Daniel2 Posted June 22, 2020 Posted June 22, 2020 (edited) The consensus of analyses that I've read agree that the court made the right determination in ruling that discrimination based on sexual orientation (as orientation relates to sex/gender) and gender identity are at least 'on the basis of sex,' whether or not any of the fired individuals' additional personal characteristices were also factors. Quoting from one: The Supreme Court consolidated these three cases to decide whether discrimination against LGBTQ individuals was, in fact, sex discrimination for the purposes of the statute. Six Supreme Court justices agreed that this behavior constituted sex discrimination. As Gorsuch wrote: “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” This behavior, Gorsuch continued, is “exactly what Title VII forbids.” Additionally, the general consensus that I've read also points to those portions of the ruling (which I attempted to emphasis, early in this thread) emphasizing that Title VII's exisiting religious exemptions remain otherise unchanged and will continue to apply to 'sex' in the same way as they've been applied to the other four protected characteristics: While the court ruled unequivocally for the Bostock plaintiffs, Gorsuch suggested in his final few paragraphs that, under some circumstances, Title VII protections could be “superseded” by religious liberty claims under the First Amendment’s Free Exercise Clause (“Congress shall make no law … prohibiting the free exercise [of religion]”) and/or under the Religious Freedom Restoration Act. This 1993 law exempts individuals from complying with federal law if a person can show that a federal law “substantially burdens" their "exercise of religion." Addressing the "fear" that the Bostock ruling "may require some employers to violate their religious convictions," Gorsuch suggests that these newly won Title VII protections for LGBTQ individuals would be "displaced" in cases where the conduct in question was religiously motivated... While conservative Christians and faith-based litigators expressed disappointment with the decision in Bostock, Gorsuch’s "signal" to these groups in his opinion is clear: Bring the cases, and the Supreme Court will decide exactly how, and how often, religious liberty can "displace" or "supersede" the Title VII protections for LGBTQ individuals. Edited June 22, 2020 by Daniel2
Teancum Posted June 22, 2020 Posted June 22, 2020 On 6/15/2020 at 3:47 PM, Scott Lloyd said: If there is any risk at all of this ruling abridging the free exercise of religion, now or in the future, I should think the Church would be prudent to withhold its support. Does the free exercise of religion include the right to discriminate for employment purposes? 1
Teancum Posted June 22, 2020 Posted June 22, 2020 On 6/15/2020 at 4:22 PM, Anijen said: My two cents of thought... I think regardless, there will be law suits in the near future. This will be accomplished by a gradual shift in objectives during the course of a campaign to make temple marriage available (mission creep). This opens up different possible paths. For example, since Obergefell allowed marriage as a fundamental right to all same-sex couples, it could be argued (and probably will be), that it is unconstitutional prohibiting a same sex couple to be married in the temple. Another path I see being used is by arguing with the same rational SCOTUS used in this decision (business hiring practices) and apply them to religious type marriages. I have read the opinion and even though religion was promised that their own rights will not be affected, I can, nevertheless see the same reasoning being used. That being, the ruling that firing someone because they identify as gay or transgender falls under the ban in Title VII of the act on employment discrimination. Thus, these same type of arguments will be used for allowing temple marriage because even religion cannot take away a fundamental right. Here, in the past, on this board, I said that there will be suits pitting a constitutional right against another constitutional right. I ended up being correct and that has since came to pass. I am just the messenger here and not taking a side, so please hold your vitriol for someone else. Once more, I am simply predicting the law suits will come soon and probably in the manner I described. The Church can get around any imposition of requiring temple marriages for gay individuals simply by getting out of the marriage business. It can require members to get a civil marriage as required in many nations and have a temple sealing an ordinance rather than an official marriage.
