Our Shield Belongs to the Lord: Religious Employers and a Constitutional Right to Discriminate

For many years, religious organizations have engaged in employment practices of dubious legality under the federal anti-discrimination laws. Religious employers are rarely found liable under anti-discrimination laws-largely because the courts have chosen to construe the statutes narrowly. This approach has enabled courts to avoid the constitutional implications of striking down employment policies that reflect an employer's religious convictions. After the Supreme Court's controversial decision in Employment Division v. Smith, that approach may no longer be practicable.

Smith prohibits exemptions from neutral and generally applicable laws on free exercise grounds. This Article contends that the federal anti-discrimination laws are neutral and generally applicable, thus religious employers may no longer obtain free exercise exemptions after Smith. Moreover, narrow construction of these laws is no longer appropriate because Smith eliminates the constitutional conflict. This Article then discusses the possibility of "hybrid rights," which would require religious employers to prove that the application of anti-discrimination laws offends other constitutional rights, such as speech.

This Article finds that religious employers are unlikely to be able to obtain exemptions based on the hybrid rights approach. This Article concludes that Smith has set the stage for a radical reevaluation of the rights of religious employers to structure their relationships with employees according to religious doctrine. Since existing precedent no longer protects their employment policies, religious institutions may be forced to seek relief in a legislative forum.