Title VII and Titus I

Mark Almlie’s story made the New York Times recently, garnering plenty of heated comments in the meantime. In case you haven’t heard of him, he’s a qualified evangelical minister in every way but one: he’s not married, and because of that, he hasn’t been able to land even one of the 500 pastoral jobs he’s applied for in the past two years.  The Times article cited David Middlebrook, a specialist in religion law as saying that federal anti-discrimination law “specifically exempts religious groups when they hire a person for religion-related activities.” He added that courts generally don’t want to get involved in the question of ministerial employment.

Sure, Title VII—the section of the 1964 Civil Rights Act prohibiting employment discrimination on the basis of race, color, religion, sex, or national origin—does exempt religious organizations, but only with respect to religious-based discrimination. In other words, churches are allowed to discriminate on the basis of religion—religion being obviously pertinent and essential to the functioning of the church—but they’re not permitted legally to discriminate on the basis of race or national origin. Plus, Title VII and the Equal Employment Opportunity Commission have no jurisdiction over cases of discrimination based on marital status—a federal law (Civil Service Reform Act of 1978) prohibits discrimination on the basis of marital status for federal employees, but not for employees generally. However, 20 states—including California, where Almlie lives—protect employees from discrimination on the basis of marital status. Pardon me for questioning the expert in religion law, but I can’t see how the Almlie situation isn’t protected by the laws of California and 19 other states. Middlebrook’s citing of the religious organization exemption looks to me like a red herring.

In order to legally discriminate, employers must demonstrate “Bona Fide Occupational Qualification”—the burden of proof necessary to a legal exemption from anti-discrimination law. But BFOQs, as they’re called, are tricky to prove. An employer has to demonstrate that the otherwise unlawful requirement—say, that the employee be married—is “reasonably necessary to the normal operation of the particular business.” So while it’s clear that being Southern Baptist would be a reasonably necessary qualification to the normal operation of a Southern Baptist church, the same cannot be said for requirements based on, say, age, race, or marital status. I’m no expert (and no Southern Baptist, for that matter) but I’m not certain that one could truthfully say that being married is a reasonably necessary qualification to the normal operation of a Protestant church.

Of course, there are some evangelicals who would argue that marital status is a BFOQ—Al Mohler, for one. On his blog, Mohler explains his pragmatic case for advising his seminary students to marry, ultimately basing his view on his reading of the New Testament. He’s certain that 1 Timothy 3 and Titus 1 conclusively indicate that one of the Biblical requirements for pastors is marriage, more specifically, that they be “husband of one wife.” Problem is, not all Biblical exegetes agree; many feel that the Greek phrase, being adjectival, would more accurately be rendered “a one-woman man”—a concept quite different from the usual English translation. To my reading, the passages in question seem to be saying a lot more about a prospective elder’s character than his marital status—is he the kind of person who will be (among other things) sexually faithful, not “is he married?” Those Scripture passages also speak of the elder as being a parent of children who are believing and moral, but I think even Mohler would be loathe to take this to mean that pastors who are childless are not fully qualified according to the New Testament. And while Mohler doesn’t want real-world scenarios to cloud what he seems to think is Biblically self-evident, I can’t help but wonder what he’d say, for example, about a pastor who was suddenly widowed—is he then automatically disqualified from his ministry? Furthermore, Jesus himself, and possibly the Apostle Paul, would be ineligible to serve under that reading. It’s a thorny issue, to be sure, but at the very least, I think we can say that Scripture isn’t perfectly clear on the issue, and neither is church history. There’s not only no consensus within Christendom—there’s none within conservative evangelicalism. Would a state court grant as a BFOQ a qualification that evangelicals disagree upon? 

I’m no lawyer—and I don’t play one on the Wii—but Mark Almlie probably has a legitimate case. Given the inflammatory nature of this issue—and given the retaliation that he’d likely face by doing so—I have my doubts that he’ll take it before the courts of the land. Even though I believe he’s been treated unjustly—wrongfully, in fact, to gently contradict Mohler—pursuing justice in the courts would likely only strengthen the discrimination he already faces. Perhaps knowing that unjust scales—like the ones that have weighed Almlie and found him wanting for lack of a wife—are intolerable to God is a small consolation for those suffering from discrimination that’s cloaked in the language of spiritual or Scriptural qualification. Yearning for the courts of the Lord is, of course, what we Christians do. Is it enough?