Scott Lloyd Posted June 22, 2020 Posted June 22, 2020 (edited) 1 hour ago, Teancum said: Does the free exercise of religion include the right to discriminate for employment purposes? Should I be denied employment as pastor of a Baptist church because I’m not Baptist? As the rabbi of a Jewish synagogue because I’m not Jewish? Why do you even have to ask this? Edited June 22, 2020 by Scott Lloyd 1
JLHPROF Posted June 22, 2020 Posted June 22, 2020 1 hour ago, Teancum said: Does the free exercise of religion include the right to discriminate for employment purposes? Depends on what the job requirements are. https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification 1
Scott Lloyd Posted June 22, 2020 Posted June 22, 2020 1 hour ago, Teancum said: The Church can get around any imposition of requiring temple marriages for gay individuals simply by getting out of the marriage business. It can require members to get a civil marriage as required in many nations and have a temple sealing an ordinance rather than an official marriage. Should the Church have to “get out of the marriage business” to exercise its religion freely? What about the First Amendment? 1
Teancum Posted June 23, 2020 Posted June 23, 2020 14 hours ago, Scott Lloyd said: Should I be denied employment as pastor of a Baptist church because I’m not Baptist? As the rabbi of a Jewish synagogue because I’m not Jewish? Why do you even have to ask this? I ask because it is a relevant question. But Your example is specious as you know I was not referring to jobs that require certain qualifications. So let's clarify it. Should someone be able to not hire you because your are a Latter day Saint even if you are qualified for the job?
Daniel2 Posted June 23, 2020 Posted June 23, 2020 14 hours ago, Scott Lloyd said: Should I be denied employment as pastor of a Baptist church because I’m not Baptist? As the rabbi of a Jewish synagogue because I’m not Jewish? Why do you even have to ask this? From a legal perspective, I think there's no question about the answers to your questions. Legally, churches (Baptist, Jewish, Mormon, Catholic, whatever) are free to deny employment to any individual who doesn't conform to their religious tenants. On the other hand, privately-owned companies and organizations operating in the public sector (and therefore non-church-owned businesses) must comply with non-discrimination laws (as well as public accommodation laws) and cannot violate said laws based on privately-held religious beliefs. Said differently, in the United States, the concept or "religious freedom" does not include any "right to discriminate," even when complying with non-discrimination laws may contradict private business owners' personally-held religious beliefs. From my personal perspective, I think that's the way it should be. Religious freedom should protect churches and religiously-owned entities' employment requirements, whereas non-church-owned companies should comply with non-discrimination law. For all the bluster over the issue here on the board, most people I've personally spoken with agree on both of these two points. And while the issue is sometimes more nuanced than that, figuring out those gray areas--where and how the law is/should be applied, if it's unclear--is we have courts, which is why the Supreme Court mentioned any such issues would/could/will be addressed, as needed.
Teancum Posted June 23, 2020 Posted June 23, 2020 13 hours ago, Scott Lloyd said: Should the Church have to “get out of the marriage business” to exercise its religion freely? What about the First Amendment? I did not say it did. I said this is a work around if it ever came to that. But I doubt it will ever come to that.
Daniel2 Posted June 23, 2020 Posted June 23, 2020 (edited) 15 hours ago, JLHPROF said: Depends on what the job requirements are. https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification Really good stuff, JLHPROF.... thanks for sharing the link. Quoting from the portion on how BFOQ applies in the United States is pertinent to our discussion about how it intersects with religion and religious organizations (both the LDS church and BYU certainly come to mind as I read the parts which I bolded, below): Quote In employment discrimination law in the United States, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act contain a BFOQ defense. The BFOQ provision of Title VII provides that: t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise ...[3] United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that It shall not be unlawful for an employer, employment agency, or labor organization (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located.[4] One example of bona fide occupational qualifications are mandatory retirement ages for bus drivers and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men's clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty be members of that denomination, and may lawfully bar from employment anyone who is not a member. Fire departments can require firefighters to be able to lift a given weight to demonstrate that they will be able to carry fire victims out of a burning building. While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ. However, the First Amendment will override Title VII in artistic works where the race of the employee is integral to the story or artistic purpose.[5] (This consideration is not limited to race.) Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example, a Catholic college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions. Mere customer satisfaction, or lack thereof, is not enough to justify a BFOQ defense, as noted in the cases Diaz v. Pan Am. World Airways, Inc.[6] and Wilson v. Southwest Airlines Co.[7] Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant.[8] However, there may be cases in which customer preference is a BFOQ – for example, femininity is reasonably necessary for Playboy Bunnies.[9] Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided."[10] While certain other laws don't contain a BFOQ defense, the general import of such a defense is often recognized. For example, the Americans with Disabilities Act (ADA) does not contain a BFOQ defense; nonetheless, according to the United States Equal Employment Opportunity Commission, "an employer may defend the use of a qualification standard that screens out an individual on the basis of disability by showing that the standard is job related and consistent with business necessity."[11] Edited June 23, 2020 by Daniel2
Teancum Posted June 23, 2020 Posted June 23, 2020 14 hours ago, JLHPROF said: Depends on what the job requirements are. https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification This assumes someone meets the qualifications.
