Academic journal article Boston University Law Review

The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy under the U.S. Constitution and the Constitution of South

Academic journal article Boston University Law Review

The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy under the U.S. Constitution and the Constitution of South

Article excerpt


In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,1 the Court unanimously held that a church could violate federal law by retaliating against a former employee who had threatened to sue the church for disability discrimination.2 Federal law was no match for the First Amendment's Free Exercise Clause. This construction represents a fundamental problem with the way in which the U.S. Constitution, laws, and policies approach the conflict between religious autonomy and non-discrimination in employment.

Extant scholarly work that criticizes Hosanna-Tabor argues that the free exercise clause ought not to exempt religious practices or decisions from neutral laws and policies.3 This work points out that this decision is hard to reconcile with cases like Employment Division, Department of Human Resources v. Smith,4 where the Supreme Court held that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."5 Smith articulates a constitutional principle where the Free Exercise Clause does not consider religious practices constitutionally special.6 This Article leaves to one side this more general problem with Hosanna-Tabor, a problem that arises with any claim of religious exemption from an otherwise valid law.7

Instead, this Article draws from the Constitution of the Republic of South Africa to analyze the way in which the U.S. Constitution treats the conflicting claims of a religious employer and its employees. On one hand, Title VII of the Civil Rights Act of 1964 and laws like it make it illegal for certain private employers to discriminate on various grounds including race, sex, and religion.8 These kinds of laws and policies seek, in part, to ensure equality of opportunity in employment. This legislation is important. After all, this conference celebrates the fiftieth anniversary of the Civil Rights Act. On the other hand, these laws do not and simply cannot go far enough in ensuring the right to non-discrimination or equality in employment. This is because private employers, including religious ones, who discriminate in hiring and firing do not violate constitutional rights under the U.S. Constitution. The Equal Protection Clause with its principle of non-discrimination has only vertical effect, applying against state actors.9 The clause does not apply between or among private or non-state employers. This construction means that although these employers can invoke the Free Exercise Clause in the U.S. Constitution to protect their discriminatory employment practices, their employee victims cannot invoke the Equal Protection Clause to thwart such discrimination, only the relevant legislative statute.

The post-apartheid South African Constitution of 1996, in contrast, takes non-discrimination more seriously by applying its constitutional principle of equal protection to private employers, embodying a principle of horizontal effect.10 This construction, as it turns out, affects religious autonomy. Constitutional courts in regimes such as South Africa's must ensure that religious employers do not have categorical freedom to discriminate in hiring and firing, balancing such religious autonomy with the equally important, and sometimes conflicting, principle of non-discrimination in employment. Although legal scholars recognize this conflict or tension in cases like Hosanna-Tabor,11 they have failed to analyze it in light of comparative constitutional law and the distinction between higher and lower law. Doing so, as this Article demonstrates, reveals a hitherto under-theorized weakness in the way the U.S. Constitution treats, as a structural matter, the conflicting claims of religious employers and their current or prospective employees.

This Article proceeds in three parts. Part I frames the argument by treating the conflict between religious autonomy and non-discrimination in employment as a philosophical clash of two equally important rights. …

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