Part 1—Civil Rights Law and the Tensions between Liberty and Equality

Last month, the BYU Law Review published our article entitled Religious Employment and the Tensions between Liberty and Equality. We appreciate this opportunity to offer a five-part series summarizing the article’s key points.

Religious employment is a vital aspect of religious freedom. A church needs employees who are fully committed to the church’s religious mission and who live by its religious standards. Religious fidelity is indispensable to a religious organization’s success. Competence alone will not do.

Title VII of the Civil Rights Act of 1964 contains an exemption for religious employers. Sometimes called Section 702, it provides that Title VII does not apply to a religious employer “with respect to the employment of individuals of a particular religion.” Deciding when it applies has divided federal circuits and other courts.

We begin with textualism—the theory of legal interpretation that, as Justice Scalia and Bryan Garner explained, “begins and ends with what the text says and fairly implies.” (The article also examines legislative history, for those who are interested.) Reading Section 702 through a textualist lens reveals that the exemption authorizes religious employers to select employees for religious reasons free from the demands of Title VII, so long as they have a religious reason for doing so.

Some resist interpreting Section 702 as a liberty-enhancing provision out of a misreading of Title VII. They view Title VII as an uncompromising guarantee of employment equality. But close attention to the statute’s text and structure reveals something more nuanced—and surprising. Title VII is not the uniformly equality-enhancing statute that many assume.

To understand why a statute that guarantees equality also contains a significant protection for religious liberty, we turn to classical liberal philosophy. It holds that greater liberty generally means less equality and vice versa. This first post explains how the tension between liberty and equality confirms the textualist reading of Section 702.

Tocqueville warned in Democracy in America that democratic peoples would sacrifice liberty to satisfy their “ardent, insatiable, eternal, invincible passion for equality.” Other classical liberals, such as Hayek in Law, Legislation, and Liberty, noted the same tensions.

Progressive theorists disagree. John Rawls claimed to reconcile equality with personal liberty in his A Theory of Justice: “The distribution of wealth and income, and the hierarchies of authority, must be consistent with both the liberties of equal citizenship and equality of opportunity.” Conceiving of liberty and equality in these terms suggests that equality may be expanded without unduly diminishing liberty.

We agree with Tocqueville: liberty and equality are generally in tension. That tension is evident in the text of Title VII. Making equal employment opportunity the law of the land rightly expanded the ability of vulnerable minorities and women to achieve economic independence. Yet read for what it says, Title VII is not merely a broad rule of workplace equality.

To be sure, the dominating rule is Title VII’s prohibition on discrimination because of race, color, national origin, religion, and sex. (The Supreme Court amended that list by holding that sex includes sexual orientation and gender identity in Bostock v. Clayton County.) But Title VII contains multiple exclusions and exemptions.

Consider small businesses. Title VII does not apply to employers with fewer than fifteen employees. That’s a massive carve-out. U.S. Census Bureau figures report that 18 million Americans—about 13% of all workers—are employed by businesses that fall below Title VII’s numerical threshold.

Title VII likewise contains an exception when “religion, sex, or national origin is a bona fide occupational qualification.” Hollywood and Broadway use this exception when casting an actor whose gender or ethnicity is important to the role. This BFOQ exception is narrow, but where it applies, an employer may discriminate on prohibited grounds except for race.

Other exemptions further limit Title VII’s reach. The statute does not cover “a bona fide private membership club.” Workplace seniority and merit systems also get special treatment. An employer whose work involves national security may deny employment to a person who lacks the requisite security clearance. And employers may refuse to hire communists.

These exclusions and exemptions refute the misconception that Title VII is purely an equality-enhancing provision. Yes, Congress adopted the statute to eradicate employment discrimination based on certain employee traits. But Congress also preserved significant areas of employer autonomy—even when that means accepting a degree of inequality.

Confronting Title VII as written underscores its complexity. As we note in our article, “Far from establishing an unqualified charter of workplace equality, Title VII reconciles a broad guarantee of equality with significant areas of employer autonomy.” Reading the statute’s plain text reveals that Congress allowed for the liberty of employers in certain circumstances while advancing employment equality generally.

The next post will set out our rigorously textualist reading of Title VII’s religious employer exemption.