Part 2—Reading the Exemption Textually

In this second post summarizing our new article, we explain how textualism offers a compelling interpretive lens for reading the religious employer exemption of Title VII. Besides revealing the liberty-equality tensions discussed in Part 1, a close reading of Section 702’s text vividly reveals the exemption’s meaning and scope.

Here is Section 702’s relevant language:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Notice the opening phrase, “This subchapter shall not apply.” Subchapter denotes Title VII and shall expresses a mandate.

Section 702 covers a “religious corporation, association, educational institution, or society.” Title VII does not define these terms, but each had an established usage when Congress adopted the statute. Our article concludes that the exemption applies to a wide range of religious organizations—from churches and synagogues to religious schools to soup kitchens and other faith-based organizations.

Next, Section 702 applies when a religious organization’s employees “perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” The term activities is unqualified by design. Originally, Title VII limited the exemption to employees who carry out “religious activities,” but that qualification was later struck by a 1972 amendment. Section 702 covers all employees of a religious organization, regardless of whether they are engaged in religious activities.

We come to the decisive phrase. Section 702 applies “with respect to the employment of individuals of a particular religion.” Each word matters.

Employment denotes the entire range of activities comprising the employment relationship, as contemporaneous dictionaries of the period explain.

Religion carries a special definition that applies throughout Title VII. “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief.” The breadth of this definition rebuts any suggestion that Title VII treats religion solely as a matter of religious belief. Both observance and practice denote religious conduct, and their syntactic placement at the beginning of the definition emphasizes them.

Confusion about Section 702’s applicability dissolves when religion is understood to “include[] all aspects of religious observance and practice, as well as belief.” The key interpretive move is to incorporate Title VII’s definition of religion into the phrase “of a particular religion.” Read in this way, Section 702 applies when a religious employer decides whether an “individual” is “of” that employer’s “particular religion”—a determination that encompasses religious observance, practice, and belief.

This does not mean that a religious employer has carte blanche to discriminate. Permission to make decisions “with respect to the employment of individuals of a particular religion” does not imply permission to make employment decisions on non-religious grounds. Where such decisions arise from non-religious considerations, such as personal bias, they fall outside the exemption. Title VII applies.

Textualism thus reveals Section 702 as an oasis of religious liberty. Churches and other religious organizations are free to choose employees who are compatible with the employer’s religious mission—and dismiss those who are not.

Reading Section 702 as a refuge for religious liberty is consistent with our insight that Congress structured Title VII not as a uniformly equality-enhancing provision, but as a complex series of trade-offs reflecting fundamental tensions between liberty and equality. Nor should this be surprising. Religious employers are no less vital to American life than small businesses. Title VII rightly safeguards both.

In our next post, we will explain how our textualist reading solves a long-running circuit split.