Golden Gate University Law Review


Whitney Ellenby


Church authority to practice gender discrimination in employment decisions represents the collision of principles of religious liberty on one hand, and the need to eradicate invidious discrimination on the other. In order to secure the free exercise of religion, the First Amendment prohibits legislation which interferes with or significantly abridges religious belief or conduct. To the extent that employment decisions represent the extension of religious belief, churches have a strong claim of immunity from judicial review of their decisions. Title VII of the Civil Rights Act of 1964 thus exempts religious entities from civil liability when their discriminatory conduct is religiously motivated. This comment will first demonstrate that compliance with Title VII at the non-ministerial level does not infringe upon the Free Exercise rights of a religious institution absent specific doctrinal authority within the institution compelling discrimination at that level. This comment will next argue that not only does the Establishment Clause permit compliance with Title VII, but allowing religious institutions to avoid Title VII requirements contradicts the non-establishment principle which the clause itself prohibits. Finally, this comment will argue that principles of church autonomy do not constrain judicial resolution of employment disputes under Title VII, because such disputes represent essentially secular rather than ecclesiastical controversies.