Monday, April 15, 2019


By Eric Segall





Cruz also made this demonstrably false statement: "Federal civil rights laws prohibit discrimination based on religious faith. As a recipient of federal funds, Yale is obligated to comply with these protections." Yale as an employer is bound in its employment decisions by federal civil rights laws, but there is no federal law tying federal funds received by educational institutions to a ban on religious discrimination (otherwise private religious schools which prefer students of a particular faith could not receive such funds). According to the Department of Education's own civil rights website: "The civil rights laws enforced by the U.S. Department of Education’s Office for Civil Rights (OCR) protect all students, regardless of religious identity, from discrimination on the basis of race, color, national origin, sex, disability, and age. None of the laws that OCR enforces expressly address religious discrimination.The reality is that, as a matter of federal law, Yale is free to engage in religious discrimination (although it doesn't and shouldn't) outside its hiring, firing, and promotion policies.

All of this would be just another example of the culture wars without any serious legal consequences except for one thing. In his letter, Cruz announced that the "Senate Judiciary Committee's Sub-Committee on the Constitution" was launching "an investigation" into Yale's policies and demanded that Yale retain "all documents, information and electronic media" related to eight long paragraphs of materials relating to numerous Yale policies and events, some only tangentially related to Yale's anti-discrimination policies. This is heavy-handed government intimidation all in the purported service of "religious liberty."

Yale Law School is perfectly free to deny its resources to any employer who refuses to hire gays and lesbians. The fact that some "Christian" employers, in Cruz's words, may believe in "traditional Christian views," or "traditional sexual ethics," does not change that fact. Equally importantly, Yale should not allow employers who won't hire gays and lesbians to benefit from its abundant economic resources. Discrimination based on faith is still discrimination, and no less ugly, and that applies to discrimination against religious groups as well, as long as they don't discriminate on the basis of sexual orientation. If they do, they are excluded not because they are religious, but because of their discriminatory policies.

Of course, the law should not and does not require churches, synagogues, mosques, or temples to hire people outside of their faiths to perform jobs related to faith, and quite possibly that exemption should be extended to all employment decisions made by religious institutions. In fact, the Supreme Court has come close to that position in construing the religion clauses of the First Amendment. But that reality is a far cry from condoning (much less legally sanctioning) organizations other than churches, synagogues, mosques, and temples from discriminating against gays, lesbians or other groups. Those kind of organizations should be bound by religiously neutral anti-discrimination laws regardless of the personal religious views of the people who run those organizations. For example, the hiring practices of the Alliance Defending Freedom, and I have no idea what they are, should be limited by the same laws that apply to all other employers. 

I do feel compelled, however, to observe that Alliance's employees must sign a statement "in which they affirm—among other principles—the Christian sexual ethic. This ethic teaches that “all forms of sexual immorality (including adultery, fornication, homosexual behavior, polygamy, polyandry, bestiality, incest, pornography, and acting upon any disagreement with one’s biological sex) are sinful and offensive to God.”  If the Alliance doesn't hire gays and lesbians on the basis of this policy, Yale should not extend its resources to them.

It is beyond all reason to suggest that a private university must cater to employers that refuse to hire a subset of its students based on race, gender, religion or sexual orientation, which is the only policy that Yale announced. As Dean Gerken explained: "Our policy is rooted in both basic American values and the values of the legal profession. The American Bar Association calls upon law schools to protect their students from discrimination, including discrimination based on sexual orientation. Indeed, a law school cannot be accredited by the ABA without taking steps to prevent discrimination based on sexual orientation. As a result, law schools across the country forbid employers from on-campus recruiting if they do not comply with nondiscrimination policies that mirror Yale’s."

Ted Cruz, the GOP, and many conservatives equate discrimination against gays and lesbians with religious liberty, just as many racists in the 1950's and 1960's justified segregation based on their religious values. As true today as it was then, religious values should not justify discrimination outside the internal practices of churches, synagogues, mosques, and temples. But even if all of that is subject to reasonable debate, Yale, a private institution, is under no legal or moral obligation to allow discriminatory organizations to access its own resources. One would have thought that an alleged libertarian like Ted Cruz would understand that core principle instead of bringing the heavy hand of the federal governmental into Yale's internal affairs.


Michael C. Dorf said...

