By: William Schwartz, Vol. 24 Staff Writer

Setting the Stage

Under the Maryland Fair Employment Practices Act (MFEPA), organizations may not discriminate in hiring on the basis of religion and other protected characteristics. The MFEPA contains an exemption for religious organizations. In John Doe v. Catholic Relief Services, the Maryland Supreme Court determined that the exemption only applied when organizations hire employees who directly put into effect the organization’s mission.

General Conferences of Seventh-day Adventists v. Horton, a federal district court case in the District of Maryland, denied a preliminary injunction to the Seventh-Day Adventist leadership which would have enjoined enforcement of the Maryland Fair Employment Practices Act against the organization’s practice of only hiring employees of their religion, even for roles that do not directly further the entity’s core mission. Even though the court denied the preliminary injunction, it refused to dismiss some of the plaintiff’s claims. An appeal of the case to the Fourth Circuit is ongoing. This post will analyze the plaintiffs’ arguments based on the religion clauses.

Church Autonomy

The plaintiffs put forward many claims, and several of them implicate how the Maryland exemption only asks whether an employee furthers an entity’s core mission, not whether the employee’s role is secular or religious. For example, that aspect of the exemption came up when the court assessed whether the Maryland Supreme Court’s interpretation of the MFEPA constituted an inappropriate intrusion on church autonomy. The court reasoned that it did not because there is already a federal exemption from civil rights laws for hiring ministers, and assessing whether an employee serves a ministerial role is likely to involve more considerations of doctrine than assessing whether an employee forwards an entity’s core mission.

Denominational Discrimination: Distinguishing from Catholic Charities

In the lead up to Catholic Charities, Wisconsin enforced one of its statutes based on the conclusion that the Catholic Charities Bureau, Inc. was not “operated primarily for religious purposes,” which resulted in its not being exempt from payment of unemployment compensation taxes from which other religious organizations were exempt. Wisconsin made that determination because Catholic Charities did not engage in proselytizing or limit its services to Catholics. The Supreme Court reasoned that Wisconsin’s application of its statute disfavored certain religions, such as Catholicism, that forbid using charity for proselytizing and provide charitable services without regard to religion. Since Wisconsin disfavored certain religions based on “inherently religious choices,” its actions were judged using strict scrutiny, which it failed.

In Horton, the Maryland District Court reasoned that the facts were different from those in Catholic Charities because the statutory exemption at issue applies to any religious organization, whether its mission is religious or secular. The court thus determined that the act did not draw distinctions based on “inherently religious choices.” Accordingly, the court dismissed this claim.

Excessive Government Entanglement

The plaintiffs also argued that Maryland’s interpretation of the MFEPA violated the Establishment Clause by mandating an inquiry that requires government involvement in all aspects of the plaintiffs’ employment practices. The plaintiffs’ claim primarily derived from cases that applied an outdated test. The court explained that, though the plaintiffs found cases about excessive government entanglement from before the outdated test, none of those cases found an Establishment Clause violation based only on excessive entanglement. The case that received the most analysis was Does 1-11 v. Board of Regents of the University of Colorado. However, the Court pointed out that the act in Does 1-11 required the government to pronounce the official doctrine of different religious sects, whereas the Maryland act does not.

Free Exercise

The plaintiffs argued that the relevant inquiry in determining whether a law treats secular activities more favorably than religious ones was whether a law treats an activity engaged in for secular reasons more favorably than one engaged in for religious reasons. For example, there is an exception to the law for businesses with fewer than fifteen employees. Thus, if an employer finds it to be beneficial to discriminate based on protected characteristics because of having a small number of employees, which is a reason unrelated to religion, that employer is allowed to do so. However, if a religious organization finds it to be beneficial to discriminate in hiring because of the organization’s religious beliefs, it is not free to do so. The court found that the sources that the plaintiffs cited for that argument were insufficient.

Another intriguing part of the issue was the argument that the MFEPA has a system of individualized exemptions. The plaintiffs pointed to a provision of the act that provides an exception if the protected characteristic is a bona fide occupational qualification reasonably necessary to the occupation of the enterprise. Under case law, an exemption is not considered an individualized exemption when it contains an express exception for an objectively defined category of persons. The court pointed out that the cases in which a Free Exercise violation has been found due to individualized exemptions involved subjective discretion of the decisionmaker with very few limiting rules. By contrast, here, there are defined criteria.

Implications

One aspect of the case that stands out is that it appears to be in tension with Catholic Charities because that case provided an exemption to religious organizations while carrying out secular activities, while Horton does not. The District Court’s decision could abate fears that Catholic Charities would lead to workers for religious organizations losing legal protections because it shows that narrow interpretations of statutory exemptions for religious employers can be upheld in federal courts. However, the Fourth Circuit could reverse that decision on appeal.