Spencer v. World Vision, Inc.

dissenting:

World Vision Inc. maintains that it is a “religious corporation, association, educational institution, or society” and so not covered by Title VII’s prohibition against hiring or discharging employees on the basis of religion. See 42 U.S.C. § 2000e-1(a). If World Vision is right, then it may refuse to hire, and may fire, on the basis of their religious beliefs individuals — like the plaintiffs here^ — whose jobs have no religious element at all.

Judges O’Scannlain and Kleinfeld agree that World Vision qualifies for the exemption and so can insist that all of its employees share the organization’s belief that “Jesus Christ is God and a member of the Trinity.” My colleagues arrive at this conclusion by fashioning a brand new test for applying the Title VII religious organization exemption.1 Under that newly minted standard, any entity can claim the exemption “if that entity is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” Per Curiam Opinion.

*749This test would allow a broad range of organizations to refuse to hire and to fire any employee on the basis of religious belief, including organizations that lack any ties to organized religion and perform daily operations entirely secular in nature. As a result, the majority’s approach would transform what has always been a narrow exemption from the general prohibition on religious discrimination into an exceedingly broad one, with no obvious stopping point. I explain below that this expansive standard for invoking the exemption contravenes our precedent and the clear language of the statute while fostering the very problem of religious-based inquiries it seeks to cure.

I.

The majority’s characterization of defendant World Vision’s focus and activities is fully accurate. I pause here to emphasize several facts that become significant in the discussion that follows.

According to its website, World Vision is “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” Four of World Vision’s six core “ministries” are described in purely secular terms: caring for children by providing clean water, health care, food and clothing; building self-reliance through technological innovation and training; emergency relief; and educating Americans about global poverty. Although World Vision lists “evangelism” as a ministry, it “never proselytize[s].” Instead, it “integrates Christian activities” into its outreach work by working with local churches and “arrang[ing] for interested children to attend events such as Bible camps or clubs so they can learn more about the Christian faith.” World Vision does not require or urge aid recipients to participate in religious worship or instruction, although it does “offer those opportunities.”

World Vision also does not ordain ministers, and it is not affiliated with any particular church. Partnering with a wide variety of churches, including Methodist, Catholic, Episcopal, Lutheran, and independent sects, World Vision does not require representatives of those churches involved in World Vision activities to sign any document affirming their commitment to the Apostles’ Creed or World Vision’s Statement of Faith.

Finally, the plaintiffs performed completely secular job duties. Spencer worked in a department that provided facilities upkeep; Youngberg worked as a purchaser, warehouse technician, and scheduler; and Hulse was an administrative assistant. World Vision fired them because, although they continued to be practicing Christians, they no longer believed in the Trinity, the idea that “the father, son and holy ghost are one and the same.”

II.

Two earlier Ninth Circuit cases provide guidance — or should, the majority’s determination to push them aside notwithstanding — in assessing whether World Vision falls within the exemption’s intended scope.

The first, EEOC v. Townley Engineering & Manufacturing Company, 859 F.2d 610 (9th Cir.1988) considered whether the exemption covered a for-profit company founded as a “Christian, faith-operated business” and producing mining equipment. Id. at 611-12 (quotations omitted). Addressing that question, we began from the proposition that “Congress’s conception of the scope of [the exemption] was not a broad one. All assumed that only those institutions with extremely close ties *750to organized religion would be covered. Churches, and entities similar to churches, were the paradigm.” Id. at 618. To determine whether an organization falls within the exemption, we said, “[a]ll significant religious and secular characteristics must be weighed to determine whether the corporation’s purpose and character are primarily religious.” Id.

In Townley, the employer enclosed Gospel tracts in outgoing mail; printed Bible verses on invoices and purchase orders; donated money to churches and other religious entities; and conducted weekly prayer meetings for employees. Nonetheless, Townley was held primarily secular and so not a “religious corporation,” because it was for-profit and unaffiliated with any church, its articles of incorporation included no religious purpose, and it produced a secular product. Id. at 619.

