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Spencer v. World Vision

August 23, 2010

SYLVIA SPENCER; TED YOUNGBERG; VICKI HULSE, PLAINTIFFS-APPELLANTS,
v.
WORLD VISION, INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding D.C. No. 2:07-cv-01551-RSM

The opinion of the court was delivered by: O'scannlain, Circuit Judge

FOR PUBLICATION

Argued and Submitted July 8, 2009-Seattle, Washington

Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges.

Opinion by Judge O'Scannlain; Concurrence by Judge Kleinfeld; Dissent by Judge Berzon

OPINION

We must decide whether a faith-based humanitarian organization is exempt from Title VII's prohibition against religious discrimination.

I.

Silvia Spencer, Ted Youngberg, and Vicki Hulse were terminated by World Vision, Inc. ("World Vision") on account of their religious beliefs. Religious discrimination is, of course, barred by Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e-2(a). That bar, however, does not apply to "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities." Id. § 2000e-1(a). World Vision's eligibility for this exemption is the issue presented in this appeal.

A.

World Vision describes itself as "a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice." What began in 1950, when Dr. Robert Pierce started sending a monthly donation to a child in China, has become World Vision International ("WVI"): a federation of eighteen independent and thirty-four semi-autonomous entities operating in countries around the world. World Vision-the party to this case-is the U.S. arm of WVI.

Spencer and Hulse had both worked for World Vision for approximately ten years prior to their dismissal. Spencer provided various services related to the upkeep and maintenance of the organization's technology and facilities, and Hulse was responsible for miscellaneous office tasks, such as scheduling and telephone coverage. Youngberg worked for World Vision for almost two years; his duties included coordinating shipping and facilities needs as well as scheduling.

When they were hired, Spencer, Hulse, and Youngberg (collectively, the "Employees") submitted required personal statements describing their "relationship with Jesus Christ." See infra p. 12554-55. All acknowledged their "agreement and compliance" with World Vision's Statement of Faith, Core Values, and Mission Statement. See infra pp. 12548-49, 12555.

In 2006, World Vision discovered that the Employees denied the deity of Jesus Christ and disavowed the doctrine of the Trinity.*fn1 As this was incompatible with World Vision's doctrinal beliefs-specifically, the belief that "there is one God, eternally existent in three persons: Father, Son, and the Holy Spirit"-the Employees were terminated. See infra p. 12548-49.

B.

The Employees lodged their complaint in the U.S. District Court for the Western District of Washington, alleging discrimination in violation of Title VII of the Civil Rights Act. In response, World Vision filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). On the Employees' motion, the district court converted World Vision's request into a motion for summary judgment and allowed discovery to proceed.

Ultimately, the district court granted summary judgment to World Vision, concluding that it was a religious entity within the meaning of 42 U.S.C. § 2000e-1. Spencer v. World Vision, Inc., 570 F. Supp. 2d 1279, 1280 (W.D. Wash. 2008). In making this determination, the district court decided that the factors discussed in EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993), "d[id] not provide an accurate framework . . . to determine whether a religious organization that is not an educational institution is entitled to Title VII exemption." Id. at 1285. The court instead relied on the factors discussed in LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007). Id. at 1285-86. Consideration of those nine factors led the court to hold that World Vision's "purpose and character are primarily religious," and thus, the organization fell within the language of 42 U.S.C. § 2000e-1. Id. at 1289.

The Employees timely appealed.

II.

[1] There is no dispute that the Employees were fired for religious reasons. For purposes of this appeal,*fn2 such termination was permissible if-and only if-World Vision is a "reli- gious corporation, association, . . . or society" under 42 U.S.C. § 2000e-1(a). Our only inquiry, therefore, is a de novo review of the district court's summary judgment that World Vision qualifies for the exemption. See Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) ("Viewing the evidence in the light most favorable to the plaintiffs, we must determine whether there are any genuine issues of material fact and whether the [district court] correctly applied the relevant substantive law.").*fn3

A.