Daniel2 Posted June 23, 2020 Posted June 23, 2020 (edited) 14 hours ago, Scott Lloyd said: Should the Church have to “get out of the marriage business” to exercise its religion freely? What about the First Amendment? FWIW, no, no church should be required to "get out of the marriage business," because marriage ceremonies themselves AREN'T "a business," strictly speaking (nor will any church 'be required to get out of the marriage business,' IMO, since the U.S. has extremely broad freedoms that allow virtually anyone to officiate over a marriage ceremony, regardless of religious or state affiliations). Anyone can get married by whomever they want to, and as far as I'm aware, the law requires no payment for a marriage ceremony; it only requires the application and any nominal processing fees for a marriage license (as it does for any legal document; in Utah, the license fee is $30). Religions are free to charge or not to charge; that's a private arrangement between the couple and the officiant, and one upon and within which the government isn't involved (as I recall, there's no fee for temple sealings, again underlying the point that the church isn't in "the marriage business"--though I suppose some would try to argue the fee is paid via tithing--a concept I would disagree with, as it's not directly related, and is tangential to the point anyway, since the government isn't involved in any monetary exchange between couples and their officiant, whether religion is involved or not). Edited June 23, 2020 by Daniel2
The Nehor Posted June 23, 2020 Posted June 23, 2020 17 hours ago, Teancum said: The Church can get around any imposition of requiring temple marriages for gay individuals simply by getting out of the marriage business. It can require members to get a civil marriage as required in many nations and have a temple sealing an ordinance rather than an official marriage. The Church is not currently required to perform heterosexual marriages. If a couple wants to be married in the temple and a Bishop or Stake President says "no" it is not happening. There is no compulsion to perform marriages except by government officials whose job it is to provide marriage licenses to anyone whose request is legally valid. If the government starts trying to dictate and compel temple marriages then I will start worrying about a slippery slope and not before. 4
Scott Lloyd Posted June 23, 2020 Posted June 23, 2020 8 hours ago, Teancum said: I ask because it is a relevant question. But Your example is specious as you know I was not referring to jobs that require certain qualifications. So let's clarify it. Should someone be able to not hire you because your are a Latter day Saint even if you are qualified for the job? I responded to the question that you posed. It was NOT a specious response “as you know.” People need to have the requisite qualifications to be considered for any position, and yes, for some positions, requisite qualifications are religious in nature. That’s the point I was making, and it ought to be a non-controversial one. 1
Scott Lloyd Posted June 23, 2020 Posted June 23, 2020 7 hours ago, Daniel2 said: FWIW, no, no church should be required to "get out of the marriage business," because marriage ceremonies themselves AREN'T "a business," strictly speaking (nor will any church 'be required to get out of the marriage business,' IMO, since the U.S. has extremely broad freedoms that allow virtually anyone to officiate over a marriage ceremony, regardless of religious or state affiliations). Anyone can get married by whomever they want to, and as far as I'm aware, the law requires no payment for a marriage ceremony; it only requires the application and any nominal processing fees for a marriage license (as it does for any legal document; in Utah, the license fee is $30). Religions are free to charge or not to charge; that's a private arrangement between the couple and the officiant, and one upon and within which the government isn't involved (as I recall, there's no fee for temple sealings, again underlying the point that the church isn't in "the marriage business"--though I suppose some would try to argue the fee is paid via tithing--a concept I would disagree with, as it's not directly related, and is tangential to the point anyway, since the government isn't involved in any monetary exchange between couples and their officiant, whether religion is involved or not). I don’t disagree with any of this. “Get out of the marriage business” seems to be a stylistic way of saying “cease to perform legal marriages,” though. I don’t think it is meant to imply a capitalistic venture or that sort of thing. I suppose one could ask Teancum what he meant by it as it is he who used the phrasing. 1
