LeBoon v. Lancaster Jewish Community Center Ass'n

RENDELL, Circuit Judge,

dissenting.

This case presents an issue of statutory interpretation. As the majority points out, Title VII “does not define what constitutes ‘a religious corporation, association, educational institution, or society.’ ” Maj. Op. at 226. Our task, therefore, is to determine what Congress meant when it employed those words and provided that the hiring and firing decisions of such entities should be immune from suits alleging discrimination on the basis of religion. Rather than inquire into Congress’s intent, however, ’the majority refers with broad brush to the approaches taken by other courts, fails to give serious consideration to the relevant legislative history, and embraces a hybrid-scattershot test that examines whether the Lancaster Jewish Community Center (“LJCC”) kept a kosher kitchen, affixed á mezuzah to its doorway or recorded its board meetings using the Hebrew calendar! From the particulars of the LJCC’s operation, the majority concludes that the LJCC is Jewish enough to qualify as a “religious corporation.”

I suggest that the majority’s analysis and ultimate ruling disregard basic canons of statutory interpretation, invite ill-advised judicial forays into the minutiae of private religious practice and, worst of all, sanction discriminatory employment decisions that go far beyond those Congress intended to exempt from Title VII. Therefore, I must respectfully dissent from this aspect of the majority’s opinion.11

I.

We come to this issue tabula rasa. As I noted above, Congress did not include within Title VII a definition of the term “religious corporation.” See Maj. Op. at 230-31. Nor have we yet had occasion to consider the meaning of that phrase. Indeed, a survey of our sister courts of appeals reveals that “[tjhere is little precedent on the meaning of ‘religious corporation’ under [§ 702(a) ].” Fike v. *236United Methodist Children’s Home of Va., Inc., 547 F.Supp. 286, 290 (E.D.Va.1982); see also EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir.1988) (noting that “the case law on this question is not very helpful”). Nevertheless, this lack of authority does not diminish our responsibility to interpret “religious corporation” in a way that “give[s] effect to Congress’s intent.” Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir.2001).

It is axiomatic that, when the meaning of a phrase employed by Congress is undefined and unclear, we must begin our efforts to determine its meaning with a review of the relevant legislative history. “The Supreme Court has repeatedly stated: ‘Where ... the resolution of a question of federal law turns on a statute and the intention of Congress, we first look to the statutory language and then to the legislative history if the statutory language is unclear.’ ” Murphy v. Dalton, 81 F.3d 343, 350 (3d Cir.1996) (quoting Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); see also United States v. Gregg, 226 F.3d 253, 257 (3d Cir.2000) (“Where the statutory language does not express Congress’s intent unequivocally, a court traditionally refers to the legislative history and the atmosphere in which the statute was enacted in an attempt to determine the congressional purpose.”); Dir., Office of Workers’ Comp. Programs v. Sun Ship, Inc., 150 F.3d 288, 291 (3d Cir.1998) (“If the statutory language is ambiguous, we look to legislative history to determine congressional intent.”). The majority fails to take even this most basic step, referring in concluso-ry fashion to the analysis of the legislative history supplied by another court. Maj. Op. at 230-31. A thorough analysis of the legislative history makes clear that Congress intended the phrase “religious corporation” to mean those organizations funded or controlled by a religious group.

II.

The current version of Title VII includes two exemptions pertinent to this case. The first is located in § 702(a) and provides that the anti-discrimination provisions of Title VII “shall not apply ... to a religious corporation, association, educational institution, or society.” The second is located in § 703(e)(2) and provides that

it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

While Title VII’s drafters included the § 702(a) exception in the first draft of H.R. 7152 — “the bill which was the basis of much of. the Civil Rights Act of 1964,” Townley, 859 F.2d at 617—they did not include the § 703(e)(2) exception. Fearing that § 702(a) would not include situations in which an educational institution had aligned itself with a particular faith, but was not fully owned or supported by that faith, Representative Graham Purcell offered an amendment that would create the exception now located in § 703(e)(2). At issue in the floor debate over the Purcell Amendment was whether it was necessary — that is, whether the exemption located under § 702(a) was already sufficient to cover the relationships of concern to Rep. Purcell. Or course, Rep. Purcell be*237lieved that it was not and, in support of his argument, said:

In my study of the bill, I discovered that generally the church-affiliated schools and colleges that are not protected by these two attempts to exempt them.
Almost without exception, the term “religious corporation” would not include church-affiliated schools unless this definition should received the most liberal possible interpretation by the courts. Actually most church-related schools are chartered under the general corporation statutes as nonprofit institutions for the purpose of education.