Typically, the question of whether an organization is religious for purposes of section 2000e-1 warrants little analysis. In most cases, the organization seeking the exemption is "clearly" religious, and the result is straightforward. See EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). No one would dispute, for example, that the Church of Jesus Christ of Latter-Day Saints is a religious organization. See, e.g., Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).

[2] We have twice addressed this question where the result was less than obvious. In Townley, we decided that a for-profit manufacturer of mining equipment did not qualify for the exemption. 859 F.2d at 619. We characterized our inquiry as an effort "to determine whether the 'general picture' of [an] institution is primarily religious or secular." Id. at 618 n.14 (emphasis added). In making that determination, we emphasized that "each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation's purpose and character are primarily religious. Only when that is the case will the corporation be able to avail itself of the exemption." Id. at 618. We also analyzed the "far from comprehensive" legislative history of section 2000e-1, speculating that when it enacted the exemption, Congress "assumed that only those institutions with extremely close ties to organized religions would be covered. Churches, and entities similar to churches, were the paradigm." Id. at 617-18 ("[T]he central function of section 702 has been to exempt churches, synagogues, and the like, and organizations closely affiliated with those entities."). Institutions "merely 'affiliated' with a religious organization" would not qualify. Id. at 617.

In Kamehameha, we reaffirmed Townley while concluding that two private educational institutions did not qualify for the section 2000e-1 exception. 990 F.2d at 460. We further explained that section 2000e-1 would be construed "narrowly," and the institution seeking the benefit of the statute would "bear the burden of proving [it is] exempt." Id. Applying Townley's "primarily religious" test, we weighed the secular and religious characteristics of the schools, specifically referencing their (1) ownership and affiliation, (2) purpose, (3) faculty, (4) student body, (5) student activities, and (6) curriculum. Id. at 461-63.

[3] Ours has not been the only circuit to consider scope of the section 2000e-1 exemption. In LeBoon, the Third Circuit concluded that a Jewish community center was a religious organization within the meaning of section 2000e-1. In doing so, it agreed with Townley that the proper inquiry involved a weighing of " '[a]ll significant religious and secular characteristics.' " LeBoon, 503 F.3d at 226 (alteration in original) (quoting Townley, 859 F.2d at 618). The court then considered nine factors other "courts have looked at" in determining whether an entity qualified for section 2000e-1:

(1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists.

Id. (citing Kamehameha, 990 F.2d 458 and Townley, 859 F.2d at 618-19). The Third Circuit added the caveat that "not all factors will be relevant in all cases, and the weight given each factor may vary from case to case." Id. at 227. The court also noted that the section 2000e-1 exemption should not be denied to institutions because they, inter alia, engage in some secular activities, do not adhere to the strictest tenets of their faith, or do not hire only coreligionists. Id. at 229-30.

1.

The Employees' first contend that by applying the nine factors set forth in LeBoon, rather than the six factors laid out in Kamehameha, the district court violated Ninth Circuit precedent. The Employees argue that LeBoon "explicitly rejected the Ninth Circuit's narrow interpretation of § 2000e-1"-a narrow interpretation the Employees assert limits the exemption to "churches, synagogues, and the like" or "[c]hurches, and entities similar to churches." Townley, 859 F.2d at 618 & n.14

Despite the Employees' protestations to the contrary, our interpretation of section 2000e-1 is not as "narrow" as they would have it. First, in Townley, we did not confine our inquiry to considering whether the manufacturing firm at issue was essentially a church. Rather, we weighed all relevant religious and secular characteristics to determine whether the company at issue was "primarily religious or secular" in nature. See id. at 618-19. Moreover, Townley's allegedly limiting language- "[c]hurches, and entities similar to churches" -appears in its discussion of section 2000e-1's legislative history, a discussion on which our holding did not depend. See id.; see also Kamehameha, 990 F.2d at 460 n.5 ("In any event, the test the court adopted in Townley does not depend on an analysis of the legislative history.").*fn4 At the least, the comment seems more appropriately characterized as a "suggestion" rather than a strict rule. LeBoon, 503 F.3d at 230.