Scott Lloyd Posted June 23, 2020 Posted June 23, 2020 (edited) 16 hours ago, Daniel2 said: From a legal perspective, I think there's no question about the answers to your questions. Legally, churches (Baptist, Jewish, Mormon, Catholic, whatever) are free to deny employment to any individual who doesn't conform to their religious tenants. On the other hand, privately-owned companies and organizations operating in the public sector (and therefore non-church-owned businesses) must comply with non-discrimination laws (as well as public accommodation laws) and cannot violate said laws based on privately-held religious beliefs. Said differently, in the United States, the concept or "religious freedom" does not include any "right to discriminate," even when complying with non-discrimination laws may contradict private business owners' personally-held religious beliefs. From my personal perspective, I think that's the way it should be. Religious freedom should protect churches and religiously-owned entities' employment requirements, whereas non-church-owned companies should comply with non-discrimination law. For all the bluster over the issue here on the board, most people I've personally spoken with agree on both of these two points. And while the issue is sometimes more nuanced than that, figuring out those gray areas--where and how the law is/should be applied, if it's unclear--is we have courts, which is why the Supreme Court mentioned any such issues would/could/will be addressed, as needed. Let’s take a hypothetical. Southern Virginia University, while not owned by The Church of Jesus Christ of Latter-day Saints, is patterned after Church schools and emulates their objective to impart knowledge while building faith. It very much appeals to adherents to the Latter-day Saint faith, and they might be regarded as it’s raison d’etre. Should the SVU administration be required to consider for appointment to its faculty one who is not a Church member AND whose public pronouncements have been antagonistic toward the Church? Edited June 24, 2020 by Scott Lloyd 2
Daniel2 Posted June 24, 2020 Posted June 24, 2020 On 6/23/2020 at 9:34 AM, The Nehor said: The Church is not currently required to perform heterosexual marriages. If a couple wants to be married in the temple and a Bishop or Stake President says "no" it is not happening. There is no compulsion to perform marriages except by government officials whose job it is to provide marriage licenses to anyone whose request is legally valid. If the government starts trying to dictate and compel temple marriages then I will start worrying about a slippery slope and not before. Well said. Should the government attempt to force any church or it's clergy, acting in their role as such, to perform marriages that violate the tenets of their religious Faith, I will be just as passionate about defending said church and it's clergy from unjust governmental coercion as I am in defending LGBT equality. 1
Daniel2 Posted June 24, 2020 Posted June 24, 2020 18 hours ago, Scott Lloyd said: I don’t disagree with any of this. “Get out of the marriage business” seems to be a stylistic way of saying “cease to perform legal marriages,” though. I don’t think it is meant to imply a capitalistic venture or that sort of thing. I suppose one could ask Teancum what he meant by it as it is he who used the phrasing. I agree and think we're on the same page, here. I also don't believe the LDS or any other church (and by extension, the members of it's clergy) will ever be "forced to get out of the marriage business" over LGBT equality, in any sense of what that phrase means, since the U.S. government employs virtually no religious or non-religious test in recognizing marriage officiants.
