Can Religious Organizations Hire According to Their Faith in Illinois?

By Frank DeVito

‍

The Pregnancy Care Center of Rockford v. Bennett and the Future of Faith-Based Employment

There is an old adage that “personnel is policy.” Anyone familiar with the work of faith-based nonprofit organizations realizes the truth of this statement. For any organization to faithfully accomplish its mission, it needs not only mission statements and programs that advance the mission, but leaders and employees who embody that mission in their lives, their beliefs, and their actions. A team that is not united in a shared faith is unable to accomplish the mission of a faith-based nonprofit organization.

Therefore, laws that prevent religious organizations from making employment decisions – including hiring, promoting, and terminating employees – based on religious belief and practice actually prevent religious organizations from operating in a way that can accomplish their mission.  

The Illinois Human Rights Act Leaves No Room for Religious Organizations

The Illinois Human Rights Act was recently amended. The result is a law that does in fact prevent religious organizations from making employment decisions based on their religious beliefs. The state employment law now forbids “discrimination based on . . . reproductive health decisions” such as abortion, contraception, and sterilization.

First, it is worth noting that novel legislative changes like this are taking place in states across the country, expanding the list of protected classes far beyond the original nondiscrimination laws that came out of the civil rights movement. The original scope and purpose of such laws was to protect people who possess certain permanent traits or identities, such as race and ethnicity. The Illinois law and others like it have expanded to include the protection of a class based on personal choices, not immutable traits.

This expanded “nondiscrimination” statute is problematic in itself because it protects and promotes secular choices – such as abortion, contraception, and sterilization. Such choices are at odds with religious beliefs concerning the truth about life and the human person and should not be favored by law. But if such unfortunate laws are going to be enacted, we would at least expect religious exemptions to protect the religious liberty of organizations that cannot hire in accordance with these secular values. If a government is going to legislate a general rule that employers cannot make hiring decisions based on “reproductive health decisions,” it would make sense, at the very least, to respect the hiring practices of faith-based nonprofit organizations that cannot follow such rules without violating their religious beliefs.

Illinois’ Insufficient Religious Exemption

Unfortunately, the Illinois religious exemption to these employment laws is insufficient to protect religious liberty for at least two reasons.  

First, the law does exclude some religious organizations from the definition of employer. But the exclusion is not sufficiently broad. The law states that the term employer “does not include any place of worship, religious corporation, association, educational institution, society, or non-profit nursing institution conducted by and for those who rely upon treatment by prayer through spiritual means in accordance with the tenets of a recognized church or religious denomination . . .” It is not entirely clear from the statute who this exclusion covers. During the Illinois legislature’s debate on this bill, which was quoted in the lawsuit, a state senator  

expressed concern that the Act’s exemption for religious employers would not protect “crisis pregnancy centers” that were “religious” or “Christian” but were not “affiliated with any particular denomination.” Bill sponsor Senator Laura Fine responded that religious or Christian pregnancy centers that were not formally affiliated with a particular denomination would “unfortunately not” qualify for any religious protection.

It was acknowledged that the religious exclusion likely does not include religious organizations that are not affiliated with a particular church or denomination. The lawsuit filed in this case includes an assertion that the Catholic Conference of Illinois pointed this out and asked for broader, clearer religious exclusions; those requests were ignored. This limited exclusion is especially problematic for pro-life pregnancy resource centers – who are often Christian in religious belief but not affiliated with any particular church or denomination.

Second, the exclusion is limited to “the employment of individuals of a particular religion to perform work connected with the carrying on by such place of worship, corporation, association, educational institution, society or non-profit nursing institution of its activities.” (emphasis added). This language, often referred to as a “co-religionist” exemption, is insufficient to allow religious organizations to create a workforce united in faith. The law as written does not allow religious organizations to hire based on certain religious beliefs or practices, but only based on the religion or denomination of the applicant or employee.  

Sometimes an organization does not need to hire only co-religionists – a Catholic organization might be happy to hire non-Catholic Christians if they adhere to certain core Christian beliefs and values. In that case, the organization does not need the ability to hire people of a particular religion, but people who adhere to certain beliefs and practices. The Illinois law does not seem to cover such employment decisions.

At other times, a religious organization may have serious disagreements about beliefs and practices, even with a person who is a member of the same religion. This is the primary problem with the Illinois law. For example, if an organization is affiliated with a specific denomination and has strict pro-life beliefs concerning abortion, the organization may require that applicants and employees be members of any religion, as long as they adhere to pro-life beliefs and practices. What if someone who is a member of that denomination but is in favor of abortion applies for a job? Under the Illinois law, the organization would likely be unable to “discriminate” against the applicant based on her reproductive choices, because she is a member of the same religion as the organization and so the exclusion does not apply.

What Happens Next? What Can Religious Organizations in Illinois Do?

The Catholic Diocese of Springfield and an Illinois-based pro-life pregnancy center, represented by attorneys at Alliance Defending Freedom, have filed a federal lawsuit claiming that the law violates the constitutional rights to expressive association, free exercise of religion, free speech, and equal protection of the law. This will be an important case in determining whether such burdensome “nondiscrimination” statutes are found to violate the constitutional rights of religious organizations. Napa Legal will continue to follow the case and provide updates.

In the meantime, there are limited protections available. The ministerial exception, an important doctrine that comes from the First Amendment, protects the right of religious organizations to determine who their “ministers” will be without government interference. This is a helpful defense against intrusive laws like the Illinois Human Rights Act, but only when the employees in question are considered “ministers.” While “minister” means more than simply an ordained priest or pastor, it does not cover all employees of religious organizations. So it is an incomplete protection at best.

Further, even ministerial exception protections are not ideal, because they force religious organizations to assert the ministerial exception during litigation. Religious organizations should not have to go to court to determine whether they can make employment decisions in accordance with their religious beliefs. That is why defensive protections such as the ministerial exception or a RFRA are insufficient. The ideal is to have laws that clearly allow religious organizations to make employment decisions free from government intrusion. If expansive nondiscrimination laws that include reproductive choices, sexual orientation, gender identity, etc. exist at all, it is crucial to pass clear exemptions or exclusions that prevent these laws from interfering with the free exercise of religion by faith-based nonprofits in their employment decisions.

‍