Second, the reading of section 2000e-1 propounded by the Employees is belied by the text of the statute. Congress extended the exemption to any "religious corporation, association, . . . or society." 42 U.S.C. § 2000e-1(a). If Congress had intended to restrict the exemption to "[c]hurches, and entities similar to churches" it could have said so. Because Congress did not, some religious corporations, associations, and societies that are not churches must fall within the exemption.*fn5

Third, the canon of constitutional avoidance counsels against the Employees' stringent interpretation of section 2000e-1. See NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979) ("[A]n Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available."). In Townley itself, we noted that the Free Exercise Clause "clearly" protects "organizations less pervasively religious than churches." 859 F.3d at 620 n.15; see also id. at 618 n.13 (explaining that even absent the exemption for religious organizations, "the First Amendment would limit Title VII's ability to regulate the employment relationships within churches and similar organizations"). Moreover, the Employees' reading also potentially runs afoul of the Establishment Clause's core command of neutrality among religious groups. See, e.g., Larson v. Valente, 456 U.S. 228, 244 (1982) ("[The] clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."). As the United States argues as amicus, interpreting the statute such that it requires an organization to be a "church" to qualify for the exemption would discriminate against religious institutions which "are organized for a religious purpose and have sincerely held religious tenets, but are not houses of worship." See Thomas M. Messner, Can Parachurch Organizations Hire and Fire on the Basis of Religion Without Violating Title VII?, 17 U. Fla. J.L. & Pub. Pol'y 63, 69-71 (2006) (listing numerous such "parachurch" organizations); see also Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008). It would also raise the specter of constitutionally impermissible discrimination between institutions on the basis of the "pervasiveness or intensity" of their religious beliefs. Colo. Christian, 534 F.3d at 1259; see also Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) ("[A]n exemption solely for 'pervasively sectarian' schools would itself raise First Amendment concerns- discriminating between kinds of religious schools."). Thus, the cramped reading of the exemption put forth by the Employees raises serious questions under both the Free Exer- cise Clause and the Establishment Clause. As we must, we reject this constitutionally questionable interpretation.

That said, there is no denying that we have held that section 2000e-1 should be construed "narrowly." Kamehameha, 990 F.2d at 460. But the same panel which held that a narrow construction was necessary found nothing contradictory between such a reading and Townley's requirement of a case-by-case weighing of " '[a]ll significant religious and secular characteristics . . . to determine whether the corporation's purpose and character are primarily religious.' " Id. (quoting Townley, 859 F.2d at 618). Analysis of additional or alternative factors cannot contravene circuit precedent which explicitly mandates consideration of " '[a]ll significant religious and secular characteristics.' " Id. (emphasis added).

In sum, when confronted with a section 2000e-1 case, Townley and Kamehameha require us to analyze, on a case-by-case basis, whether the "general picture" of an organization is "primarily religious," taking into account "[a]ll significant religious and secular characteristics."*fn6

2.

Though our precedent provides us with the fundamental question-whether the general picture of World Vision is primarily religious-we must assess the manner in which we are to answer that question in the case at hand. Again, we are told that we must evaluate "[a]ll significant religious and secular characteristics." Townley, 859 F.2d at 618. The Employees insist that this means we should analogize and apply the Kamehameha factors. World Vision urges us to do the same with those considered in LeBoon.

a.

