Religious rights at work

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MARY REICHARD, HOST: It’s Tuesday the 12th of August.

This is WORLD Radio and we’re glad you’ve joined us today! Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

First up on The World and Everything in It: two court wins with big implications for religious liberty and free speech.

One involves a music teacher who refused students’ preferred pronouns. The other: the Christian relief ministry, World Vision, defending its right to hire only those who share its beliefs.

Joining us now is Steve West, an attorney who writes about religious liberty for WORLD.

REICHARD: Good morning, Steve!

STEVE WEST: Good morning, Mary!

REICHARD: We've talked about the Kluge case before. Can you give us a quick refresher?

WEST: Sure. Kluge taught music at Brownsburg Community School in Indiana. The school required teachers to use students’ preferred names and pronouns, even when they didn’t match the student’s sex. Kluge asked for a religious accommodation under Title VII of the Civil Rights Act, which prohibits workplace discrimination.

REICHARD: I understand he tried to find middle ground?

WEST: He sure did. He agreed to use only students’ last names, much like a coach would. That way he could avoid using pronouns altogether.

REICHARD: And how did the school respond to that?

WEST: Well at first, the school allowed it. But a few complaints came in, and the school told him to follow the policy to the letter or face the consequences. The school gave him an ultimatum: comply, resign. or be fired. So Kluge resigned in 2018 after four years at the school.

REICHARD: And he sued the next year?

WEST: Right, right. He lost at the trial court, and appealed to the 7th Circuit Court of Appeals in 2021, which sent the case back after the Supreme Court’s Groff v DeJoy decision. That ruling raised the standard for when employers can deny religious accommodations—they had to prove the requested accommodation would cause a significant hardship.

But the trial court again sided with the school! So Kluge appealed a second time last summer, arguing the school cannot show his requested accommodation caused it “undue hardship.”

REICHARD: So now what happens?

WEST: The appeals court just revived the case and sent it to a jury. It did signal that the accommodation request likely didn’t cause undue hardship. But the jury will decide two things: whether using last names only hurt students emotionally and whether Kluge sincerely holds his beliefs. Courts usually give wide latitude on sincerity, so I think he has a good shot at this.

REICHARD: And that really does matter because courts tend to be less protective of high school teachers’ rights than college professors when it comes to say pronoun use with minors, who are ostensibly more impressionable because they’re younger. Although that can be argued both ways.

Alright well, let’s talk about the World Vision case. Now that has been going on for more than four years.

WEST: Right. World Vision requires all its employees to agree to a statement of faith and follow biblical standards of conduct. Many faith-based groups have similar requirements.

Here, a woman named Aubry McMahon applied in late 2020 for a remote donor services position. But she was married to another woman, pregnant via a sperm donor, and active in LGBTQ causes. A few days after offering her the job, McMahon asked about leave for her baby’s upcoming birth. World Vision withdrew the offer, saying she didn’t comply with its conduct policy that bars sexual relationships outside marriage between one man and one woman.

REICHARD: And so McMahon sued for discrimination too, didn’t she?

WEST: She did. This case has bounced around in the court system, but the latest ruling says that World Vision’s action is protected by the “ministerial exception.” That’s a First Amendment doctrine that gives religious institutions broad autonomy over hiring and firing for positions with vital religious duties.

REICHARD: Okay, well, I hear room for argument in that phrase, “vital religious duties.” I mean, a pastor or theology teachers fits that, and now a customer service rep who interacts directly with donors fits under that. But what about say, accountants or secretaries or janitors?

WEST: The court avoided answering that. It said hiring for non-religious roles would still be subject to nondiscrimination laws. But some lawyers argue there’s a broader religious autonomy principle that protects a faith-based organization’s right to require all employees to share its beliefs.

So here’s lawyer Rachel Morrison who filed a brief on behalf of the Ethics and Public Policy Center:

MORRISON: Religious organizations are able to choose who is going to serve in these key roles at their religious organizations, but also the restraint on courts and the government from being able to come in and tell a religious organization, ‘No, you have to keep this person employed at your organization. This person is the person who has to be your mouthpiece’

REICHARD: So, she’s saying a Christian organization can require all employees to be practicing Christians?

WEST: That’s right. And that makes sense. No faith group should be forced to hire or retain an employee who actively opposes its mission.

REICHARD: But the court did not address that broader autonomy argument or Title VII’s religious exemption?

WEST: Right, and that’s likely because the ministerial exception is more settled law and better understood by the courts.

But Becky Dummermuth of First Liberty Institute filed a brief emphasizing that Title VII (that’s the federal workplace discrimination law) already has a religious exemption. It lets religious organizations hire based on religion, even though Title VII bars discrimination based on race, age, sex, national origin, and after the Supreme Court’s Bostock decision, sexual orientation and gender identity.

DUMMERMUTH: There's … currently a debate … of whether that exemption exempts religious organizations just from hiring on the basis of religion, or if it applies to those other things as well …. I mean, the customer service representative in this case said she was discriminated against on the basis of sexual orientation. World Vision said, ‘No, we made our decision based on our religious beliefs.

REICHARD: So bottom line is the ministerial exception is strong law, but broader claims of religious autonomy or exemption under Title VII are still being contested.

WEST: Right. And we’ll also just have to see if this case gets appealed to the full court of appeals or to the U.S. Supreme Court. But for now it’s a clear win for religious organizations. The broader point is that it’s vital for faith-based groups to maintain their mission integrity. That makes for a healthier, richer cultural life, no matter whether you share their beliefs. That’s really a win for everyone.

REICHARD: Steve West writes about religious liberties for WORLD. You can read his work at wng.org and subscribe to his free weekly newsletter, Liberties. Steve, always good to have you on. Thank you!

WEST: Thank you, Mary.

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