Faith Under Fire
Religious Employers May Have Lost Constitutional Protections, Intentionally
Yesterday, I wrote about apprehensions surrounding the incorporation of religious tenets into legal analyses, spotlighting potential perils to the Establishment Clause of the First Amendment. Today, I examine the reverse facet of this constitutional principle, spotlighting concerns of another one of the First Amendment's critical guarantees: the right to freely exercise one's sincerely held religious beliefs.
The Minnesota Department of Human Rights has traditionally been required to allow religious organizations considerable latitude in their hiring practices, enabling them to align personnel decisions with their faith traditions. This long-standing protection has been important for religious institutions, affirming their right to maintain a workforce that reflects their doctrinal beliefs and values. For example, under existing state laws, a private Christian school could lawfully decline to hire individuals who do not adhere to its faith principles, such as those identifying as gay, lesbian, or Muslim. These protections are not only present under the First Amendment, but also the Minnesota Constitution1.
The Minnesota Human Rights Act was written to maximize the goals of antidiscrimination, and the goals of religious freedom and pluralism.
- Rep. Harry Niska (31A)
However, a recent legislative change introduced during the 2023 session2 has introduced complexity to this clear-cut scenario by incorporating the term "gender identity" into state law without providing adjustments to ensure religious institutions' autonomy remains protected. This intentional omission3 creates a legal ambiguity that could compel religious organizations to hire individuals whose gender identity conflicts with the institution's religious beliefs, directly challenging their doctrinal integrity and operational freedom.
In response to this legislative change, Rep. Harry Niska proposed an amendment in the House Judiciary Committee to the Minnesota Department of Human Rights’ proposed policy bill aimed at preserving the hiring autonomy of religious groups, explicitly to prevent them from being mandated to hire individuals whose gender identity contradicts their sincerely held religious beliefs, including transgender and nonbinary individuals. This amendment sought to clarify and safeguard the rights of religious organizations under the Minnesota Human Rights Act, ensuring that their fundamental freedoms are not eroded by the recent legislative addition of "gender identity" without due consideration for religious liberty.
In proposing his amendment, Niska endeavored to elucidate and fortify the principle that religious institutions should not be forced to breach their doctrinal integrity by being required to employ individuals whose gender identity might clash with the organization's deeply held religious convictions. This initiative was not about creating new avenues for discrimination; instead, it aimed to reconcile the law with the nuanced equilibrium between anti-discrimination mandates and the constitutionally enshrined right to free religious exercise.
The simple and clear approach of Niska's amendment was to preserve the autonomy of religious organizations in their hiring decisions amidst the broadening scope of anti-discrimination statutes to encompass gender identity.
Its legal logic was straightforward, to broaden the scope of existing legal safeguards that protect religious entities from allegations of discriminatory practices across various categories, such as race, color, creed, religion, national origin, sex, marital status, status regarding public assistance, familial status, disability, sexual orientation, or age, as detailed in MN Statutes 363A.08. This measure was an appropriate protective action, ensuring that the expansion of anti-discrimination laws does not inadvertently infringe upon the fundamental freedoms of religious practice.
The amendment garnered significant attention and support from a diverse spectrum of religious communities, illustrating the widespread concern over potential encroachments on religious liberty. During the legislative hearing, representatives from various faith traditions—including Catholic, Protestant, Lutheran, and Islamic organizations—voiced their unified stance on the importance of maintaining control over their hiring processes. Dan Beckering from Southwest Christian High School, Reverend Frederick Hinz from the Lutheran Church-Missouri Synod, and Zaheer Baber from the Islamic Center of Minnesota, highlighted the critical nature of this issue.
This broad-based representation from different religious groups emphasized the amendment's significance, not as an issue isolated to any single faith community but as a matter of principle affecting the fundamental right of religious organizations to uphold their doctrinal values through their hiring practices. The resistance encountered by the amendment, particularly when seen against the backdrop of existing protections for other characteristics, was puzzling for many, reflecting the clear action needed to address the balance between anti-discrimination efforts and the preservation of religious freedom.
The discussion within the legislative committee took an emotionally charged turn as some members seized the moment to critique the intentions of various religious organizations testifying. They insinuated that these groups were motivated by hate, a desire to discriminate, denying the existence of transgender individuals, and acting out of prejudice.
While the fervor of these objections is understandable given the sensitive nature of the topics involved, it failed to recognize the fundamental legal reality at hand: the government is constitutionally barred from unduly infringing upon the rights of religious organizations to practice their beliefs. This includes the comprehensive prohibitions against discrimination on numerous grounds that are already enshrined in law.
Niska’s amendment is a measured and nuanced legal adjustment aimed at clarifying protections that already exist in law.4 It is not a dramatic overhaul of the existing legal landscape.
The introduction of "gender identity" into Minnesota state law while intentionally omitting protections for religious institutions' hiring practices is creating a looming constitutional crisis where religious entities are now vulnerable to legal action for exercising their values in ways that have historically been protected by both the U.S. and Minnesota constitutions.
Every person has the right to express their identity without governmental interference. This right dovetails with the First Amendment's robust protection for the free exercise of religious beliefs, affirming the liberty to adhere to and associate with others based on one’s religious convictions. While this liberty may lead to selective employment decisions, especially when an individual's beliefs contrast with those of a religious employer, the most effective solutions to such conflicts emerge not from government intervention but from the dynamics of society itself.
Societal engagement and market mechanisms will always outperform governmental efforts in promoting inclusivity and rectifying discrimination. The marketplace, driven by the collective actions and decisions of individuals, is intrinsically more capable of addressing and rectifying instances of discrimination than any government entity.
The Minnesota Constitution protects religious exercise primarily through Article I, Section 16, which addresses freedom of conscience and the rights of religious belief and worship. This provision states:
"Freedom of conscience; no preference to be given to any religious establishment or mode of worship. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry against his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state."
S.F.No. 2909, the Omnibus Judiciary and Public Safety bill of 2023, introduced a definition of "gender identity" to the Minnesota Human Rights Act, specifying it as "a person's inherent sense of being a man, woman, both, or neither," and acknowledging that this sense of identity may not align with the sex assigned at birth or visible secondary sex characteristics. This addition aims to provide clarity and protection within the Act against discrimination based on gender identity ("S.F.No. 2909 - Omnibus Judiciary and Public Safety bill," 2023). [Minnesota Legislature. (2023). S.F.No. 2909, Omnibus Judiciary and Public Safety bill. Retrieved from https://www.revisor.mn.gov/bills/text.php?number=SF2909&version=latest&session=ls93&session_year=2023&session_number=0]
Rep. Jamie Becker-Finn, Chair of the House Judiciary Committee, testified on February 29, 2024, that the omission of protections for religious groups related to hiring practices exemptions for claims of gender identity was intentional.^1
^1 YouTube video, "House Judiciary Committee," testimony by Rep. Jamie Becker-Finn, February 29, 2024, at 16:43
The Minnesota Human Rights Act (MHRA) prohibits employment discrimination on the basis of race, color, creed, religion, national origin, sex, marital status, disability, public assistance status, age, sexual orientation, and familial status. However, similar to federal law, the MHRA includes exemptions for religious associations or corporations not organized for private profit. This exemption allows religious organizations to impose hiring criteria based on religious principles, as long as such criteria are not used as a pretext for discrimination on other prohibited grounds.