The second seminal Title VII religious exemption case in this court, EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir.1993), involved a group of related schools founded pursuant to a bequest that required that all teachers be Protestants. To determine whether the Schools came within the exemption, we considered their purpose, faculty, student body, student activities and curriculum, as well as the fact that the Schools were unaffiliated with any church, and concluded that “the religious characteristics of the Schools consist of minimal, largely comparative religious studies, scheduled prayers and services, quotations of Bible verses ... and the employment of nominally Protestant teachers.” Id. at 463. The Schools, in sum, were “an essentially secular institution operating within an historical tradition that includes Protestantism” and, as such, ineligible for the exemption. Id. at 463-64.

Taken together, Townley and Kamehameha Schools direct us to consider whether an organization may avail itself of § 2000e-1’s exemption by applying two broad, interwoven principles. First, “[a]ll significant religious and secular characteristics must be weighed to determine whether the corporation’s purpose and character are primarily religious.” Townley, 859 F.2d at 618. Second, “[w]e construe the statutory exemption[ ] narrowly,” with the understanding that “only those institutions with extremely close ties to organized religion [are] covered.” Kamehameha Sch., 990 F.2d at 460. The majority’s test departs from both principles, as I explain below.

III.

The first principle established by Townley and Kamehameha Schools is one of methodology — that an understanding of whether an organization is “primarily religious” requires an assessment of observable religious and secular aspects of an organization’s purposes and activities— that is, a fact-based, functional inquiry. Permitting self-definition by purportedly religious organizations, as my colleagues would allow, cannot be reconciled with this principle.

The majority acknowledges that Kamehameha Schools and Townley focused on the observable religious or secular nature of the organizations’ attributes, but justifies departing from this approach by asserting that those cases “contain[ ] no indication that the religious or secular nature of any particular activity or purpose was in dispute.” See Concurrence of O’Scannlain, J. at 733. This portrayal of our precedents is wrong. Close inspection of Kamehameha Schools, in particular, reveals that the characterization of particular attributes as religious or secular was, in fact, hotly contested by the parties.

*751Kamehameha, Schools held the Schools’ purpose secular despite the Schools’ insistence that “the purpose of the Schools is primarily religious.” Brief of Defendant-Appellee at 25, Kamehameha Sch., 990 F.2d 458 (No. 91-16586). The Schools argued that they “ha[d] steadfastly remained primarily religious in purpose ... for over a century.... it is [our] purpose not only to provide education, but to provide such education in a Protestant Christian atmosphere which pervades every aspect of campus life.” Id. at 20. As evidence of its religious purpose, the Schools cited the existence of the Bishop Memorial Church as “an integral part” of school life; daily prayer in classrooms; the presence of an ordained minister as chaplain; and a religious coursework requirement. Id. at 21. Our independent review of documents created and distributed by the Schools, however, led us to the conclusion that the Schools’ “mission” was “to help native Hawaiians ‘participate in contemporary society for a rewarding and productive life’ by providing a solid education ... and the moral guidance necessary to help students ‘define a system of values.’ ” Kamehameha Sch., 990 F.2d at 465 (brackets omitted). We rejected the Schools’ claim that their central purpose was religious, observing that “the purpose and emphasis of the Schools have shifted over the years from providing religious instruction to equipping students with ethical principles that will enable them to make their own moral judgments.” Id. at 462.

The religious nature of the Schools’ curriculum was also in dispute. The Schools pointed to their curriculum as evidence that the Schools were “primarily religious,” emphasizing that Bible stories were taught by “Christian education teachers” starting in kindergarten and by an ordained minister starting in seventh grade, and that completion of the “Ekalesia” religious instruction program was a graduation requirement. See Brief of Defendant-Appellee at 26, 29. We found that despite these requirements, secular instruction outweighed the religious elements of the curriculum, noting that the Schools “offer a complete array of courses in math, science, English, languages, and social studies, all of which are taught from a secular perspective. No effort is made to instruct students in Protestant doctrine.” Kamehameha Sch., 990 F.2d at 463. Characterizing the curriculum as containing “minimal, largely comparative religious studies” and noting that “[references to Bible verses, comparative religious education, and even prayers and services are common at private schools and cannot suffice to exempt such schools from § 2000e-1,” we rejected the Schools’ contention that they were a religious organization for purposes of Title VII and so allowed to hire and fire employees based on religious belief.2 Id.

