The fiftieth anniversary of the signing by President Lyndon B. Johnson of the 1964 Civil Rights Act, our nation’s premier civil rights law, is being celebrated this week by a conference at the LBJ presidential library in Austin, Texas. Among other important civil rights standards, Title VII of the act set out for the first time federal rules on employment discrimination-prohibiting job discrimination on the bases of race, color, religion, sex, or national origin. Notably, it included a religious exemption: it would not be illegal discrimination for a religious organization to consider religion when making employment decisions about job positions concerned with “religious activities.”

So, at the same time that Congress decided it must create federal rules to prohibit job discrimination, it also decided that it must not make it impossible for religious organizations to assess the religious suitability of candidates for certain positions–those involved with carrying out “religious activities.” No Baptist church would be required to hire a rabbi because the Jewish candidate had more experience or more sparkling educational credentials than Baptist applicants. Catholic hospitals would be free to ignore Hindu or atheist or Calvinist applicants for chaplain. (Note that the exemption does not authorize a religious organization to discriminate on the bases of race, color, sex, or national origin.)

But what about a community-services coordinator in that Baptist church? A grief counselor in the Catholic hospital? The marriage counselor an evangelical agency seeks to hire? Are these religious or secular job positions? Do chaplains engage in “religious activities” because they administer last rites but a grief counselor, who doesn’t perform religious rituals but does talk with patients about their eternal destiny, is not engaged in “religious activities”?

To clarify the law and to avoid requiring religious organizations, government officials, and the courts from having to parse just which activities are “religious” and which are not, and which positions are sufficiently occupied with religion and which ones are not, when Congress revisited the Civil Rights Act in 1972 it modified the religious exemption, turning it into a religious organization exemption. Now the exemption covers every job position in “a religious corporation, association, educational institution, or society”–every person who carries out the “activities” of the organization (notice that there is no “religious” qualification of “activities”).

Sen. Sam Ervin (D-North Carolina), a noted congressional expert on the Constitution, justified this expansion of the exemption from certain positions to every position in a religious organization, by saying that the change was needed “to take the political hands of Caesar off the institutions of God, where they have no place to be.” The religious position exemption was now a religious organization exemption, as it has remained.

Many then, and now, regard such an exemption as too broad. Maybe the Catholic hospital should be able to insist that the grief counselor, and not only the chaplain, be Catholic, but surely a health club should not be able to use religion as a criterion when choosing a janitor! But, in truth, just such a case (a janitor in a Mormon gymnasium) went to the US Supreme Court, which ruled unanimously in 1987 (Corporation of the Presiding Bishop v. Amos) that it was up to the religious organization, and no one else, to decide whether religion was relevant when it hired and fired.

Others have argued that, whatever the legitimate scope of the religious exemption, surely it must automatically go away when the religious organization receives government dollars. Otherwise the government will be supporting religion or, as many critics of the religious hiring freedom put it, the government will be supporting job discrimination (they overlook that, because of the exemption, religious hiring is not illegal discrimination). This argument also has won little sympathy in the courts. It is Title VI of the 1964 Civil Rights Act, not Title VII, that bans religious discrimination when government funds are involved. And a religious organization does not become a part of government when it receives government funds, so the employment non-discrimination rules that apply to government do not automatically apply to private organizations it funds.

Some government programs that award funds to private organizations do ban religious hiring (and apply also other hiring prohibitions) by any organization that receives the money. But even this is not an absolute prohibition: a religious organization can appeal to the Religious Freedom Restoration Act to require the government to allow it to participate in the government program without abandoning its religious hiring practices.

So a robust religious hiring freedom–and more than 50 years old. Why more than 50 years? Before the 1964 Civil Rights Act there was no ban on employment discrimination at all, so no ban on religious hiring either. The Act did not create the freedom: it recognized it. Happy Birthday!

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