The right of religious organizations to hire and retain employees according to religious standards is one of the most crucial and contested issues in the current battle over religious freedom. International Christian charity World Vision is again embroiled in a religious employment controversy, having won a high-profile employment case in 2010. That case involved the religious beliefs of three employees who denied the doctrines of the Trinity and the incarnation of JesusChrist. The current case involves a woman in a same-sex marriage to whom an employment offer was withdrawn on learning of the same-sex marriage. The 2010 case was certainly a threat to religious freedom but also had implications for the LGBT liberation versus religious freedom issue. With the successful (and vital) defense of religious liberty in 2010, the LGBT issue has now come to the fore, especially with the Bostock v. Clayton County (2020) decision from the U.S. Supreme Court, which read sexual orientation and gender identity (SOGI) requirements into Title VII of the Civil Rights Act of 1964.
Title VII prohibits employment discrimination based on religion, but exempts religious organizations, allowing them to hire and retain only employees who share the organization’s faith. Another right that religious organizations have is to hire and retain “ministers” according to religious criteria. This “ministerial exception” to civil rights law has long been understood and honored but has been recognized as a constitutional right by the U.S. Supreme Court since the Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012) decision.
Past Employment Controversies
What happens to World Vision in the area of employment law has obvious implications for other religious charities, since it is so large and well-known. Indeed it has implications for other religious organizations, including houses of worship. World Vision works in over 100 countries and has a total revenue of $3.14 billion. It could be thought of as a “trip wire” organization as well since although founded and continuing as a Christian charity, it has emphasized its humanitarian mission. Religious organizations engaging in the amelioration and improvement of conditions in the wider society may focus on their mission to the extent that their religious nature is attenuated. As noted in the linked Wikipedia article, the organization’s founder maintained that this happened with World Vision. Noteworthy in the current case is that the U.S. organization is resisting what World Vision components in other several countries have accepted. Whether this makes U.S. World Vision complicit in sin could be debated. Certainly, a Christian organization might find it necessary or valuable to cooperate with non-Christian NGOs in humanitarian activities.
In the case decided in 2010, Spencer v. World Vision, Inc., a point at issue was whether the exemption for religious organizations applied only to primary religious organizations (i.e., churches, synagogues, etc.) or more generally to organizations holding themselves out as religious, although focused on some mission in the wider society that a secular organization might be engaged in (e.g., educational or humanitarian). The three terminated employees had signed World Vision’s statement of faith in November 2006, but an internal investigation later determined that they denied the doctrines of the Trinity and the deity of Christ.
The judge of the three-judge panel who cast the deciding vote, Andrew J. Kleinfeld, pointed out(Section III, C, paragraphs 7 through 11) that the exemption in the text of the Civil Rights Act for religious organizations mentions not only primary religious organizations but also religious “educational institution[s] .” Thus, the organization must have a religious commitment but need not focus on worship or religious instruction. As noted in the linked article, Carl H. Esbeck, National Association of Evangelicals Legal Counsel said at the time that the case confirmed “the fundamental right of religious organizations, protected by the Civil Rights Act of 1964, to hire staff who shares their biblical understanding … No one questions the right of secular groups to hire staff who support the organization’s purpose. Religious organizations deserve the same protection.”
The 2010 case involved theological doctrine, but World Vision was involved in a controversy about LGBT employment when on March 24, 2014, it announced its decision to hire persons in same-sex relationships, only to retract it two days later following an outcry from the Evangelical base. This ultimate decision has set employment policy for World Vision regarding sexual morality in the years since.
The Current Lawsuit
However, the Bostock v. Clayton County (2020) decision from the U.S. Supreme Court, extended the anti-discrimination categories of Title VII of the Civil Rights Act of 1964 to sexual orientation and gender identity (SOGI) claims. While Title VII mentions only sex, and the court conceded that Congress in 1964 likely meant only biological sex, it reasoned that not only may one sex be treated no worse than the other, but no individual may be treated differently based on sex. This was supported by its earlier Price Waterhouse v. Hopkins (1989) decision, which said there could not be an adverse judgment against a female employee (in that case, refusal to take her into a business partnership) because she did not behave in a manner traditionally regarded as feminine.
The Bostock decision likely set the stage for the current case, which involves Aubrey McMahon, who was offered a job as a customer service representative with World Vision near Seattle, Washington in January 2021. As noted, the offer was rescinded on learning that she was involved in a same-sex marriage. She then sued in July 2021. Federal district judge James Robart initially ruled in June 2023 for World Vision, holding that the church autonomy doctrine precluded an employment lawsuit. But on appeal from McMahon for reconsideration, changed his decision in August 2023, holding that the position she was offered as customer service representative was not sufficiently religious to merit a religious exemption. While it has been noted that such a reversal is unusual, it is not improper until the case leaves that court’s jurisdiction, and a final decision on November 28, 2023, confirmed his judgment that World Vision had illegally discriminated in violation of Title VII of the federal Civil Rights Act and also the Washington Law Against Discrimination (WLAD). As yet, there has been no action to appeal the decision, but a trial has been set to determine damages.
