Download this publication - PULP

88 Chapter 3
in other jurisdictions can help us to discover arguments for or against
exemptions to laws that prohibit work-related discrimination that might
otherwise be overlooked but are worthy of consideration. 61 What an
analysis of the US and Canadian cases in particular shows, I think, is that
certain of the views expressed by the Court in Strydom are mistaken and in
need of revision.
My analysis of the decisions in these other jurisdictions will not be
confined to cases that deal with work-related discrimination by religious
associations. In order to discover the fullest range of reasons and views
potentially applicable to the issue of whether religious associations should
be permitted to engage in otherwise illegal work-related discrimination,
my analysis will be extended to include cases in which religious and secular
associations have claimed the right to discriminate in the workplace and
other contexts.
5 Comparative perspectives
5.1 The United States
Though it may at first appear otherwise, the US Supreme Court has in a
series of decisions held that there are limits to the government's ability to
enforce even core public commitments such as non-discrimination when
these principles collide with religious beliefs of organisations. In Bob Jones
University v United States, 62 the Supreme Court had to determine whether
the Internal Revenue Service (IRS) could rescind the University's tax
exempt status on the grounds that it prohibited inter-racial dating and
marriage between students. Bob Jones University, though not affiliated
with any religious denomination, taught and propagated fundamentalist
Christian beliefs. The sponsors of the University believed that the Bible
forbids miscegenation and instituted a disciplinary rule to give effect to this
conviction. As a result of its racially-discriminatory policy, the IRS
revoked the University's tax-exempt status. The Supreme Court held that
the IRS was entitled to do so. Burger CJ ruled that the justification for tax
exemptions was that ‘the exempt entity confers a public benefit’ but, since
the University's racially-discriminatory policy ‘violates a deeply and
widely-accepted view of elementary justice’, it ‘cannot be viewed as
conferring a public benefit’. 63 Since a tax exemption is a privilege rather
than a right, the IRS was entitled to withdraw the exemption. In response
to the University's argument that the IRS's revocation of the tax exemption
61 For a discussion of the judicial use of a comparative approach in human rights
adjudication, see C McCrudden ‘A common law of human rights? Transnational
judicial conversations on constitutional rights’ (2000) 20 Oxford Journal of Legal Studies
499.
62
461 US 574 (1983).
63 Bob Jones University (n 62 above) 591 592 595.