King's Garden, Inc. v. FCC, 73-1896.

• Decision Date: 06 May 1974
• Docket Number: No. 73-1896.,73-1896.
• Parties: The KING'S GARDEN, INC., Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 51 (1974)

The KING'S GARDEN, INC., Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents

No. 73-1896.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 1974.

Decided May 6, 1974.

Morton L. Berfield, Washington, D. C., with whom Lewis I. Cohen, Washington, D. C., was on the brief, for petitioner.

John E. Ingle, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief, for respondent.

Melvin L. Wulf, New York City, and Joseph Remcho, San Francisco, Cal., filed a brief on behalf of American Civil Liberties Union et al. as amici curiae.

Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI,^* Senior District Judge.

J. SKELLY WRIGHT, Circuit Judge:

Petitioner is a non-profit, interdenominational, religious, and charitable organization. Its activities include a number of ministries whose basic goal is to "share Christ world wide" (Record at p. 15). Petitioner is also the licensee of Radio Stations KBIQ-FM and KGDN in Edmonds, Washington. In these proceedings it seeks review of an order of the Federal Communications Commission which found that it was discriminating on religious grounds in its employment practices and directed it to submit to the Commission a statement of its future hiring practices and policies.¹ Petitioner relies upon a 1972 amendment to Title VII of the 1964 Civil Rights Act which exempts all activities of any "religious corporation, association, educational institution, or society" from the Act's ban on religious discrimination in employment.² (Hereinafter the 1972 exemption.) Before 1972 only the "religious activities" of such organizations had been exempted.³ Petitioner would require the Federal Communications Commission to engraft the 1972 exemption on to the Commission's own rules against sectarian employment practices, promulgated under the "public interest" standard of the Communications Act.⁴ The Commission already exempts employment "connected with the espousal of the licensee's religious views."⁵ Petitioner contends that a sectarian licensee, like itself, must be allowed to discriminate on religious grounds in all of its employment practices.

We affirm the Commission rulings. The 1972 exemption is of very doubtful constitutionality, and Congress has given absolutely no indication that it wished to impose the exemption upon the FCC. Under these circumstances the Commission is fully justified in finding that the exemption does not control its "public interest" mandate under the Communications Act. The limited exemption which the FCC currently recognizes to its own anti-bias rules adequately protects a sectarian licensee's rights under the Communications Act and the First Amendment. Accordingly we uphold the Commission's regulatory scheme as facially sound, while recognizing that its future application will require continuing judicial scrutiny.

I

The sponsors of the 1972 exemption were chiefly concerned to preserve the statutory power of sectarian schools and colleges to discriminate on religious grounds in the hiring of all of their employees.⁶ But the exemption's simple and unqualified terms obviously accomplish far more than this. In covering all of the "activities" of any "religious corporation, association, educational institution, or society," the exemption immunizes virtually every endeavor undertaken by a religious organization. If a religious sect should own and operate a trucking firm, a chain of motels, a race track, a telephone company, a railroad, a fried chicken franchise, or a professional football team, the enterprise could limit employment to members of the sect without infringing the Civil Rights Act.⁷ If owned and operated by a nonreligious organization, the enterprise could not use sectarian criteria in hiring, except where the particular job position carried a "bona fide occupational qualification" of a religious character.⁸

In creating this gross distinction between the rules facing religious and non-religious entrepreneurs, Congress placed itself on collision course with the Establishment Clause. Laws in this country must have a secular purpose and a "primary effect" which neither advances nor inhibits religion. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Walz v. Tax Commission, 397 U.S. 664, 669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

It is now firmly established that a law may be one "respecting an establishment of religion" even though its consequence is not to promote a "state religion," * * * and even though it does not aid one religion more than another but merely benefits all religions alike. * * *

Nyquist, supra, 413 U.S. at 771.

A given law might not establish a state religion but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment * * *.

Lemon v. Kurtzman, supra, 403 U.S. at 612 (emphasis in original). We cannot conceive what secular purpose is served by the unbounded exemption enacted in 1972. As for "primary effect," the exemption invites religious groups, and them alone, to impress a test of faith on job categories, and indeed whole enterprises, having nothing to do with the exercise of religion.

It is true that most of the Establishment Clause cases recently before the Supreme Court have involved state subsidies or tax preferences for religious groups. But in drafting the Clause the Founders were taking equally keen aim at all non-financial "sponsorship" of religious organizations by government. Lemon v. Kurtzman, supra, 403 U.S. at 612; Walz v. Tax Commission, supra, 397 U.S. at 668. And sponsorship is what this exemption accomplishes. It is a sure formula for concentrating and vastly extending the worldly influence of those religious sects having the wealth and inclination to buy up pieces of the secular economy.⁹

It was not, of course, constitutionally required that Congress prohibit religious discrimination in private sector employment. But this having been done, by the Civil Rights Act, the wholesale exemption for religious organizations alone can only be seen as a special preference. Compare Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). The First Amendment demands "neutrality" of treatment between religious and non-religious groups. Nyquist, supra, 413 U.S. at 792-793. As Mr. Justice Harlan once noted:

Neutrality in its application requires an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerry manders. * * *

Walz v. Tax Commission, supra, 397 U. S. at 696 (concurring opinion).

Because the two religion guarantees often seem to tug in opposite directions, "neutrality" is a notoriously difficult concept.

A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. * * * The Court must not ignore the danger that an exemption from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. * * *

Wisconsin v. Yoder, 406 U.S. 205, 220-221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972). See also Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In this matter of exemptions the First Amendment strings a "tight rope" between the two religion guarantees, Walz v. Tax Commission, supra, 397 U.S. at 672, and we must see to it that Congress does not slip off.

From 1964 to 1972 Congress had, in our view, a firm purchase on the tightrope. The exemption then granted by the Civil Rights Act to the religious activities of religious organizations was itself required by the First Amendment. The Free Exercise Clause precludes governmental interference with ecclesiastical hierarchies, church administration, and appointment of clergy. See Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952); McClure v. Salvation Army, 5 Cir., 460 F.2d 553 (1972). In addition, the guarantees of Free Exercise, Free Speech, and Free Press no doubt combine to provide a religious group the right to choose on sectarian grounds those who will advocate, defend, or explain the group's beliefs or way of life, either to its own members or to the world at large. See Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Founding Church of Scientology v. United States, 133 U.S. App.D.C. 229, 409 F.2d 1146, cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L. Ed.2d 427 (1969); Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App.D.C. 146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969). Compare Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Mitchell v. Pilgrim Holiness Church Corp., 7 Cir., 210 F.2d 879, cert. denied, 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136 (1954).

But the 1972 exemption now shelters myriad "activities" which have not the slighest claim to protection under the Free Exercise, Free Speech, or Free Press guarantees....