1) I agree that Sen. Cruz appears to have made a whopper of an error about the scope of federal law. Yale, as a private actor, has no federal legal obligation not to discriminate on the basis of religion outside the employment context. (I am not an expert in Connecticut law; there might be some state obligation; but that wouldn't be a matter for Sen. Cruz, even if so.)

2) I also agree that Yale, as an institution committed to liberal values, ought not to discriminate on the basis of religion, even in areas where it has the legal freedom to do so.

3) However, I also agree that the application of a general anti-discrimination policy to conduct that an actor happens to be engaged in because of a religious motive does not constitute discrimination on the basis of religion. Thus, Cruz's charge is factually as well as legally baseless.

4) Nonetheless, I find cases like this harder than Prof Segall does, because I think that institutions like Yale ought not only avoid discriminating on the basis of religion; in certain circumstances, they ought to grant exemptions from general policies to religiously motivated actors. I explained why in a 1998 article that also happened to be based on events at Yale:

5) To summarize that argument, Yale and other liberal institutions ought to grant exceptions to religiously motivated actors when doing so does not seriously undermine some very important policy objective of the institution. In the case I discussed in the 1998 article, that was possible; the policy required unmarried freshman and sophomores to live on campus; I thought a religious accommodation possible without undermining Yale's core values. Here, I do not think such an accommodation is possible. Put in the analogous legal terms, Yale has a compelling interest in its anti-discrimination policy; it lacked such an interest in its campus housing policy.

Joe said...

"alleged libertarian like Ted Cruz"

He is a conservative. I looked him up when Prof. Eugene Volokh of Volokh Conspiracy endorsed him (notable since people there tended not to single out certain candidates for that honor). And, I recall Cruz saying he was a conservative on his website. His positions are conservative as was his presidential campaign.

I'm not really a fan of various conservative positions, but at least be honest about who you are. Republicans in particular repeatedly label themselves "libertarian" when really they trust governmental power in many ways, just not in a liberal fashion.

Anyway, good analysis and though I share Prof. Dorf's general sentiments, I think on this specific matter the analysis holds. Prof. Segall's view of free exercise of religion at times seems a bit too thin but this is an easier case. Thanks for fitting it in while watching golf.

Eric Segall said...

Thanks Joe. I do agree with Mike that it may be appropriate at times for private institutions to make accommodations for religious groups but we agree this is not one of those times and it is not appropriate any time the accommodation hurts third parties. I think Mike agrees with that but not sure.

Michael C. Dorf said...

Eric: I don't agree that accommodations should never be made when they hurt third parties (although I think that's a legitimate factor). The classic example of an accommodation -- conscientious objection to military service -- imposes potentially deadly costs on third parties: those who end up being drafted to make up for any resulting manpower shortage.

Eric Segall said...

Mike, I think allowing some people to evade being drafted based on religious exemptions but not extending that to secular moral objectors would violate both EP and the EC and the Court has pretty much agreed.

Shag from Brookline said...

Of course, we have an all volunteer military now with no drafting. Trump wishes to oust transgender from the military. Could their usher "impose potentially deadly costs" on other members of the military?

Joe said...
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Joe said...

See, U.S. v. Seeger (applying C.O. rules to those who oppose war on grounds on the same footing as those beliefs based on God / Justice Harlan later arguing it was done for constitutional avoidance reasons) & Gillette v. U.S. (rule requiring objection of all wars held not to be a First Amendment violation).


Side comment, from a career military officer who commanded a fair number of Vietnam-era draftees (later on after they went career, so it's definitely not a good statistical population!):

The draft is, was, and always will be bad policy and a clearly suboptimal way to obtain necessary personnel for the military. Certainly in peacetime, as a CO responsible for enforcing discipline that might impinge on other notions of appropriate behavior, I did not want unwilling draftees in possession of loaded military-grade firearms; "fragging" wasn't just a myth... nor was it confined to actually abusive officers (and there were more than a few).

Further, the "necessity" issue is substantially less valid than it ever was given that the US military now acknowledges that women can be equal members, too. The fundamental problem has always been unwillingness to pay soldiers, sailors, and airmen/women (the Air Force still hasn't figured that one out) enough to attract them during dangerous periods in the first place; this nation has never had a personnel-pool shortage, only an affordability issue.