Religious Employment, Sexual Conduct, and the Ministerial Exception
The contested questions then are whether sexual conduct may be a criterion for employment in a religious organization, and what positions count as “ministerial.” If a position is ministerial, which will be particularly likely if the position involves religious leadership or teaching, then there is complete freedom from the anti-discrimination regime as far as the law is concerned. If not, and the sexual conduct is attached to LGBT identity, is there an exemption for religious organizations? The status/conduct distinction, between a person’s sexual orientation or claimed gender identity, and their conduct, is a common sense one but has generally not been accepted by courts in the struggle between LGBT liberation and religious liberty. It also is worth noting Robart also maintained that World Vision was guilty of illegal marital status discrimination. This implies that a Christian organization could not, for religious reasons, deny employment to single people, or married people, or exclude divorced people or people who were divorced and remarried contrary to religious precepts.
Is there a religiously based sexual policy that can be applied to non-ministerial employees in a religious organization? World magazine cited Judge Robart’s decision that said “if World Vision had an abstinent employees only policy, such a policy would likely be a facially neutral, conduct-based policy … However, World Vision’s policy forbids employing anyone who engages in sexual conduct outside of a heterosexual marriage.” Few charitable religious organizations other than those consisting of nuns will require celibacy. But Title VII specifically allows religious organizations to hire only their adherents (in this case, what World Vision understands to be “Christian”). But violating standards of chastity as indicated in the Bible, as the World Vision understands those commands to be, means that an employee is not an adherent of the same faith as World Vision holds. And as this writer noted several years ago, religious sexual morality is an important part of most world religions, and cannot reasonably be excluded from religious freedom.
The question of sexual conduct is so basic to religious belief and practice that it raises another possible defense, which is the religious beliefs of McMahon or other LGBT-identifying applicants or employees of religious organizations. Presumably, McMahon does not believe that homosexual behavior is sinful. If she does not, then she does not share the same faith as World Vision holds and does not have a right to employment under Title VII. As noted by the Center for Public Justice cited above, Title VII gives religious organizations protection in employment decisions based on religious criteria even for non-ministerial employees, although not the blanket exemption from antidiscrimination law that the ministerial exception gives.
For Judge Robart, however, everything seemed to turn on whether or not the ministerial exception applied to World Vision’s customer service position. Showing a profound misunderstanding of the nature and activities of a religious organization, he declared that “nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.” Obviously, someone who does not share, indeed, in all likelihood in this case, as opposed to a religious organization’s religious beliefs and practices cannot “pray with donors,” or “participate in devotions and chapel.” An atheist would be able to do those things as a matter of practicality, but they are religious activities that cannot be correctly performed by one who does not believe or is even opposed to one or more of the organization’s stated beliefs.
The Outlook and the Need for Perennial Faithfulness
Christianity Today reported a favorable outlook for the case’s final resolution, which held that if the case is appealed to the federal Ninth Circuit Court, World Vision is likely to prevail, as that court has had a good recent record on religious liberty cases. In late August it ordered that the Fellowship of Christian Athletes be allowed back into San Jose public schools, four years after it was excluded. CT also noted a favorable ruling from a federal district court in Texas for a religious employer against having to employ individuals involved in homosexual or gender non-conforming behavior and allowing the maintenance of sex-specific restrooms.
Focus on the Family, on the other hand, did not predict any outcome for the case, but emphasized that “no ministry is safe from the oppressive demands of the LGBT-allied regime.” It noted World Vision’s earlier vacillation in 2014 and admonished that “Christians must remain unflinching in their commitment to God’s good and loving design for humanity, marriage, and the family. Concrete steadfastness in conviction and practice is one of the greatest spiritual and psychological defenses against these growing attacks. Our beliefs about such things are very much under assault from powerful sectors of society.”
The imperative of not compromising with sin should be the key point to remember. To be part of a secular organization, even one with a charitable function that aligns with many Christian precepts to extend charity to people in need or distress, is not wrong, even if the organization includes people involved in sexual sin in their personal lives. Scripture clearly says we cannot withdraw from the world (I Cor. 5:9-13). But to facilitate sin is sinful, as Jesus made clear (Matt. 18:7-9), and any organization holding itself as Christian which tolerates sin in its personnel or activities is sinning (II Cor. 6:14-18). Faithful Christians should not be involved with it but should call it to repentance. It may not be legally possible to function without complying with sinful requirements. In that case, the government has simply made Christian service impossible. This may be regrettable, but faithfulness to God and his revelation in Scripture is what is most important, really for everyone, but certainly for disciples of Christ.