Daniel2 Posted June 24, 2020 Posted June 24, 2020 (edited) 19 hours ago, Scott Lloyd said: Let’s take a hypothetical. Southern Virginia University, while not owned by The Church of Jesus Christ of Latter-day Saints, is patterned after Church schools and emulates their objective to impart knowledge while building faith. It very much appeals to adherents to the Latter-day Saint faith, and they might be regarded as it’s raison d’etre. Should the SVU administration be required to consider for appointment to its faculty one who is not a Church member AND whose public pronouncements have been antagonistic toward the Church? From Wiki's article, Southern Virginia University is: Quote "a private liberal arts college in Buena Vista, Virginia. The school, though not officially affiliated with a particular faith, embraces the values of The Church of Jesus Christ of Latter-day Saints (LDS Church). It was founded in 1867 as a school for girls, and is now a private four-year coeducational institution. SVU is regionally accredited by the Southern Association of Colleges and Schools." From the educational resource website, etools4education,: Quote Title VII of the Civil Rights Act of 1964 was a landmark law enacted in terms of leveling the playing field for potential job applicants and employees. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin (eeoc.gov). Title VII is considered to be the most important equal opportunity law ever enacted because it contains the broadest coverage, prohibition and remedies to individuals. Title VII was passed to ensure you would be considered for jobs not on the basis of the color of their skin, religion, gender or their national origin. Rather, you should be selected on the basis of the abilities necessary to perform a job. Title VII applies to all school districts, private schools and charter schools. You have the right to file charges against your employer, administrators or co-workers if discriminatory practices outlined in Title VII of the Civil Rights Act of 1964 are not followed. In 1972, Title IX was passed, which states: Quote No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.— Cornell Law School's Legal Information Institute (20 U.S. Code § 1681 – Sex) (Emphasis added on each of the above quotes). From what I can see, Title VII and Title IX requirements already do apply to private, but non-religiously-owned, schools and universities, which includes Southern Virginia University. In fact, SVU's online catalog attests, in compliance with Title VII and Title IX, that it "does not discriminate on the basis of race, color, religion, national or ethnic origin, sex, age, disability, or veteran’s status in its educational programs and activities, admissions, and with regard to employment.": Quote In compliance with Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and all other applicable non-discrimination laws, Southern Virginia University does not discriminate on the basis of race, color, religion, national or ethnic origin, sex, age, disability, or veteran’s status in its educational programs and activities, admissions, and with regard to employment. Inquiries may be directed to Stephanie Hardy, Title IX Coordinator, One University Hill Drive, Buena Vista, VA 24416, 540-261-4090, or stephanie.hardy@svu.edu. Mrs. Hardy is designated by the University to coordinate compliance efforts and carry out its responsibilities under Title IX, Section 504, and other applicable non-discrimination laws. In sum and in answer to your "hypothetical" question: By it's own stated standards, then, the school already is on record as being "required to consider for appointment to its faculty one who is not a Church member AND whose public pronouncements have been antagonistic toward the Church," since, by its own admission, it does not discriminate on the basis of religion. I'm curious, though... Do you believe SVU will likely object to, withdraw it's intent to comply with, and/or seek to change non-discrimination laws, now that LGBT individuals have been found to be covered by Title VII? Edited June 24, 2020 by Daniel2
Scott Lloyd Posted June 24, 2020 Posted June 24, 2020 2 hours ago, Daniel2 said: From Wiki's article, Southern Virginia University is: From the educational resource website, etools4education,: In 1972, Title IX was passed, which states: (Emphasis added on each of the above quotes). From what I can see, Title VII and Title IX requirements already do apply to private, but non-religiously-owned, schools and universities, which includes Southern Virginia University. In fact, SVU's online catalog attests, in compliance with Title VII and Title IX, that it "does not discriminate on the basis of race, color, religion, national or ethnic origin, sex, age, disability, or veteran’s status in its educational programs and activities, admissions, and with regard to employment.": In sum and in answer to your "hypothetical" question: By it's own stated standards, then, the school already is on record as being "required to consider for appointment to its faculty one who is not a Church member AND whose public pronouncements have been antagonistic toward the Church," since, by its own admission, it does not discriminate on the basis of religion. I'm curious, though... Do you believe SVU will likely object to, withdraw it's intent to comply with, and/or seek to change non-discrimination laws, now that LGBT individuals have been found to be covered by Title VII? “By its own stated standards” it must do this? According to your quote, SVU “embraces the values of The Church of Jesus Christ of Latter-day Saints.” You’re telling me that a university would (and I assume you also mean it should) be compelled to hire someone who stridently opposes the values it professes to embrace? Let’s take another hypothetical. Tuskegee University is a historically all-black educational institution in Alabama founded by Booker T. Washington, a brilliant educator and former slave, and dedicated to the advancement of persons of African descent. Consistent with your reasoning, I suppose you would favor Tuskegee being forced to consider for appointment to its faculty an avowed white supremacist. To get back to the earlier question I believe institutions such as SVU and Tuskegee ought to be allowed to restrict employment based on whether candidates comport with the stated values of the respective institution. So, with regard to your question, I don’t represent SVU and thus am not able to state what it would and would not do. I do believe, though, that a reasonable position for it to take would be to consider for hiring to the faculty such an individual depending on whether his or her values comported with the values of the Church of Jesus Christ. As you know, the Church welcomes all people regardless of sexual orientation so long as they embrace the values of the Church. 1
nuclearfuels Posted June 25, 2020 Posted June 25, 2020 On 6/15/2020 at 12:45 PM, smac97 said: Gorsuch's opinion recognizes the Title VII exception for religious organizations, saying, "We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.” SCOTUS couldn't care less about religious freedom and I couldn't care less about their rulings.