EEOC Legislative History of Titles VII and XI of the Civil Rights Act of 1961, at 3197 (1968) (emphasis added).12

Later in the debate, Representative Herbert Ray Roberts rose to inquire about the status of a religious orphanage in his district and whether it would be considered exempt under § 702(a). In response, Representative Franklin Delano Roosevelt, Jr. rose and asked whether “the organization ... [was] wholly oumed by [the] religious order.” Id. at 3201 (emphasis added). When Representative Roberts responded that it was, Representative Roosevelt said that it would “unquestionably” be exempt under § 702(a). Id. Representative Roberts rose once again to inquire about the same orphanage and, in response, Representative Emanuel Celler, then Chairman of the Judiciary Committee and instrumental in the drafting and passage of the Civil Rights Act, rose to say that the orphanage would fall under § 702(a) “[i]f it [was] a wholly church supported organization, that is, a religious corporation that comes under section [702(a) ].” Id. at 3204 (emphasis added). In short, “the consensus was that [religious corporations] were not protected [under § 702(a) ] if they were merely ‘affiliated’ with a religious organization.” Townley, 859 F.2d at 617.

Eventually, Congress passed the Purcell Amendment, confirming that it understood the § 703(e)(2) exemption to require a lesser degree of association between an entity and a religious sect than what would be required under § 702(a). This is made all the more obvious by the fact that, since § 702(a) already exempted religious “educational institution[s],” there would have been no need to create an entirely new section if Congress had already intended § 702(a) to encompass relationships in which schools or colleges were not actually owned or controlled by a formal religious organization. Therefore, the distinction between § 702(a) and § 703(e)(2) is that the former requires an extremely close nexus between the entity and the religion while the latter requires a lesser showing. See, e.g., Fike, 547 F.Supp. at 290 n. 3 (describing the § 703(e)(2) exemption as the “more lenient exemption” of the two). Thus, § 703(e)(2) applies only to an entity that is. “in whole or in substantial part, owned, supported, controlled or managed by a particular religion,” while § 702(a) requires a showing that the entity is more than “in substantial part, owned, supported, controlled or managed by a particular religion.” This leaves very little room for an organization financially or structurally independent of a religious order to avail itself of the § 702(a) exemption.

Looking at the LJCC through this lens, there is no doubt that it does not qualify under § 702(a). With respect to governance, the LJCC, during the relevant time *238period, was not run by a synagogue, but by a board independently elected by the Center’s members. As the majority points out, while the rabbis from each of the three local synagogues attended board meetings, they only “played an advisory role,” serving as “honorary, non-voting members” of the Board. Maj. Op. at 227. With respect to financial assistance, there is simply no evidence, nor has the LJCC contended, that any of the local synagogues gave the LJCC any money in any of the years at issue. Instead, the LJCC sustained itself largely by dues and income from the rental of its facilities. The only support it received from an arguably “religious” organization was, as the majority points out, from the Lancaster Jewish Federation. See id. The LJCC does not argue that the Federation was akin to a synagogue. Therefore, far from being more than “in substantial part, owned, supported, controlled or managed by a particular religion,” the LJCC was an independent entity not controlled by any religious sect while it employed Linda Le-Boon and cannot now use § 702(a) to shield itself from LeBoon’s suit.

III.

The majority’s discussion of the legislative history misses the point, as it fails to address the concern of the debaters that is relevant to the question before us — namely, the relationship required between an organization and its religion under §§ 702(a) & 703(e)(2). Instead, the majority notes that the representatives were concerned with “the ability of a secular educational institution teaching secular subjects, but affiliated with or owned by a religious order or organization, to hire preferentially persons of the same faith.” Maj. Op. at 231. While the purpose of the amendment was, undoubtedly, to address the ability of religious schools to hire and fire preferentially, the debate explored the extent to which that had already been achieved by § 702(a), and it is this feature of the debate that sheds light on the meaning of that exemption.

