This is the third in a series of five posts discussing our recent article in the BYU Law Review on Title VII's religious employer exemption.
In the last post we explained how a textualist reading of the religious employer exemption shows that the exemption applies when a religious employer confines employment to people who fit the employer's religious observances, practices, and beliefs. In this post we explain how that textualist reading resolves a long-running circuit split.
For decades, federal circuits have been divided over the proper interpretation of Section 702. On one side of the split are the Third, Fourth, Fifth, Sixth, and Eleventh Circuits. They read the exemption as authority for religious employers to choose employees who observe religious standards of conduct. On the other side is the Ninth Circuit. It reads the exemption as a narrow co-religionist privilege allowing religious employers to restrict employment to individuals who are nominally members of the employer's faith, but nothing more.
