWallace v. Jaffree, supra, I noted a tension in theCourt's use of theLemon test to evaluate an EstablishmentClause challenge to government efforts to accommodate the freeexercise of religion:

"On the one hand, a rigid application of theLemon testwould invalidate legislation exempting religious observers fromgenerally applicable government obligations.

Page 483 U. S. 347

By definition, such legislation has a religious purpose andeffect in promoting the free exercise of religion. On the otherhand, judicial deference to all legislation that purports tofacilitate the free exercise of religion would completely vitiatethe Establishment Clause. Any statute pertaining to religion can beviewed as an 'accommodation' of free exercise rights."

Wallace v. Jaffree, supra, at472 U. S.82.

In my view, the opinion for the Court leans toward the second ofthe two unacceptable options described above. While acknowledgingthat "[u]ndoubtedly, religious organizations are better able now toadvance their purposes than they were prior to the 1972 amendmentto § 702," the Court seems to suggest that the "effects" prong oftheLemon test is not at all implicated as long as thegovernment action can be characterized as "allowing" religiousorganizations to advance religion, in contrast to government actiondirectly advancing religion.Ante at483 U. S. 337.This distinction seems to me to obscure far more than to enlighten.Almost any government benefit to religion could be recharacterizedas simply "allowing" a religion to better advance itself, unlessperhaps it involved actual proselytization by government agents. Innearly every case of a government benefit to religion, thereligious mission would not be advanced if the religion did nottake advantage of the benefit; even a direct financial subsidy to areligious organization would not advance religion if, for somereason, the organization failed to make any use of the funds. It isfor this same reason that there is little significance to theCourt's observation that it was the Church, rather than theGovernment, that penalized Mayson's refusal to adhere to Churchdoctrine.Ante at483 U. S. 337, n. 15. The Church had the power to putMayson to a choice of qualifying for a temple recommend or losinghis job becausethe Government had lifted from religiousorganizations the general regulatory burden imposed by § 702.

Page 483 U. S. 348

The necessary first step in evaluating an Establishment Clausechallenge to a government action lifting from religiousorganizations a generally applicable regulatory burden is torecognize that such government actiondoes have the effectof advancing religion. The necessary second step is to separatethose benefits to religion that constitutionally accommodate thefree exercise of religion from those that provide unjustifiableawards of assistance to religious organizations. As I havesuggested in earlier opinions, the inquiry framed by theLemon test should be "whether government's purpose is toendorse religion and whether the statute actually conveys a messageof endorsement."Wallace, 472 U.S. at472 U. S. 69. Toascertain whether the statute conveys a message of endorsement, therelevant issue is how it would be perceived by an objectiveobserver, acquainted with the text, legislative history. andimplementation of the statute.Id. at472 U. S. 76. Ofcourse, in order to perceive the government action as a permissibleaccommodation of religion, there must in fact be an identifiableburdenon the exercise of religion that can be said to belifted by the government action. The determination whether theobjective observer will perceive an endorsement of religion

"is not a question of simple historical fact. Althoughevidentiary submissions may help answer it, the question is, likethe question whether racial or sex-based classificationscommunicate an invidious message, in large part a legal question tobe answered on the basis of judicial interpretation of socialfacts."

Lynch v. Donnelly, supra, at465 U. S.693-694.

The above framework, I believe, helps clarify why the amended §702 raises different questions as it is applied to nonprofit andfor-profit organizations. As JUSTICE BRENNAN observes in hisconcurrence:

"The fact that an operation is not organized as a profit-makingcommercial enterprise makes colorable a claim that it is not purelysecular in orientation."

Ante at483 U. S. 344(opinion concurring in judgment). These cases involve a Governmentdecision to lift from a non-profit

Page 483 U. S. 349

activity of a religious organization the burden of demonstratingthat the particular nonprofit activity is religious as well as theburden of refraining from discriminating on the basis of religion.Because there is a probability that a nonprofit activity of areligious organization will itself be involved in theorganization's religious mission, in my view, the objectiveobserver should perceive the Government action as an accommodationof the exercise of religion, rather than as a Governmentendorsement of religion.

It is not clear, however, that activities conducted by religiousorganizations solely as profit-making enterprises will be as likelyto be directly involved in the religious mission of theorganization. While I express no opinion on the issue, I emphasizethat, under the holding of the Court, and under my view of theappropriate Establishment Clause analysis, the question of theconstitutionality of the § 702 exemption as applied to for-profitactivities of religious organizations remains open.