Daniel2 Posted June 25, 2020 Posted June 25, 2020 (edited) 19 hours ago, Scott Lloyd said: “By its own stated standards” it must do this? According to your quote, SVU “embraces the values of The Church of Jesus Christ of Latter-day Saints.” You’re telling me that a university would (and I assume you also mean it should) be compelled to hire someone who stridently opposes the values it professes to embrace? Scott, I appreciate the ongoing discussion and chance to clarify our positions. I haven't said what you're suggesting I said, not to mention flat out admitting "you assume" what I mean. To clarify: In answer to your question, I previously said the following (to which I've bolded the salient parts I'm attempting to clarify): "By it's own stated standards, then, the school already is on record as being "required to consider for appointment to its faculty one who is not a Church member AND whose public pronouncements have been antagonistic toward the Church," since, by its own admission, it does not discriminate on the basis of religion." You repeated your point that although it's not owned by the LDS Faith, that SVU does "embrace the values of The Church of Jesus Christ of Latter-day Saints." As you know the 12th Article of Faith clearly states that Latter-day Saints "believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law." That is SVU's own value that seems to me to apply (and to which I was referring) to it's professed willingness to support and comply with Title VI and Title IX laws. So the School itself is on record as fully supporting non-discrimination ordinances and laws (both Title VII and Title IX). Further, your question asked if a school should "be required to consider for appointment," which I understood to mean that they would not automatically dismiss applicants based on whether or not they are a member of any given Faith. Your question was not about "should they be compelled to hire," which is a different thing, all together. You may have meant "should the be compelled to hire" in your original question, but that isn't what you said, nor is it what I was referring to, which, as already mentioned, was about "being required to consider for appointment," regardless of relgion. But you've also further extrapolated my words to include things you "assume also mean [schools] should...be compelled to hire someone..." Again, that isn't what I said, nor is it what I intended to say. In sum then, from what I understand, employers (including schools) cannot base employment considerations based on religion (the membership status of applicants). Admittedly, I was focused on the first aspect of your question, but didn't really address the latter half, which was "whose public pronouncements have been antagonistic to the Church." From what I understand, conduct is different than religious membership. Here: Quote Can I be denied employment by a religious organization on religious grounds? Under certain circumstances, some religious institutions enjoy exemptions from federal laws covering religious discrimination. If the organization is a religious corporation, association, educational institution or society, then it is allowed under Title VII to hire only individuals of a particular religion to "perform work connected with the carrying on by such corporation, association, educational institution or society of its activities." For example, a Catholic school or university can require that all of the teachers it hires be Catholic. While such exemptions may provide a defense to a discrimination claim based upon religion, religious institutions are not permitted to discriminate on grounds other than religion merely because of the institution's religious character. Therefore, a Baptist institution could hire only Baptists, but could not refuse to hire African-Americans or applicants with disabilities. Some courts have ruled recently that such religious organizations can legally discriminate against employees who do not subscribe or conform to their beliefs. In two cases involving gay employees who were terminated after their employers learned about their sexual orientation, courts upheld the right of both religious employers to terminate those employees because homosexuality was incompatible with the organizations' religious values. However, both cases occurred in states without a state law making it illegal to discriminate on the basis of sexual orientation. The outcome might have been different in states with these laws. Religious employers have also been allowed to fire pregnant employees for engaging in premarital sex where it was against the beliefs of the religion, but were required to show that all employees, including men or women who were known to engage in premarital sex (even without a resulting pregnancy) were treated similarly. All of the above sounds reasonable, to me. To bluntly state my personal view (which I believe is also