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Taking diversity seriously: Religious associations and work-related discrimination 89
violated its free exercise rights, Burger CJ held that ‘[t]he government has
a fundamental, overriding interest in eradicating racial discrimination in
education … [which] substantially outweighs whatever burden denial of
tax benefits places on petitioner's exercise of their religious beliefs’. 64
Both the Supreme Court's reasoning and its conclusion seem correct.
But if that is so, does it not support the finding in Strydom that the state's
interest in eradicating sexual orientation discrimination outweighs
whatever burden is placed on the church's religious freedom by prohibiting
it from discriminating on prohibited grounds? It does not. The issue in
Strydom was not the revocation of a state-conferred privilege, but whether
a church should be sanctioned for failing to make its internal affairs
conform to a (meritorious) public principle: non-discrimination. In Bob
Jones University, the Supreme Court does not rule that a private, religious
university may be forced to abandon its internal, racially-discriminatory
policy on pain of civil or criminal sanction. Such a step, as Galston
observes, 65
would have implicated basic rights of freedom of association and free exercise
of religion that the court has long defined and protected, and it would have
called for an entirely different legal analysis. Even employing the line of
reasoning it used to settle Bob Jones, the court would almost certainly have
found that unlike the mere revocation of tax exemption, a direct order to
change the discriminatory policy would have failed the balancing test by
imposing an ‘undue burden’ on petitioners’ free exercise.
So, the approach followed in Bob Jones University is on closer inspection
hardly supportive of the approach taken in Strydom. Extending the
precedent of Bob Jones University to the facts of Strydom would mean not
invalidating the church's discrimination on a prohibited ground, but
burdening the church by removing all forms of otherwise applicable public
encouragement and favour, including financial subvention and tax-exempt
status. 66
Let us return to the claim implicitly made by the court in Strydom
reflected in (1) above: that an exemption to permit a church-run institution
to engage in work-related discrimination should only be granted if the
activities performed by the individual against whom the church seeks to
discriminate are sufficiently proximate to the beliefs of the religion. A US
Supreme Court decision subsequent to Bob Jones University – Corporation of
the Presiding Bishop v Amos 67 – is worth considering because it contradicts
this claim and also because, unlike Bob Jones University, it deals with workrelated
discrimination.
64 Bob Jones University (n 62 above) 604.
65 Galston (n 40 above) 183.
66
See, for a version of this proposal, I Shapiro Democracy's place (1996) 244.
67 483 US 327 (1987).