Hastings Constitutional Law Quarterly


Steven K. Green


TitleVII of the 1964 Civil Rights Act allows religious institutions to discriminate on the basis of religion in their employment practices, even in those situations where employees are not engaged in religious functions or duties. This exemption, while part of the law since 1972, has become more controversial since the enactment of Charitable Choice legislation that allows religious organizations to contract with the government to administer funded social services. Even though the Supreme Court upheld the exemption against an Establishment Clause challenge in 1987, that decision did not involve government funded programs. An examination of the legislative history behind the exemption and the 1987 Supreme Court decision indicate that the constitutional values underlying the exemption do not apply in situations involving public funding, and that permitting religious organizations to discriminate under Charitable choice violates the Equal Protection and Establishment Clauses.