Religious organisations and their employees- new US decision

Can a religious organisation hire and fire staff in accordance, not just with their commitment to its doctrinal beliefs, but also on the basis of whether they conform to moral teachings? This was the issue in the background of a recent US decision, and it is interesting to note how this might play out in Australia.

The Conlon decision

The United States (Federal) Court of Appeals, 6th Circuit, has just handed down its decision on appeal in Conlon v InterVarsity Christian Fellowship/USA (No 14-1549, 5 Feb 2015), holding that Ms Conlon, who was dismissed as a “spiritual director” by IVCF, cannot file a Federal (or State) sex discrimination claim against the organisation. IVCF is an organisation that operates on many University campuses in the US, supporting evangelical gospel ministry there. (Full disclosure in case it is relevant: I have been a long time supporter of the Australian Fellowship of Evangelical Students, AFES, a similar organisation in this country which is, like IVCF/USA, a part of a wider global network, the International Fellowship of Evangelical Students, IFES.) Ms Conlon worked from 2004-2011 as a “spiritual director” assisting IVCF staff workers in their spiritual growth. When she started discussing problems within her marriage, and in particular flagged her possible divorce in March 2011, IVCF supervisors put her on paid leave to support her while dealing with this issue. When by the end of 2011 that seemed not to be working, her employment was terminated in December 2011.

The employment conditions for IVCF staff, which were made clear by the organisation from the outset, required that staff annually reaffirm their commitment to the IVCF Purpose Statement and Doctrinal Basis. The court quotes early in their decision a phrase (which I assume comes from the Purpose Statement), to the effect that

IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.”

Presumably the IVCF leaders, although the decision does not make this clear, took the view that Ms Conlon would, if she were divorced, not provide an appropriate model of Christian behaviour in this area. I want to be clear that I am not making any comment on the rights and wrongs of this decision. Despite my general support for IFES and its affiliates, I know nothing about the decision in this case and whether it was godly, wise or justified. In fact, it somewhat disturbs me that the court notes that Ms Conlon alleges that two similarly situated male employees were divorced while working for IVCF, but were not disciplined or terminated (see p 3 of the decision.) But of course there are divorces and divorces, and difficult decision have to be made in these circumstances.

The fact that life can be so messy, and that decisions about who should be employed in spiritual leadership are so dependent on a number of fuzzy criteria, may be partly what lies behind the doctrine of the “ministerial exception” in US law, which was successfully relied on here by IVCF. Formally the doctrine is driven by the First Amendment to the US Constitution, forbidding the Establishment of a state church (and excessive “entanglement” by the state in religious groups) and setting out rights of Free Exercise of religion. The doctrine has been applied by lower courts for a while, but received endorsement by the US Supreme Court for the first time a few years ago in its decision in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012). I discussed this decision in detail in an earlier paper, but in brief the main relevant part is that the USSC held (somewhat surprisingly for a religion clause decision, unanimously) that Federal employment discrimination laws could not apply to “claims concerning the employment relationship between a religious institution and its ministers” (at 705).

Applying Hosanna-Tabor, the 6th Circuit here held that IVCF clearly qualified as a “religious organisation” (not only its name, but its mission statement and activities were all directed to religious ends), and that the position that Ms Conlon held of “spiritual director” satisfied at least 2 of the 4 criteria set out by the SC for an employee being regarded as a “minister” : the title of her role, “spiritual” director, and the religious functions she carried out, being responsible for assisting the “spiritual growth” of other IVCF staff. (See the discussion at pp 7-8: the court did not explicitly find that the other 2 factors were not present, being formal theological training and use of the title in public contexts; they just held that there was not enough evidence to make a finding. But the other 2 factors were, in this case, sufficient.)

The result was that under the authority of Hosanna-Tabor the court could not entertain a claim for discrimination under federal law; and they also ruled that since the decision was based on the Constitutional rights granted under the First Amendment, and it had long been held that the First Amendment applied to the States as well as to the Federal Congress, nor could a claim under State law be made (see pp 10-11.)

Australian law?

How would this matter be resolved under Australian law? I will comment on the application of the Federal legislation, the Sex Discrimination Act 1984 (Cth) (‘SDA’)- I think a similar analysis would apply under most State laws.

Under the SDA there would be a possible prima facie claim that a decision to dismiss someone because of their divorce would be discrimination based on “marital or relationship status”, which is one of the alternative grounds of unlawful discrimination in employment- see s 6, and the definition of “marital or relationship status” which includes the state of being “divorced”. I am not sure, in fact, whether this is a claim that would be possible under US law- the court in Conlon refers simply to the differential treatment of divorced men as opposed to the claimant, who is a woman. Under the SDA that might also give rise to a straightforward gender-based discrimination claim under s 5(1), whereby by reason of

(a)  the sex of the aggrieved person…. the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

Under s 14(2)(c), in Division 1 of Part II, it is unlawful for an employer to discriminate on the basis of marital or relationship status, or sex, “by dismissing the employee.”

While there is no general Hosanna-Tabor principle under Australian law, there are “balancing provisions” in the SDA designed to protect the religious freedom of certain organisations. Under s 37(1) in Part II:

  (1)  Nothing in Division 1 or 2 affects:

                     (a)  the ordination or appointment of priests, ministers of religion or members of any religious order;

                     (b)  the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

                     (c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

                     (d)  any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Should a local student religious group dismiss a staff-worker in similar circumstances to those in Conlon, then it would need to show that the circumstances fell within s 37. It would probably be difficult to establish that a student staff-worker was a “minister of religion” under paras (a) and (b). It is possible that para (c) could apply but that would depend whether a “religious observance or practice” was broad enough to cover not just “rituals” but also the general practice of evangelism and bible studies, for example. Para (d) would probably apply: a group of this sort would be a “body established for religious purposes”, and the “practice that conforms to the doctrines, tenets or beliefs of that religion” would be arguably the policy of requiring staff members to conform to Biblical standards of sexual behaviour, including practices in relation to divorce. Possibly the bar would be set a bit higher in Australian than in the US: whereas under Hosanna-Tabor the court would not even begin to inquire into the religious criteria used, in Australia the organisation might need to make a plausible case that their decision could be justified by a set of doctrines and beliefs that were at least a possible reading of their religious tradition.

There a number of uncertainties, then, as to how an Australian court would deal with these matters. Those uncertainties are unfortunately compounded by the differing views expressed in the Victorian Court of Appeal decision in Christian Youth Camps v Cobaw [2014] VSCA 75, discussed in a previous post. One reading of Cobaw might suggest that matters of sexual behaviour, even decisions about divorce, were not part of the “doctrines, tenets or beliefs” of a Christian organisation (a view I would disagree with.) Another issue is that whether any disciplinary action taken “conforms” to those beliefs, so that the court would be given the task of coming up with an authoritative interpretation of the Biblical material on divorce! (A matter that mainstream Christian churches, and groups within churches, have disagreed on for the last 2000 years…)

In my view, despite what was said in Cobaw, the best approach is for the courts to grant a wide “margin of appreciation” (to use a phrase drawn from European jurisprudence) to religious groups, so that so long as a decision seems to be made in a good faith and consistent interpretation of their own doctrines (not in a “sham” way to achieve a particular outcome), then courts should recognise their freedom to determine who is suitable to work in key positions in these organisations. But whether this is the way that courts go in Australia remains to be seen.