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Taking diversity seriously: Religious associations and work-related discrimination 91
with respect to religious activities, so that a determination should be made
in each case whether an activity is religious or secular’, since ‘the
infringement on religious liberty that results from conditioning performance
of secular activity upon religious belief cannot be defended as
necessary for the community's self-definition’. 73
Brennan J nevertheless decided that such a case-by-case determination
would be inappropriate since it would involve ‘ongoing government
entanglement in religious affairs’, which could result in a religious
organisation being ‘chilled in its free exercise activity’. 74 He expands on
this point as follows: 75
While a church may regard the conduct of certain functions as integral to its
mission, a court may disagree. A religious organisation therefore would have
an incentive to characterise as religious only those activities about which there
likely would be no dispute, even if it genuinely believed that religious
commitment was important in performing other tasks as well. As a result, the
community's process of self-definition would be shaped in part by the
prospects of litigation.
Brennan J concluded that the ‘categorical exemption’ contained in section
702 (as amended) covering all types of church employees, no matter what
the job, appropriately balances the right of employees to religious liberty
and the autonomy of religious organisations. 76 In contradistinction to the
District Court, the Supreme Court upheld the constitutionality of section
702.
On the kind of reasoning followed by the Supreme Court in Amos, (1)
above is false and the Equality Court in Strydom is mistaken to require that
the church demonstrate that the relevant position is connected to its
religious beliefs or practices, since this would place pressure on religious
associations to predict which of its activities judges would consider
regulable and which exempt – fear of potential liability would ‘chill’
associational life. On the Supreme Court's approach, Basson J should have
shown ‘deference’ 77 to the church's view of what it considers to be a
religiously related activity.
The approach of the Supreme Court is, however, incorrect. There is no
good reason to think that if an exemption were restricted to religious
activities, courts would restrict the group's self-definition by imposing a
narrow view of the religious. 78 True, there is a always a danger that when
deciding whether to grant or withhold an exemption, courts will employ
73 n 67 above, 343.
74 As above.
75
n 67 above, 343 - 344. White J, who delivered the opinion of the court, expresses the
same view at 336.
76 n 67 above, 345 - 346.
77
n 67 above, 345.
78 Rosenblum (n 13 above) 176.