To what degree can government, through the courts, control the hiring of those who serve a church as ministers? Not at all, according to the United States Court of Appeals for the Fourth Circuit.
Carole Rayburn holds a Master of Divinity degree from the Seventh-day Adventist Theological Seminary at Andrews University as well as a doctor ate in psychology from Catholic University in Washington, D.C. In 1979 she applied to the Potomac Conference of Seventh-day Adventists for an intern ship as an associate in pastoral care on the staff of the Sligo Seventh-day Adventist church in Takoma Park, Maryland. When Rayburn learned that the position had been given to another woman, she filed a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, alleging discrimination on the basis of sex and race. Although Rayburn is white, she alleged that her association with black persons and her membership in the Black Forum at Andrews University had contributed to her being denied employment.
Following statutorily mandated procedure, EEOC investigated the charge, published its finding, and issued Rayburn a right-to-sue letter, enabling her to file suit in the United States district court in Baltimore. In March, 1985, the district court decided for the church, and Rayburn appealed to the Fourth Circuit Court of Appeals, in Richmond, Virginia.
It would have been tempting for either court to dismiss the suit for lack of standing. Can a nonblack complain of discrimination against blacks? Is there a legitimate question of discrimination against women when the person hired for the Sligo position was also a woman? Before the court could even address these substantive questions, it had to decide whether it even had the right to scrutinize the hiring practices of a church.
Title VII itself provides that it does not apply "to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its religious activities" (42 U.S.C. Sec. 2000e-l). (Italics supplied. ) How does this relate to the hiring of a minister? Does it mean that a church, when hiring its own members, is free of all scrutiny? The Fourth Circuit, following the traditional interpretation, held that it means that a church may give preference to its own members, but does not confer a license to discriminate on any prohibited basis other than religious affiliation. The statutory exemption is to be interpreted very narrowly.
But the defendants--the General Conference, Potomac Conference, Kenneth J. Mittleider, and James Londis--challenged not only the scope of the Title VII exemption for religious institutions but also the constitutionality of applying Title VII scrutiny to the hiring of a minister. More simply put, even if Title VII applies, is that application acceptable under the First Amendment? According to the Fourth Circuit, it is not.
Church decisions and the courts
American courts grant almost total deference to ecclesiastical decisions. The Supreme Court, in the 1976 case of Serbian Orthodox Diocese v. Miliojevich (426 U.S. 696), said, "Civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law." The reason for the rule is simple: The right to choose its ministers without government interference is essential to the well-being and independence of any religious community. In the Rayburn case the court noted that the actual continuation of a church's existence may well depend on those it selects to preach its values, teach its message, and interpret its doctrines, both to its own membership and to the world at large, concluding that "any attempt by government to restrict a church's free choice of its leaders thus constitutes a burden on the church's free exercise rights."
The First Amendment to the Constitution of the United States provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. " But the right of free exercise is not absolute. When it conflicts with the rights of others or with certain overriding societal ideals, the free exercise of religion, either by a church or an individual, may be restricted. The legal analysis in such cases was set out by the Supreme Court in the 1963 case of Sherbert v. Verner (374 U.S. 398), where the Court held unconstitutional the denial of unemployment compensation to Sabbathkeepers. The Sherbert analysis asks three questions: 1. Would the challenged action constitute a significant burden on the free exercise of religion? 2. If so, is that burden justified by a compelling public interest? 3. If so, is there a less intrusive method of accomplishing the governmental objective?
In the Rayburn case the court closely examined the actual functions of the office in question: pastoral adviser to the children's Sabbath school and to the singles group, counseling members in a wide variety of situations, participating in the public evangelistic outreach of the church, and leading out in the rites of corporate worship. Fourth Circuit Court Judge Wilkinson found that "any of these functions so embodies the basic purpose of the religious institution that state scrutiny of the process for filling the position would raise constitutional problems; when all functions are combined, the burden of potential interference becomes extraordinary."
Having concluded that Title VII scrutiny of Rayburn's rejection for employment would constitute a significant burden on religious freedom, the court then moved to a balancing of that burden against a state's legitimate interest in eradicating unlawful discrimination in employment. In this case the balance) weighed in favor of free exercise of religion.
To exempt such employment decisions from scrutiny, at most, creates minimal infidelity to the objectives of Title VII, while to permit such scrutiny, introducing governmental standards to the selection of spiritual leaders, would significantly--and negatively--rear range the relationship between church and state. If such were permitted, churches, wary of EEOC or judicial review, might make employment decisions with an eye to avoiding litigation or governmental entanglement rather than solely on their own pastoral and doctrinal assessments of how best to serve the church.
Does this mean that churches are "above the law"? Clearly it does not. Taking this case with other recent cases involving employment by religious organizations, a pattern emerges: Churches are responsible in their actions and subject to the law. They may not discriminate in employment on the basis of sex, race, age, or national origin unless doing so because of doctrinal position. Therefore the Christian Science Monitor could legally discharge a homosexual reporter, because homosexuality is contrary to church doctrine (Madsen v. Erwin, Supreme Judicial Court of Massachusetts, Aug. 21, 1985). In that case the inquiry was to the doctrinal relationship to the employment decision. In addition, churches may lawfully discriminate in favor of their own members, although some state agencies advocate limiting that exemption to positions that are theologically sensitive. But in the employment of clergy, there is no inquiry into the reasons behind the decision. Said the Fourth Circuit Court: "The free exercise clause of the First Amendment protects the act of a decision rather than a motivation behind it. In these sensitive areas the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal content. " "Where the values of the state and the church differ, the church is legally entitled to pursue its own path without concession to the views of government."
In the words of Judge Wilkinson: "It is axiomatic that the guidance of the state cannot substitute for that of the Holy Spirit, and that a courtroom is not the place to review a church's determination of God's anointed."