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In the United States, certain religious schools are legally
permitted to limit or discontinue student enrollment if:
the atmosphere or conduct within a particular home, the
activities of a parent or guardian, or the activities of the
student are counter to, or are in opposition to, the biblical
lifestyle the school teaches. This includes, but is not limited to
contumacious behavior, divisive conduct, and participating in,
supporting, or condoning sexual immorality, homosexual activity or
bi-sexual activity, promoting such practices, or being unable to
support the moral principles of the school. (Lev. 20:13 and Romans
1:27.)
Parents are also asked to acknowledge "the importance of a
family culture based on biblical principles and embrace biblical
family values such as a healthy marriage between one man and one
woman."
These excerpts are from Immanuel Christian School's Parent
Agreement, a document publicly available on the school's
website. According to the New York Times, employees must
also pledge to uphold similar beliefs (https://nyti.ms/2My2AeD). It's the school
where Karen Pence, wife of the Vice President of the United States,
just accepted a teaching assignment (and where she previously
taught for a dozen years). (And for those whom
"contumacious" is not part of your vocabulary, it means
"rebellious or willfully disobedient".)
Karen Pence's return to teaching has sparked discussion
related to LGBTQ rights in places of employment, and we thought it
helpful to take this opportunity to remind us that under certain
circumstances, religious schools are legally permitted to
discriminate based on sexual orientation and gender identity, when
secular employers are not. To put this issue in perspective, of the
over 33,500 private K-12 schools in the United States,
approximately 13% are "conservative Christian" (as
of 2013, according to the U.S. Department of Education).
While not every conservative Christian school will have its
employees sign a pledge disavowing homosexuality and gender
fluidity, there are hundreds of others that might do so.
Religious employers are afforded this right as an exemption to
Title VII of the Civil Rights Act, the federal law that bars
workplace discrimination. In 2012, in Hosanna-Tabor Evangelical
Lutheran Church and School, the U.S. Supreme Court also upheld
the so-called "ministerial exception" to employment
discrimination laws, permitting religious employers to have broad
leeway in determining who is a "minister" and thus who
may be hired or fired based on adherence to the organization's
religious-oriented pledge.
It is worth remembering that in this context, determining
whether an employer is "religious" rests on an assessment
of whether the employer is one that is controlled or associated
with a church, among other factors. For example, the fictitious
"St. Academy," a school founded on Episcopal principles
and that still conducts "chapel" services, but that has
no formal affiliation with the Episcopal Church, would not be
considered a "religious school." At least under federal
law, St. Academy could thus not lawfully screen in (or out) its
employees based on their sexual orientation or gender identity.
The law continues to evolve, with advocacy groups arguing for
more inclusivity and some religious organizations continuing to
assert their rights under the Establishment Clause of the First
Amendment of the United States Constitution. States laws are also
implicated, with approximately 20 states now having "religious
freedom laws" on the books, often in states which also do not
ban discrimination based on gender identity and sexual
orientation.
Karen Pence just wanted to return to teaching art after a hiatus
of a few years. But her return to work at Immanuel Christian School
garnered so much attention because she chose to teach at a school
that reminds us that non-discrimination laws in this country do not
protect all citizens equally. And that such distinctions are
lawful.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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