Editor's Note: The article below is excerpted from the author's new book, "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" (Cato Institute, 2003)
Antidiscrimination laws (search) are colliding with civil liberties at many levels -- on the job, in public spaces, and on campuses. Left-wing egalitarian activists are pushing hard to eliminate every perceived slight, offense, injustice and politically incorrect action they can identify. At religious schools the conflict is intense, as the examples below show--and it's sparking more court battles that have yet to settle the problem.
The First Amendment (search) protects the free exercise of religion and prohibits governmental establishment of religion. The Constitution prohibits the government from interfering in the hiring and firing of ''ministerial'' church employees, including religion teachers at church-sponsored schools. However, courts have held that antidiscrimination laws can still regulate the employment of teachers of secular subjects in religious schools.
One such teacher, Linda Hoskinson, felt a calling to teach in Christian schools. She found employment as a grade school instructor at Dayton Christian Schools (search), an affiliate of two of Dayton, Ohio's strict fundamentalist churches. DCS sought to employ only teachers who would ''carry with them into their classes the religious fervor and conviction felt necessary to stimulate young minds into accepting Christ as savior.'' Hoskinson seemed to have found her niche.
However, when Hoskinson informed the DCS administration that she and her husband were expecting a baby, she was told that her contract would not be renewed. The school's sponsoring churches believe that mothers of young children should not be employed outside of the home, so continuing to employ Hoskinson would flout church doctrine.
Hoskinson consulted an attorney, who informed DCS that it was violating Hoskinson's rights under federal and state antidiscrimination laws, even though DCS had accepted no government funding. DCS responded by immediately firing Hoskinson for violating the ''Biblical Chain of Command (search)," a belief adhered to by some Christian sects, including DCS's sponsors, that all disputes among members of the church should be resolved within the church. Like all DCS employees, Hoskinson had agreed in her contract to abide by the Biblical Chain of Command, but had broken that agreement when she took her problems with church policy to an outside lawyer.
Hoskinson filed a sex discrimination complaint with the Ohio Civil Rights Commission. The commission investigated, and urged DCS to sign a settlement agreement that stipulated, among other things, that contrary to DCS's belief in resolving disputes within the church, DCS "shall make clear in its employment contracts that employees may contact the Commission if they believe they are being discriminated against at any time."
When DCS received the proposed agreement, it filed a suit in federal court asking that the court protect DCS's free exercise of religion by prohibiting the commission from investigating and prosecuting the school. The court rejected DCS's free exercise claim, reasoning that the commission's enforcement of Ohio's antidiscrimination law placed only ''a minimal burden'' on the plaintiffs' free exercise rights. No mothers with young children would be forced to work; DCS needed only to refrain from firing Hoskinson.
The court did not address the plaintiffs' claim that by forcing DCS to employ a teacher who disobeyed church teachings, the law threatened the plaintiffs' ability to impress upon the students the importance of church doctrine.
Although the court downplayed the importance of the case to the plaintiffs, it found that the state had a compelling interest in eliminating ''all forms of discrimination,'' and in preventing young people from being educated ''in an atmosphere of discrimination.'' An appeals court reversed the lower court decision, finding that the Commission's investigation violated the plaintiffs' free exercise rights, and that those rights were not trumped by the government's interest in eradicating discrimination.
The commission appealed to the Supreme Court. The case divided liberal civil libertarian organizations. The American Civil Liberties Union sided with the commission, while Americans United for the Separation of Church and State supported the school's position. The Supreme Court ultimately sidestepped the civil liberties issue by reversing the appeals court on the grounds that the federal courts should not have interfered in ongoing state proceedings.
Finally, after DCS had spent more than $100,000 defending itself, Hoskinson dropped her lawsuit. Hoskinson, who in the meantime had given birth to three children, and who had not returned to teaching, was unapologetic. She said, "If a person who is in a religious institution cannot have the protection of the law, then I think we're in for some serious problems, because if they don't have the protection of the law, there's going to be a vacuum there they're just sucked into."
Recall, however, that Hoskinson had not been "sucked into" teaching in a school that taught and enforced conservative Christian values. She had actively sought out such an environment.
...South Carolina's Bob Jones University, which is famously sponsored by a strict fundamentalist Christian sect, screens its students for their religious beliefs to ensure compatibility with the school's mission, and the university requires all students to conform to a stringent code of conduct.
Until 1971, the university excluded African American students. In 1971, the school, under pressure from federal civil rights authorities, began admitting married African American students. Following a 1975 court ruling requiring private colleges to admit African Americans, the university began admitting unmarried African American students as well.
The university, however, contemporaneously banned interracial dating on penalty of expulsion. The university's founders claimed that the policy stemmed from a belief that the Bible prohibits interracial marriage, but others suspected that such explanations were merely a weak pretext for racial discrimination. And then the tax man got involved.
The IRS revoked Bob Jones' tax-exempt status when it concluded that the university's ban on interracial dating constituted discrimination in violation of public policy. The university sued, alleging that because the university was theologically opposed to interracial marriage, the IRS revocation infringed on the university's free exercise of religion.
The case reached the Supreme Court, which acknowledged that IRS denial of tax benefits to universities that discriminated on religious grounds would "inevitably have a substantial impact on the operation of private religious schools." However, the Court held that this IRS policy was constitutionally permissible because the burden on universities was substantially outweighed by the government's ''fundamental, overriding interest in eradicating racial discrimination in education.''
The university abruptly gave up its purportedly ''sincere religious belief'' in banning interracial dating in 2000, after the university came under withering criticism following a visit by presidential candidate George W. Bush. Facing a loss of credibility, and possibly revenue, the university suddenly discovered that its ban on interracial dating was not theologically required, after all.
... The final outcome of the conflict between civil liberties and antidiscrimination laws remains unresolved. Meanwhile, the fear of litigation--fear not only of losing a lawsuit, but also fear of being vindicated only after a protracted, expensive legal battle--is having a profound chilling effect on the exercise of civil liberties in workplaces, universities, membership organizations and churches throughout the United States.
The author is a professor of law at George Mason University. The article below is excerpted from the author's new book, "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws," (Cato Institute, 2003)