So I think the comparisons to the draft are at best red herrings... and more probably bycatch.

Greg said...

While it isn't clear to me what the scope of the Yale policy is, if it prevents paying incidental fees to a speaker who works for a religious organization that discriminates legitimately on the basis of religion (say, the leader of the synagogue in Pittsburgh talking about the effects of the recent attack there) I would consider such a ban to be a poor decision on the basis of policy.

The wording by professor Dorf is not clear if it only prevents paying organizations that discriminate against LGBT+ persons (presumably for religious reasons) or if discriminating on the basis of religion alone is enough for the ban to apply.

I say this even as I do not support expanded legal protection for employment discrimination by religious organizations like religiously owned hospital systems.

Marty Lederman said...

Mike: The policy "will also include an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles."

Michael C. Dorf said...

To go back to the question of third-party harm, Eric, your response to my invocation of the draft is problematic. You said that religious exceptions should not be allowed where they impose third-party harms. I said that this is not how it works, giving the draft as a paradigmatic example. You tacitly acknowledge that draft exceptions impose third-party harms, but say that they're available to conscientious objectors citing non-religions reasons of conscience.

1) That's a non sequitur. If A has no pacifist beliefs of any sort, A's likelihood of being drafted to accommodate B's religious pacifism increases. The fact that A's likelihood of being drafted to accommodate C's secular pacifism also increases does not mitigate the third-party harm caused by accommodating B. If anything, accommodating C exacerbates the third-party harm to A.

2) To the extent that you're saying that EP and the EC require non-religious conscience accommodations whenever the government accommodates religious objectors, that's not the law. It's true, as Joe notes, that Justice Harlan suggested such a position. So did Justice Stevens in his Boerne v. Flores concurrence. But the Court as a whole has rejected that position. See Cutter v. Wilkinson (citing Hobbie and Locke v. Davey). So my general point correctly describes the law.

3) And rightly so. Even some very modest accommodations impose at least some third-party harms. If a state employer excuses an Orthodox Jew or a Seventh Day Adventist from the obligation of working on Saturdays, that increases the likelihood that other employees will need to work on Saturdays, even if they'd rather spend Saturdays watching college football.

Eric Segall said...

Mike, I addressed a lot of this here: My view, which is not the Court’s, but should be, is that any exemption not linked to direct religious exercise and practice, must be extended to non-religious objectors of any kind. I know you disagree with that but my point that we should put “the exercise back in free exercise” is I think internally coherent. I should have been clearer that in the draft hypo allowing religious objectors should require allowing any and all objectors, which of course would preclude the religious exemption, which is fine with me. I understand people may object to that but we are just arguing values not coherence. In sum, gov’t should not absent a compelling interest be allowed to place an obstacle between a person and her religious worship and activities, but religious conscience objections to secular law requirements do not in my opinion raise free exercise concerns. In all candor, Marty heard me present these ideas and thought I was nuts, but then again I’m not the one saying selling secular widgets for profits is the exercise of religion.

Joe said...


Okay. In that narrower range of cases, are you saying that there is never any time that a third party might be harmed?

For instance, to take a rather trivial case, places of worship have to basically follow the same property regulations as other buildings. They don't have a special right to avoid traffic and other regulations. OTOH, state and federal law does provide them special rights. If places of worship are not "direct" in this context ...

Sacramental uses of drugs are in place for various religions and the drugs are regulated in part because of fear of third parties. Line drawing to me is unclear (e.g., charity is a pillar of Islam) but if Holy Communion, e.g., is not a direct religious exercise, I'm not sure what is. Under your test, religion specifically can be treated differently here.

Your test narrows the question; but it remains.

Joe said...

edit: I think probably various local ordinances do in certain cases specifically exempt churches from certain traffic laws such as parking or such, but I was thinking as a general matter. And, if churches during mass, e.g., are allowed have more traffic, it can cause certain third party harms to the environment and such.

At some point, the issue is scope. A person, e.g., might think the unemployment cases were wrongly decided (Sherbert v. Verner et. al.). But, what if the state merely gave an exemption to religious exercises. Or, look at civil rights law involving taking a few minutes to pray or such at your workplace. Not to check sports scores. This raises Prof. Dorf's concerns to some extent. And, we are talking core religious exercise.