Additionally, the majority writes that “the LJCC is readily distinguishable from the examples of schools and colleges that pepper the transcript” of the legislative history. Maj. Op. at 231. The question of whether the LJCC is “readily distinguishable” from the schools and colleges discussed in the debate is irrelevant because the question is not at issue.13 What is important for our purposes is that the legislative history reveals what Congress understood to be the differences between the relevant exemptions, both of which refer to religious schools and colleges. The discussion of whether § 702(a) was sufficient to cover independent religious schools informs the meaning of “religious corporation” since § 702(a) treated both entities in the same way.

The majority’s terse discussion of the legislative history robs its analysis of the necessary focus on Congress’s intent and consequently infects its ability to craft a coherent and manageable test for determining what constitutes a “religious corporation, association, educational institution, or society.” Rather than adopting an approach that analyzes the closeness of the LJCC’s formal relationship with a particular religious group, the majority announces at the outset of its discussion that the LJCC is entitled to the § 702(a) exemption “because its structure and purpose” are primarily religious. However, it then proceeds to discuss neither structure nor purpose, but, rather, catalogues Jewish attrib*239utes of the LJCC’s daily operations, such as the features of the its programming, its observance of the Sabbath, its pre-school curriculum and the extent to which the Jewish calendar “provided the rhythm” of its activities. Maj. Op. at 229. As if this approach were not already sufficiently nebulous, the majority offers a series of caveats, which dictate that a religious corporation may avail itself of § 702(a) and still “engage in secular activities,” fail to conform to “the strictest tenets” of its faith, declare its intention not to discriminate even while doing just that, and, finally, hire persons who subscribe to other faiths while reserving the right to fire those same employees, solely on the basis of them religion, should it choose to do so at some point in the future. Maj. Op. at 229.

The majority’s test is unwieldy and rooted in neither the text of Title VII nor in the understanding of the Congress that wrote it.

IV.

In sum, Congress understood § 702(a) to cover only those entities that, unlike the LJCC, are controlled by a religious sect. See Townley, 859 F.2d at 617 (“All assumed that only those institutions with extremely close ties to organized religion would be covered [by § 702(a) ]. Churches, and entities similar to churches, were the paradigm.”). However, another serious concern cuts in favor of reading § 702(a) as I suggest, and that is, as even the majority points out, that “ ‘[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.’ ” Maj. Op. at 229 (quoting Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)). Unfortunately, this is exactly the sort of scrutiny that the majority applies to the LJCC, giving us a five-page analysis of the particulars of the Center’s commitment to Judaism — an analysis exemplified by its pronouncement that “the LJCC’s tolerance of non-kosher foods on its premises is balanced by its continued attempt to maintain a kosher kitchen.” Id. By adopting a test that turns on the attributes of the LJCC’s religious practice, the majority mistakenly assumes that we have the competence to, and should, sort through the various activities of a religiously inclined organization and pick out those that are meaningful and those that are not. We have previously declined to do so. See Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.1981) (“Judges are not oracles of theological verity, and the Founders did not intend for them to be declarants of religious orthodoxy.”); see also DeHart v. Horn, 227 F.3d 47, 55-57 (3d Cir.2000) (citing many cases establishing “a consistent and resounding theme” that represents our, and the Supreme Court’s, reluctance to evaluate the particulars of religious practice). We should not do so here. It is neither practical nor desirable and, ultimately, unnecessary given Congress’s intent.

V.

For these reasons, I would reverse the District Court’s order and remand for further proceedings on LeBoon’s discrimination claim.

. I do not disagree with the majority’s rulings with respect to parts I, II.A, II.C and II.D.

. Notably, the LJCC has represented itself as an “educational organization" before the Internal Revenue Service, see Appx. at 1058, and as an entity created "[t]o provide educational, recreational, social, cultural, and human services to all members of the community,” before the Commonwealth of Pennsylvania Department of State, see id. at 1080.

. The question would have been relevant had the LJCC sought protection under the § 703(e)(2) exemption, which it did not.