The majority’s test cannot be squared with our precedent on the grounds that in Kamehameha Schools the “characterizations [of the organizations’ attributes] were not our own.” See Concurrence of O’Scannlain, J. at 733. The Schools had not conceded that their purpose had shifted from religious to secular, nor that the religious components of the curriculum were “minimal.” Rather, those conclusions were derived from our careful analysis of observable religious and secular attributes. Our precedent requires the same method here.

*752The majority correctly observes that “our case law does not compel us to march down a checklist of considerations” in assessing whether an organization is “primarily religious,” nor does it compel “rigid adherence” to the factors considered by Townley or Kamehameha Schools. See Concurrence of O’Scannlain, J. at 730. The relevant characteristics will depend on the type of institution invoking the exemption.3 The variable nature of the inquiry, however, does not relieve us of our obligation to assess “[a]ll significant religious and secular characteristics.” Kamehameha Sch., 990 F.2d at 460. As it is clear that Kamehameha Schools, which relied upon Townley, cannot be distinguished on the grounds that the characterization of particular attributes as secular or religious was undisputed, we are compelled to follow the mode of analysis prescribed in our two precedential cases. See, e.g., United States v. Hernandez-Castro, 473 F.3d 1004, 1008 (9th Cir.2007).

IV.

The second principle firmly established by Townley and Kamehameha Schools is a substantive one — that Congress intended the § 2000e-1(a) exemption to apply narrowly, covering “only those institutions with extremely close ties to organized religion ... Churches, and entities similar to churches, were the paradigm.” Kamehameha Sch., 990 F.2d at 460 (quoting Townley, 859 F.2d at 618).4 This narrow reading of the exemption to cover entities that, like churches, exist for the purpose of prayer and religious instruction is required by the plain meaning of the statutory terms and the structure of the statute. When “the statutory language is clear and consistent with the statutory scheme at issue, the plain language of the statute is conclusive and the judicial inquiry is at an end.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir.2007).

The majority’s test would permit a broad variety of religiously influenced organizations to employ only individuals with prescribed religious beliefs in jobs with no religious function. Whether or not that would be a superior rule, it is one impossible to reconcile with the clear text of the statute.

1.

Title VII’s religious organization exemption provides:

This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with re*753spect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

42 U.S.C. § 2000e-1(a). As I develop below, at common law and in contemporary common legal usage, “religious society” meant a community organized for worship; “religious corporation” referred to a religious society that incorporated to achieve a form that was legally cognizable under civil law. See, e.g., Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (using “church,” “religious society,” and “religious association” interchangeably). “Where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” Evans v. United States, 504 U.S. 255, 259, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (quotations and brackets omitted). We must therefore assume that Congress used the terms “religious corporation, association ... or society” as they were commonly understood: to describe a church or other group organized for worship, religious study, or the dissemination of religious doctrine.5

When Congress enacted the religious organization exemption, the term “religious society” had long been used in legal parlance to apply to organizations formed for the central purpose of communal worship and religious study. See, e.g., Mordecai F. Ham Evangelistic Ass’n v. Matthews, 300 Ky. 402, 189 S.W.2d 524, 527 (1945) (“The term ‘religious society’ is an old one ... it has had a well-understood meaning, being used interchangeably with ‘church’ or some group organized and maintained for the support of public worship.”); U.S. Nat’l Bank v. Poor Hand Maids of Jesus Christ, 148 Wis. 613, 135 N.W. 121, 122 (1912) (“The term ‘religious society’ ... has often been construed by courts.... It is a body of persons who usually meet in some stated place for worship of God and religious instruction.”); State v. Stuth, 11 Wash. 423, 39 P. 665, 666 (1895) (“The words ‘religious society’ ... have their ordinary meaning, and would include all religious societies or congregations met for public worship.”). This usage has remained unchanged since enactment of Title VII’s religious exemption. See, e.g., Parshall Christian Order v. Bd. of Review, Marion County, 315 N.W.2d 798, 802 (Iowa 1982) (“A ‘religious society’ has been defined to be ‘a voluntary association of individuals ... united for the purpose of having a common place of worship and to provide a proper teacher to instruct them in religious doctrines and duties.’ ” (citation omitted)).

