The Structure of Civil Rights Laws

Civil rights laws have played an essential role in ensuring that everyone can live and flourish without being treated unjustly simply because of who they are. As one example, these laws prevent a diner from refusing service at a counter because of a person’s race.  Because our society is a melting pot of religious, cultural, racial, and identity-based communities, lawmakers have taken care to tailor civil rights laws to take everyone into account. Often, that means that these laws simultaneously bar certain actions—like the refusal by large a employer to hire someone based on the person’s sex or religion—while not reaching some entities or persons. For example, homeowners who rent rooms in their own home have been left aside from the federal civil rights acts because of their associational interest in deciding who will live with them in their home.

Often, taking account of all interests does not give those who are accommodated a pass from the law—it puts them in the same position as everyone else.

One of the most influential civil rights laws, Title VII of the Civil Rights Act of 1964, bans discrimination on a number of bases, like race and religion.  It also contains numerous accommodations, for unions, for employers who have needs for employees with certain qualifications—and for religious organizations and universities.  With a modern lens, one might be tempted to see these accommodations as a license to discriminate.  In reality, accommodations often operate to put religious employers in the same position as everyone else.

Consider the Sierra Club. The Sierra Club can legally require that anyone who applies or takes a job at the organization share their values, without running afoul of Title VII.  And of course the Sierra Club should be able to do this.  It would make no sense for the Sierra Club to be led by a climate denier.

The same principles applies to the Archdiocese of Philadelphia—it makes no sense to bar the Archdiocese from hiring a Catholic to lead the flock and priestly ranks.  But because Title VII bans religious discrimination for ordinary employers, it needed to give back to religious employers and universities the ability to hire to mission.  Accommodations in such laws are not blanket passes, they apply for specific purposes such as with religious duties or teachings. 
This common-sense approach permits religious employers to enjoy the discretion over hiring that other mission-driven organizations like the Sierra Club enjoy.

The idea that any accommodation from a civil rights law undermines the entire law is too simplistic.

Civil rights laws rectify discrimination based on a characteristic that is irrelevant to the job—one’s religion is irrelevant for employers that have nothing to do with religion. 

But civil rights laws are not devices for expunging religious groups or religion from public life.  Hence, the need for carve-outs from civil rights law that generally ban discrimination based on religion.  These carve-outs expressly allow decision making based on religion—and that is a good thing.  For religious employers, one’s religious commitments are defining and relevant, just as one’s commitment to the environmental is defining and relevant to the Sierra Club.