Of course, our caselaw does not compel us to march down a checklist of considerations. Quite the contrary, we have never "attempt[ed] to outline [section 2000e-1's] precise scope," concluding instead that "each case must turn on its own facts." Townley, 859 F.2d at 618. We would thus be remiss to hold that factors which are "significant" in one case must be similarly "significant" in all others. As the Third Circuit trenchantly observed, "not all factors will be relevant in all cases, and the weight given each factor may vary from case to case." LeBoon, 503 F.3d at 227. Our past precedent tracks this methodology. We did not consider identical "factors" in Kamehameha and Townley. Compare Townley, 859 F.2d at 619, with Kamehameha, 990 F.2d at 461-63. This makes eminent sense. After all, Kamehameha involved an educational institution. Townley involved a for-profit manufacturing company. Thus, it should come as no surprise that dogmatic application of the factors set forth in Kamehameha -several of which were explicitly tailored to schools-is inapt when we consider the status of World Vision. As a nonprofit humanitarian relief organization, World Vision is a different animal.

Rigid adherence to the LeBoon factors is also unwarranted, though for several additional reasons. As an initial matter, applying some of the factors set forth in that opinion to entities such as World Vision could create several oddities. To take just one example, LeBoon could be read to ask us to consider whether World Vision's "members"-here, its employees-are coreligionists. See LeBoon, 503 F.3d at 226. But if World Vision does not qualify for the exemption, hiring employees on the basis of their religion would constitute a gross violation of Title VII. We will not encourage organiza- tions to take actions that might otherwise be illegal in order to boost their chances to qualify for the exemption. See Killinger v. Samford Univ., 113 F.3d 196, 199-200 (11th Cir. 1997) ("We are also aware of no requirement that a religious educational institution engage in a strict policy of religious discrimination-such as always preferring Baptists in employment decisions-to be entitled to the exemption.").

b.

Even more importantly, several of the LeBoon factors could be constitutionally troublesome if applied to this case. For example, one of the factors asks us to take into account the "religious" or "secular" nature of a particular product or service. See LeBoon, 503 F.3d at 226. The Supreme Court, however, has repeatedly cautioned courts against venturing into this constitutional minefield.

In Amos, the Court found exactly this sort of inquiry problematic in the context of determining whether a particular employee's duties were religious or secular. There, the lower court had held that a "building engineer" at a church gymnasium performed a secular activity. 483 U.S. at 332. The Supreme Court reversed, explaining that to force an organization to "predict which of its activities a secular court will consider religious," would impose a "significant burden" and "might affect the way an organization carried out what it understood to be its religious mission." Id. at 336. As Justice Brennan wrote in concurrence, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.

Id. at 343-44 (Brennan, J., concurring) (internal citation omitted). If we should not be in the business of determining whether a particular "activity" is religious or secular, our competence to make that determination with respect to a particular "product" or "service" is in serious doubt.

Similarly, in New York v. Cathedral Academy, 434 U.S. 125 (1977), the Court struck down a law which authorized reimbursement payments to nonpublic schools for certain "testing services required by state law." Id. at 127. The Court held that the law created a Catch-22: it either impermissibly advanced religion by providing support for testing which furthered religion, or it resulted in excessive entanglement with religion as the government attempted to sort out religious and non-religious activities. Id. at 132-33. As to the latter, the Court remarked that "[t]he prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment."*fn7 Id. at 133.

In the case at hand, however, we have repeatedly been asked to engage in exactly this sort of inquiry into "what does or does not have religious meaning." For example, World Vision contends that its humanitarian relief efforts have religious meaning; the Employees claim they do not. If we were to apply this prong of the LeBoon test to the case at hand, we would at least implicitly have to answer to that question. The very act of making that determination, however, runs counter to the "core of the constitutional guarantee against religious establishment." Cathedral Acad., 434 U.S. at 133; see also Catholic Bishop, 440 U.S. at 502 (noting that, when inquiring into whether a particular position was religious or secular, "[i]t is not only the conclusions that may be reached by the [government agency] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions" (emphasis added)); cf. Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) ("[I]nquiry into . . . religious views . . . is not only unnecessary but also offensive. It is well established . . . that courts should refrain from trolling though a person's or institution's religious beliefs.").