While “religious association” does not appear to have a distinct meaning, the Supreme Court has deployed the term as a synonym for “church.” See, e.g., Kedroff v. St. Nicholas Cathedral of Russian Or*754thodox Church, 344 U.S. 94, 114, 73 S.Ct. 143, 97 L.Ed. 120 (1952) (noting the “[unquestioned] right to organize voluntary religious associations to assist in the expression and dissemination of ... religious doctrine” (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29, 20 L.Ed. 666 (1871))). Canons of statutory interpretation also suggest that “association” must be interpreted to have a similar meaning as “society” in this context. See United States v. Alvarez-Gutierrez, 394 F.3d 1241, 1253 (9th Cir.2005) (“The traditional canon of construction, noscitur a sociis, dictates that words grouped in a list should be given related meaning.” (quotation omitted)).6

As with the terms “religious society” and “religious association,” Congress must be presumed to have been aware of the established legal meaning of the term “religious corporation.” That term has consistently referred to the legally-recognized form created by a religious society or association so that it could assert property and other rights under civil law. In colonial America, religious societies were able to incorporate only upon receiving special charters from the Crown or colonial legislature, rarely granted to any religious societies other than the Church of England. R.H. Tyler, The Law of Religious Societies 133, 135 (1866).7 Incorporation thus originally symbolized state sponsorship of religion. After the American Revolution, consequently, religious societies were largely unincorporated. See Turpin v. Locket, 10 Va. 113, 6 Call 113 (1804) (holding that, because the Church of England’s privileged legal status had been eliminated by the revolution, “[t]hat church, formerly paramount and triumphant, has now taken its just and equal station with other religious societies,” and therefore its religious successor, the Episcopalian Church, had no claim to its former holdings).

Without a corporate existence it was impossible for churches to hold property. The Virginia courts, for example, refused to let the Catholic Church of Richmond take possession of property bequeathed it by a donor because the Church lacked a fixed identity under the law. See Gallego’s Ex’rs v. Att’y Gen., 30 Va. 450 (1832) (“[A]s the society or congregation is not incorporated ... who are to be regarded as the beneficiaries?”). Churches therefore sought corporate status, to assure “the institutional identity that was provided by internal governance and the assurance of immortality.” Liam Séamus O’Melinn, Neither Contract nor Concession: The Public Personality of the Corporation, 74 Geo. Wash. L. Rev. 201, 223 (2006); see, e.g., Kedroff 344 U.S. at 128, 73 S.Ct. 143 (Jackson, J., dissenting) (“[T]his denomination wanted the advantages of a corporate charter for its Cathedral, to obtain immunity from personal liability or other benefits.”); Baltimore & P.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 330, 2 S.Ct. 719, 27 L.Ed. 739 (1883) (“[T]he Fifth Baptist Chureh[ ] was incorporated that it might hold and use an edifice, erected by it, as a place of public worship for its members ... ”). States responded by passing statutes permitting religious societies to incorporate. See, e.g., McKinney’s Religious Corporations § 4 (permitting “property of *755an unincorporated church, or ... religious society, body, association or congregation” to become the property of the corporation upon'incorporation); 13 Maine Rev. Stat. § 2861 (establishing a procedure for any group “desirous of becoming an incorporated parish or religious society”); N.H.Rev.Stat. § 306:4 (“[T]rustees, deacons, church wardens or other similar officers of churches or religious societies ... shall be deemed bodies corporate ... ”); Mass. Gen. Laws 67 § 23 (establishing a process by which those “who desire to form a religious society ... shall become a corporation”); Conn. Gen.Stat. § 33-264d (“Any religious society may become a religious corporation....”).