reflected in the law as explained above), if a private school has a universally-requireded Code of Honor that mandates refraining from certain types of conduct (pre-marital sex, abstinence from alcohol or same-sex or interracial behaviors), then yes, I believe they should be able to refuse to hire and fire employees who violate such stated standards of conduct. I wouldn't expect a gay LDS teacher at SVU who ultimately chooses to pursue a romantic relationship with a member of his own gender to keep his job, or prevail against the school, should he chooses to try to sue. Quote Let’s take another hypothetical. Tuskegee University is a historically all-black educational institution in Alabama founded by Booker T. Washington, a brilliant educator and former slave, and dedicated to the advancement of persons of African descent. Consistent with your reasoning, I suppose you would favor Tuskegee being forced to consider for appointment to its faculty an avowed white supremacist. No, consistent with my stated views above, based on my understanding Tuskegee University cannot refuse to consider for employment said applicant on the basis of the applicant's race (that is, the school couldn't refuse to consider the applicant because the applicant is white); but Tuskegee most certainly could consider the conduct of the applicant and choose not to hire him (without coercion either way) because his conduct violates their code of conduct. Quote To get back to the earlier question I believe institutions such as SVU and Tuskegee ought to be allowed to restrict employment based on whether candidates comport with the stated values of the respective institution. Since the determining factor is conduct which violates said organizations' values, I agree with you that they are and should be free to set those rules. Quote I do believe, though, that a reasonable position for it to take would be to consider for hiring to the faculty such an individual depending on whether his or her values comported with the values of the Church of Jesus Christ. As you know, the Church welcomes all people regardless of sexual orientation so long as they embrace the values of the Church. Yes, as stated previously, I think we're on the same page here. What I'm unclear on is whether Title IX would apply to such non-religiously-owned private schools.... can they still take Federal Funds, in light of Title IX? I don't know.... Edited June 25, 2020 by Daniel2 1
Daniel2 Posted June 25, 2020 Posted June 25, 2020 14 minutes ago, Daniel2 said: What I'm unclear on is whether Title IX would apply to such non-religiously-owned private schools.... can they still take Federal Funds, in light of Title IX? I don't know.... After doing some additional research, it does appear even private schools are exempt from certain requirements of Title IX, including "private undergraduate colleges" and "private schools controlled by religious organizations." I'm not sure if SVU applies, but there's a venue for it to apply for such. All of the below seems reasonable, to me. Additionally, the sky doesn't appear to be falling, as much as fear might make it tempting or easy to fall into the trap of so-feeling. Exemptions from Title IX Protecting Students > Sex Discrimination >> Title IX generally prohibits a recipient institution from excluding, separating, denying benefits to, or otherwise treating students differently on the basis of sex in its educational programs or activities unless expressly authorized to do so under Title IX. Title IX and its implementing regulations contain several exemptions and exceptions from its coverage, including for the membership practices of certain organizations and admissions to private undergraduate colleges. As described in more detail below, the Title IX regulations offer a process by which an educational institution can inform OCR that it is claiming a religious exemption by submitting a written statement to the Assistant Secretary for assurance that OCR acknowledges the institution’s exemption. No similar process exists in the regulations for any other exemption. An institution’s exempt status is not dependent upon its submission of a written statement to OCR. Additional information on exemptions from Title IX’s coverage can be found below. Links to Title IX of the Education Amendments of 1972 and its implementing regulations: 20 U.S.C. § 1681: Title IX statute 34 C.F.R. Part 106: Title IX regulations Note that some of the documents linked on this page were not generated by the Department of Education, or are scanned copies of older Departmental documents. Each document generated by the Department after January 1, 2009 is a PDF that contains, at a minimum, machine readable text. If you are a person with a disability who cannot fully access the contents of a document on this page, please contact OCR@ed.gov Private undergraduate colleges (admissions exempt) Public elementary