Section 2000e-1's statutory history suggests that we are not the only governmental entity to recognize the dangers of this particular inquiry. An earlier version of the statute extended the exemption merely to the "religious activities" of covered organizations. See Civil Rights Act of 1964, Pub. L. No. 88-352, § 702, 78 Stat. 241, 255 (stating that Title VII did not apply "to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities" (emphasis added)). Congress amended the statute, however, to remove the limiting reference to "religious activities." See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 3, 86 Stat. 103, 104.

On a related note, LeBoon asks us to determine whether an organization's founding purpose is religious or secular in nature. See LeBoon, 503 F.3d at 226. For all the reasons discussed above, where the nature of an organization's purpose is disputed, this factor is a second invitation to wander into the constitutional briar patch of distinguishing between the sacred and the secular. If we are ill-equipped to determine whether an activity or service is religious or secular in nature, how are we to know which side of the line an entity's "pur-pose" falls on?*fn8

c.

The factor which would have us ask whether an organization is affiliated with or supported by a "formally religious" entity is no less problematic. See LeBoon, 503 F.3d at 226; Kamehameha, 990 F.2d at 461. In the first place, this inquiry begs the question: it gives no means by which to determine whether the parent organization is religious. While that answer is obvious when dealing with, for example, a Catholic hospital, it would not be so straightforward when the parent entity is less obviously religious.

Moreover, this consideration contains the potential for discrimination amongst religious institutions. In short, a constrained reading of this factor favors institutions which claim a denominational affiliation over those who do not.*fn9 As the United States argues as amicus curiae, "[t]o deny World Vision the protection of section 2000e-1(a) also could raise serious constitutional questions by discriminating in favor of houses of worship and against independent, 'parachurch' groups like World Vision, which are organized for religious purposes and have religious tenets, but are not affiliated with any particular congregation or sect." See also Larson, 456 U.S. at 244; Colo. Christian, 534 F.3d at 1259 (refusing to discriminate between "types" of religious institutions); Great Falls, 278 F.3d at 1346 (same).

d.

The Supreme Court's decision in Larson is instructive. In that case, the Court struck down "a Minnesota[ ] statute imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty percent of their funds from nonmembers." 456 U.S. at 230. The Court observed that such law made "explicit and deliberate distinctions between different religious organizations." Id. at 246 n.23. It effectively distinguishe[d] between well-established churches that have achieved strong but not total financial support from their members, on the one hand, and churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members, on the other hand.

Id. (internal quotation marks omitted). Such preferences were unconstitutional unless justified by compelling governmental interests. Id. at 246-47.

Thus, weighing the religious or irreligious nature of funding sources could pose similarly troublesome difficulties involving "distinctions between different religious organizations." As was the case in Larson, looking to whether an entity is "financially supported" by a formally religious entity could effectively discriminate between "well-established" organizations, who have weaned themselves of revenue from their "mother" church, and those "which are new" and still dependent on their parent organization. In the same way, such inquiry could discriminate between organizations which "favor public solicitation over general reliance on financial support" from other religious institutions.*fn10

In spite of these attendant constitutional concerns, both Townley and Kamehameha relied on characterizations of whether certain attributes of a organization were secular or religious in nature. See Kamehameha, 990 F.2d at 461-63; Townley, 859 F.2d at 619. Those characterizations, however, were not our own. In Townley, the secular nature of the company's product was "admitted[ ]." 859 F.2d at 619. Likewise, Kamehameha contains no indication that the religious or secular nature of any particular activity or purpose was in dispute.*fn11

See 990 F.2d at 461-64. Obviously, if there is no controversy regarding a religious or secular classification, the constitutional concerns detailed above are not implicated. Thus, where there is no dispute that a particular activity or purpose is religious in nature, we may rely on the parties' characterization. In a case such as this, where the matter is hotly contested, however, we should stay our hand and rely on considerations that do not require us to engage in constitutionally precarious inquires. See LeBoon, 503 F.3d at 230 (citing entanglement concerns as a reason for declining to decide whether an activity was religious or cultural).

e.