The term “religious corporation” thus had a clear and universal meaning at the time Congress enacted § 2000e-1(a) of Title VII: It referred to the legally cognizable form of a religious society, which in turn was commonly understood to mean a church or similar entity organized for the purpose of worship. See Black’s Law Dictionary 368 (8th ed.2004) (defining “religious corporation” as “a corporation created to carry out some ecclesiastical or religious purpose”). Entities consisting of coreligionists but organized around secular purposes or activities were outside the term’s scope. See State v. Hutterische Bruder Gemeinde, 46 S.D. 189, 191 N.W. 635, 643 (1922) (holding that an organization whose principal purpose was farming and only “lastly and secondarily” religion was not a religious corporation); Franta v. Bohemian Roman Catholic Cent. Union, 164 Mo. 304, 63 S.W. 1100, 1102 (1901) (holding that a Catholic fraternal beneficiary society was “in no sense a religious corporation. It is not formed to teach or propagate the religious faith, but to cultivate the spirit of fraternity among its members.... ”).

In short, in delineating the statutory exemption Congress chose words that, through a long common law and statutory history, signified organizations that existed for the purpose of worship and religious learning. Given that established understanding, the plain meaning of the language used conforms with — indeed, dictates — the narrow scope for the exemption recognized in Townley and Kamehameha Schools.8 Neither Judge O’Scannlain nor Judge Kleinfeld explains why this Court should depart from the traditional presumption that Congress intended these terms of art to retain their traditional common law and statutory meanings.

2.

A structural analysis of Title VII as a whole supports this conclusion. Section 2000e-l(a) is one of three exceptions carved out of Title VII for the purpose of accommodating religious freedom. There is, in addition, a judicially-created “ministerial” exception designed to address this concern. When viewed in the context of the other exceptions, it becomes clear that the exemption at issue here serves a purpose unique to churches and other pervasively religious societies and is meant to be confined to such associations.

*756First, courts have carved out a broad “ministerial exception” to Title VII “in order to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government.” Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir.2004) (quoting Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 945 (9th Cir.1999)). The ministerial exception doctrine holds that the federal constitution’s Establishment and Free Exercise Clauses require courts to “defer without further inquiry” to “decision-making about who shall be a minister of the Church,” even if the decision is based on a classification, such as race or sex, otherwise proscribed by Title VII. Id. at 958. The doctrine thus forbids judicial review of the doctrinal reasons asserted for discriminating on a proscribed basis with regard to ministers. See id. at 961.

Moreover, any organization may “hire and employ” on the basis of religion where religion is a “bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1); see Kamehameha Sch., 990 F.2d at 465.9 Secular organizations may rely on the BFOQ exception. See Kern v. Dynalectron Corp., 577 F.Supp. 1196 (N.D.Tex.1983), aff'd, 746 F.2d 810 (5th Cir.1984) (holding that a helicopter company was entitled to require that all pilots flying into Mecca convert to Islam because under Saudi Arabian law non-Muslims were forbidden to enter Mecca on penalty of death). If World Vision does not qualify for the 2000e-1 exemption, it may well have a strong argument that belief in World Vision’s Statement of Faith or the Apostles’ Creed is a BFOQ for employees directly involved in carrying out World Vision’s religiously-motivated humanitarian mission by offering humanitarian outreach and, where appropriate, Christian ministry to poor families. See Pime v. Loyola Univ. of Chi., 803 F.2d 351 (7th Cir.1986) (holding that membership in the Jesuit order was a BFOQ for filling tenure-track professorships because maintaining an adequate Jesuit presence was important to the successful operation of a Jesuit-affiliated university).

