by John McGowan, Esq., CHEA Board of Directors
On June 15, the Supreme Court announced its decision in the R.G. & G.R. Harris Funeral Homes case, holding that the word “sex” in Title VII of the Civil Rights Act of 1964 includes protections for “gender identity” and “sexual orientation”. Since the Harris Funeral Homes case ruling, we have heard from many in the Christian homeschool community who have questions about possible implications for their PSPs or similarly situated organizations. The purpose of this article is to address some of those questions and offer some guidance on maximizing religious freedom protections. It should be noted from the start, however, that this discussion is general in nature and not intended to be legal advice or specific to any particular organization or set of facts. In addition, while perhaps informative, the topics addressed here are not necessarily applicable to the single-family private school affidavit filer. This discussion is of special importance, however, to the PSP or organization that services numerous families, has volunteers and/or employees, and handles financial transactions.
First, some context. Tom Rost is the current owner of R.G. & G.R. Harris Funeral Homes, a family business in operation for more than 100 years. In 2013, Tom was informed that one of his employees, a male funeral director who had agreed to, and followed, the company’s sex-specific dress code for years, intended to start dressing and presenting as a woman while working with grieving families. After considering the needs of all involved, including other employees and the grieving families the funeral home serves, Tom felt he had no choice but to part ways with the employee. This led to a lawsuit and the eventual landmark Supreme Court decision.
In its decision, the Supreme Court ruled that 56 years ago, when Congress passed the Civil Rights Act and used the term “sex” to offer women certain protections from workplace discrimination, the unintended, but now realized consequence, was that those protections necessarily extend to gay and transgender individuals as well. The majority opinion of the court went out of its way to indicate that it was not addressing any potential religious liberty or first amendment argument, but the court did recognize that there would be such future conflict (“[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases….”).
Justice Samuel Alito, offering a dissenting opinion, underscored the deep concern among religious organizations with the majority’s view and worry about what the decision could mean for those future religious liberty cases. Justice Alito recognized that,
“’Religious organizations need employees who actually live the faith’, and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty communicate a particular way of life to its students, and a violation by the faculty of those precepts may undermine the school’s moral teaching.”
It was not by accident that Justice Alito highlighted liberty concerns of religious schools and teachers in his Harris Funeral Homes’ dissent. At the time of Alito’s dissent, there was pending before the court a separate case of particular importance to religious schools. On July 8, the Supreme Court rendered its decision in Our Lady of Guadalupe School v. Morrissey, dealing with discrimination claims brought by Catholic elementary teachers. Justice Alito wrote the majority opinion in the Our Lady of Guadalupe School case which held, on first amendment grounds, that “when a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Justice Alito reasoned,
“The religious education and formation of students is the very reason for the existence of most private religious schools, and there-fore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”
The Our Lady of Guadalupe School decision was an important follow-up to the Harris Funeral Home case and made clear that in certain settings, such as with religious school teachers, the First Amendment prevents the government from tampering with a religious group’s employment decisions about who furthers its faith based mission.
Even though the Our Lady of Guadalupe School decision was welcome news, there are many potential fact patterns that lie somewhere between Harris Funeral Home (traditional employee/employer situation) and Our Lady of Guadalupe School (religious school teachers). The law is hardly settled beyond the specific facts before the court in these cases. There are also several federal (and state) statutes relating to rights of a religious organization, including religious protections found in Title VII itself and the separate Religious Freedom Restoration Act, along with countless cases interpreting those provisions, none of which are addressed here.
With that said, as a general matter, here are several steps that a religious organization, and a Christian homeschool PSP in particular, should consider taking to bolster its religious freedom protections.
NON-PROFIT STATUS
Whether a PSP, or any other Christian organization, operates for profit or as a non-profit organization may be considered by courts in determining whether the organization is a “religious organization” worthy of certain protections. While this may not be a determining factor on its own, organizations should consider organizing or re-organizing as a non-profit. Even if non-profit status is decided against, organizations should consider a formal business structure other than operating as a sole proprietor.
STATEMENT OF FAITH
All Christian organizations should have a robust statement of faith. Generally, courts will not question an organization’s self-proclaimed religious beliefs, particularly if they appear in a statement of faith or other governing document. The statement of faith should cover a broad range of religious beliefs. Consider requiring agreement to the statement of faith by all participants and employees.
MISSION STATEMENT
Whether incorporated into the statement of faith or a stand alone proclamation, Christian ministries/organizations should articulate the distinctly religious purpose for their existence through a mission statement. The mission statement should be grounded in the organization’s religious beliefs and statement of faith.
EMPHASIZE RELIGIOUS CHARACTER
Your organization should highlight, rather than conceal its religious character. A Christian ministry/organization can highlight its religious nature by regularly including prayer, Bible studies, and worship in its activities; emphasizing any affiliation with a church or religious denomination; noting the organization’s religious nature through any website, brochure, logo or tagline.
INSURANCE
Liability insurance, including officers/directors insurance should be considered. Don’t assume it is cost-prohibitive until talking to a broker.
Ultimately, as we consider the changing legal and cultural landscape, take courage. We know and trust that Christ is the same yesterday, and today, and forever. The Gospel message is worth any cost. Consider the words of late Supreme Court Justice Antonin Scalia. “Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”