and secondary schools (admissions exempt) Private schools controlled by religious organizations (any application contrary to religious tenets exempt) Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12. How can a religious school get assurance from OCR that it is exempt from certain provisions of Title IX? The Department’s Title IX regulations provide that, if an educational institution wishes to claim an exemption, the highest ranking official of the institution submit a written statement to the Assistant Secretary for Civil Rights, identifying the provisions of Title IX that conflict with a specific tenet of the religious organization. A claim for a religious exemption may be mailed to the Assistant Secretary for Civil Rights at 400 Maryland Ave., SW, Washington, DC 20202, or emailed to OCR@ed.gov. See 34 C.F.R. § 106.12. Is a religious school required to submit a written statement to OCR in advance of claiming a religious exemption? No. The regulation does not require that a recipient institution submit a written claim of exemption. Primarily, the written claim or “request” for exemption from an institution is a request for assurance from OCR of exemptions to certain sections of the regulation. Religious institutions that have neither sought nor received prior written assurance from OCR may still invoke their exemption after OCR receives a Title IX complaint. See AAS Smith Memo (Oct. 1989). How does OCR evaluate a written statement claiming a religious exemption? In responding to a written statement claiming a religious exemption, OCR evaluates whether the statement complies with the regulatory requirement to identify the religious organization that controls the educational institution and specify the provisions of Title IX or its regulations that conflict with the tenets of the religious organization. See 34 C.F.R. § 106.12. How does an educational institution establish that it is “controlled” by a religious organization? An institution will generally be considered to be controlled by a religious organization if one or more of the following conditions is true: (1) It is a school or department of divinity, defined as an institution or a department or branch of an institution whose program is specifically for the education of students to prepare them to become ministers of religion or to enter upon some other religious vocation, or to prepare them to teach theological subjects; or (2) It requires its faculty, students or employees to be members of, or otherwise espouse a personal belief in, the religion of the organization by which it claims to be controlled; or (3) Its charter and catalog, or other official publication, contains explicit statement that it is controlled by a religious organization or an organ thereof or is committed to the doctrines of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof. OCR evaluates a religious exemption claim consistent with the requirements of the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act. See AS Singleton Memo (Feb. 1985). How does OCR determine whether a provision of Title IX conflicts with religious tenets? OCR asks an institution to specify the provisions of the Title IX or the Title IX regulation from which an institution is seeking exemption and the religious tenets that conflict with those provisions. OCR, in “granting” an exemption, primarily ensures that the institution has cited the correct sections of the regulation in its request. Otherwise, OCR clarifies which sections of the regulation are applicable to an institution’s exemption request. A school claiming an exemption may refer to scripture, doctrinal statements, catalogs, statements of faith, or other documents reflecting religious tenets. To avoid possible constitutional entanglements and expedite OCR’s processing of these requests, an institution may submit a statement of its practices, as based on its religious tenets, rather than a statement of its tenets. See AAS Smith Memo (Oct. 1989); AS Singleton Memo (Aug. 1985). Where can I find other records related to OCR’s process for evaluating religious exemptions? The following documents describe OCR’s process: Acting Assistant Secretary William L. Smith Memo to OCR Senior Staff re Title IX Religious Exemption Procedures and Instructions for Investigating Complaints at Institutions with Religious Exemptions (Oct. 11, 1989) PDF 907.5K Assistant Secretary Harry M. Singleton Memo to Regional Civil Rights Directors re Title IX Religious Exemptions (Aug. 2, 1985) PDF 2.9M Assistant Secretary Harry M. Singleton Memo to Regional Civil Rights Directors re Policy Guidance for Resolving Religious Exemption Requests (Feb. 19, 1985) PDF 2.8M Assurance of Compliance with Title IX, HEW Form 639-A (Mar. 18, 1977) PDF 617.4K Additional records, including correspondence with schools, can be found at the Other Correspondence page. 1
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