The overall statutory scheme of Title VII makes clear that the religion-based exceptions are narrowly tailored to achieve distinct purposes. As any organization may, under the BFOQ provision, base particular hiring decisions on religious affiliation to the extent required by operational necessity, § 2000e-l(a) serves the distinct purpose of permitting organizations exclusively devoted to propagating religion to conduct all their activities within a community composed wholly of coreligionists. For such entities, “[determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is [] a means by which a religious community defines itself.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J., concurring). The language and *757overall structure of Title VII indicate that Congress believed only entities like churches, whose religious character is so pervasive that it defines their entire organizational mission and daily activities, stand in need of this organization-wide exemption.

Identifying the interaction of these exemptions responds to Judge Kleinfeld’s concern that a Protestant religious association might be required to hire atheists, Jews, or Catholics to perform Protestant missionary work. Concurrence of Kleinfeld, J., at 743-44. First, such a group may fit within § 2000e-1(a) if organized for the dissemination of religious doctrine. Second, an association falling outside the narrow confines of § 2000e-I(a) might still argue that religious affiliation is a BFOQ for employees performing missionary work.

Townley’s statement, reaffirmed in Kamehameha Schools, that the exemption is limited to churches and similar entities is thus entirely consistent with the commonly understood meaning of the terms in the provision and the structure of the statute as a whole. To stretch the exemption, as my colleagues now do, to encompass entities organized around secular activities conducted with an assertedly religious motivation surely violates Congress’s intent.

V.

My colleagues’ approach is not only at odds with our precedent and the plain meaning of the statute. The attempt to escape from our precedent is driven by the misguided thesis that any inquiry into the activities of an avowedly religious organization is constitutionally suspect. Although the majority would subvert our precedent and the plain meaning of the statute in the name of a nonexistent constitutional problem, these new tests fail to resolve the constitutional issue that troubles my colleagues.

1.

Under the majority’s newly minted standard, we must accept without inquiry the parties’ own characterizations of particular institutional attributes as either religious or secular, as any judicial analysis of a purportedly religious organization’s activities or purpose is “constitutionally troublesome.” See Concurrence of O’Scannlain, J., at 730. The majority invokes Amos for this proposition, but Amos is not controlling in this case. All the parties in Amos agreed that the employer, a nonprofit gymnasium wholly owned by the Mormon Church, was entitled to the religious organization exemption. Amos, 483 U.S. at 331 n. 3, 107 S.Ct. 2862. The issue of how to assess which organizations are within the religious exemption was thus not before the Court.10

Instead, the question in Amos was whether Congress’s expansion of the exemption to permit religious organizations to discriminate with respect to non-religious jobs unconstitutionally advanced religion in violation of the Establishment Clause. Id. at 330, 107 S.Ct. 2862. So, when the Supreme Court in Amos stated that “it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its *758activities a secular court will consider religious,” id. at 336, 107 S.Ct. 2862, it was not demarcating the constitutional boundaries of the judicial inquiry into whether an institution qualified as religious. Moreover, the opinion for the Court expressly assumed that the prior version of the exemption, which previously applied only to the religious activities of religious employers, id. at 333 n. 9, 107 S.Ct. 2862, did not raise any constitutional free exercise issue. Id. at 336, 107 S.Ct. 2862. Amos held only that the broader, amended version of the exemption satisfied the test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and so was not an establishment of religion. Noting that lessening government interference with religious organizations’ ability to conduct their missions was a permissible governmental purpose under Lemon, the Court held that, even assuming the earlier version of the statute was all that the religion clauses required, the burden enunciated above was adequate to justify congressional action. Id. at 335-36, 107 S.Ct. 2862. Approving Congress’s efforts to minimize inquiry into the activities of concededly religious organizations does not establish that such an inquiry would be constitutionally invalid, or that similar concerns arise when ascertaining whether a purportedly religious organization is in fact religious within the meaning of § 2000e-1(a). In short, Amos is of little relevance to the question of statutory interpretation we face.

The majority also cites NLRB v. Catholic Bishop, 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), for the proposition that “the very process of inquiry leading to findings and conclusions” with respect to the secular or religious nature of a particular activity impinges on First Amendment rights. See Concurrence of O’Scannlain, J., at 731.