Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987)

The Supreme Court in Corporation of Presiding Bishop of the Church of Jesus Chris of Latter-Day Saints v. Amos (1987) addressed the important issue of whether statutory exceptions to otherwise generally applicable laws are constitutionally permissible as an accommodation to religious freedom. The nine to zero decision in the case became more important after the Supreme Court’s holding in Employment Division, Department of Human Resources of Oregon v. Smith (1990) that religious exemptions to generally applicable laws are not constitutionally required. Indeed, Justice Scalia in Smith specifically stated that issues of religious freedom are most appropriately within the purview of the political process, a constitutional possibility that Amos allows but Smith explains is not required.

The specific issue in Presiding Bishop was whether a religious organization exemption from Title VII of the Civil Rights Act of 1964 violates the Establishment Clause. The claimant, Mayson, worked at the Deseret Gymnasium in Salt Lake City, Utah, a nonprofit public facility owned and operated by the Church of Jesus Christ of Latter-Day Saints. The church discharged him in 1981 because he failed to qualify for a ‘‘temple recommend,’’ a religious worthiness standard for church members. Following his discharge for religious reasons, he brought a civil rights class action against the church, under Section 703 of Title VII, for discriminating in employment on the basis of religion. The church defended on the basis of Section 702, which exempts religious organizations from the proscription against religious discrimination. At trial Mayson successfully argued that the exemption provided in Section 702 violates the Establishment Clause, because it has the primary effect of advancing religion, contrary to the Lemon test.

Justice White, writing for the Court, reversed the district court’s judgment, holding that the state may accommodate religion by statutory exemptions without violating the Establishment Clause. Despite variant explanations of why statutory exemptions may be constitutionally permissible, no justice dissented from the Court’s essential holding that the Establishment Clause does not prohibit the state from ever accommodating religious freedom through statutory exemptions.

Justice White’s majority opinion held that to avoid conflicting with the Establishment Clause, any religious exemption must pass the three-pronged Lemon test, a test Section 702 clearly passed. Under Lemon’s secular purpose test, the 702 exemption served ‘‘a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.’’ In response to Mayson’s argument that it was difficult to imagine how working in a gym would affect a religious organization’s ‘‘religious activities,’’ the Court concluded that narrowly defining a religious institution’s ‘‘religious activities’’ would unduly burden the religious organization’s ability to define and carry out its religious mission.

With regard to the Lemon issue of secular effect, the Court held that this test is violated only where ‘‘the government itself has advanced religion through its activities and influence.’’ In Presiding Bishop Congress had not advanced religion by the exemption, but simply had permitted the religious institution to advance its own religious purposes. Because Congress’s incidental advancement of the religious institution could not reasonably be attributable to the government, the exemption did not trigger a Lemon violation of an impermissible religious effect. With regard to Lemon’s entanglement prong, the Court held that deferring to the religious institution for the determination of what constituted a ‘‘religious activity’’ diminished any likelihood of entanglement. Indeed, how could any court effectively trump a religious institution’s evaluation of what constitutes ‘‘religious activity’’ without seriously violating the proscription against entanglement?

Justice Brennan, with whom Justice Marshall joined, agreed that the legislature might have a constitutional secular purpose of deferring as a matter of religious freedom to the religious community’s sense of their religious mission. Justice Brennan acknowledged that the ‘‘authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on subscription to particular religious tenets.’’ However, Justice Brennan conceded that ‘‘[w]e are willing to countenance the imposition of such a condition because we deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.’’

Justice O’Connor, in a concurring opinion, suggested that the religious accommodation could also be justified on the basis of her endorsement test alternative to the Lemon analysis. She reasoned that while any religious exemption may conflict with the Lemon proscription against any legislative purpose beneficial to religion, some exemptions might be justifiable as a matter of respect to the free exercise of religion. The question should not be whether the exemption is beneficial to religion but rather whether the accommodation provides ‘‘unjustifiable awards of assistance to religious organizations.’’ To resolve this issue, Justice O’Connor suggested that the test ought to ask ‘‘whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.’’ To ascertain whether the statute conveys a message of endorsement, the relevant issue is how it would be perceived by an objective observer who is acquainted with the text, the legislative history, and the implementation of the statute. As applied to the facts, Justice O’Connor concluded that ‘‘[b]ecause there is a probability that a nonprofit activity of a religious organization will itself be involved in the organization’s mission, in my view the objective observer should perceive the Government action as an accommodation of the exercise of religion rather than as a Government endorsement of religion.’’

Amos has since been cited repeatedly for two linedrawing propositions for statutory exemptions that are beneficial to religious communities: (1) that the state may accommodate religious freedom through the political process, unless (2) that ‘‘accommodation’’ crosses the establishment line by endorsing religion to the objective observer. Without the principle of religious accommodationism announced in Amos, Justice Scalia’s relegation of religious freedom to the political processes in Smith would leave precious little for the free exercise of religion other than the equal protection mandate acknowledged in Church of the Lukumi Bablu Aye v. City of Hialeah that the state not actively target religion.

RICHARD COLLIN MANGRUM

Cases and Statutes Cited

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987)

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)

Lemon v. Kurtzman, 403 U.S. 602 (1971)