As for the affiliation factor, to the extent we are required to consider it, we are disinclined to afford it much weight in light of potential it presents for discrimination amongst religious institutions.*fn12 The fact that prior organizations found eligible for section 2000e-1 relief have generally been "wholly or partially owned by a church," Kamehameha, 990 F.2d at 461 n.7, does not mean that we should deny relief to equally religious organizations that are not similarly affiliated.

III.

A.

Although Judge Kleinfeld and I agree on the forgoing principles and on the result in this case, we disagree as to the proper test for distinguishing religious entities entitled to the section 2000e-1 exemption from those entities not entitled to the exemption.

[4] In my view, where the religious or non-religious nature of a particular activity or purpose is in dispute, we should not rely exclusively on LeBoon's hodgepodge of constitutionally questionable inquiries. Rather, I believe the better approach can be summarized as follows: a nonprofit entity*fn13 qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious. See Great Falls, 278 F.3d at 1343; Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 399-400, 403 (1st Cir. 1985) (en banc) (Breyer, J.).

This analysis minimizes any untoward differentiation among religious organizations and any unseemly judicial inquiry into whether an activity is religious or secular in nature. First and foremost, it centers on neutral factors (i.e., whether an entity is a nonprofit and whether it holds itself out as religious). Rather than forcing courts to "troll[ ] through the beliefs of [an organization], making determinations about its religious mission," Great Falls, 278 F.3d at 1342, it permits an institution to acknowledge its own religiosity. The furtherance prong likewise avoids any untoward judicial inquiry; all we must do is evaluate the purpose provided by the organization against the organization's practice.

[5] The initial consideration, whether the entity is a nonprofit, is especially significant. Because "persons having a personal and private interest in the activities of [a nonprofit] organization" may not receive any portion of its net earnings, 26 C.F.R. § 1.501(a)-1(c); see id. § 1.501(c)(3)-1(c)(2), an organization's status as a nonprofit bolsters a claim that its purpose is non-pecuniary. It is true that a "nonprofit" may make a "profit"- at least in the sense that it may have net earnings because its revenues exceed its costs. But, a nonprofit entity is distinguished from a for-profit entity by what it does with its net earnings. A nonprofit entity must spend any net earnings to advance its tax-exempt purpose, and may not distribute its net earnings to its principals as dividends, bonuses, or excessively high salaries. See 26 U.S.C. § 501(c)(3) (stating that an organization qualifies as a nonprofit if "no part of the net earnings of [the organization] inures to the benefit of any private shareholder or individual"); see also 26 C.F.R. § 1.501(c)(3)-1(b)(4). This is not to say that a nonprofit organization may not compensate its employees at a market rate. See 26 C.F.R. § 1.501(c)(3)-1(f)(2)(ii) (stating that the IRS may revoke an organization's nonprofit status for providing its employees disproportionate compensation for their services). Just as a nonprofit hospital may pay $5 million for a new MRI machine that costs $5 million, it may pay $400,000 a year to hire a radiologist when the going rate for a radiologist is $400,000 a year. See id.

[6] Because a nonprofit may not distribute its net earnings to its organizers or employees, the fact that an entity is structured as a nonprofit provides strong evidence that its purpose is purely non-pecuniary. As Justice Brennan observed in his concurrence in Amos, "[t]he fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation." Amos, 483 U.S. at 344 (Brennan, J., concurring).*fn14 Indeed, "nonprofits historically have been organized specifically to provide certain community services, not simply to engage in commerce." Id. "[P]rovision of such services [is often regarded] as a means of fulfilling religious duty and providing an example of the way of life a [religion] seeks to foster." Id. These realities bolster a "contention that an entity is not operated simply in order to generate revenues . . . , but that the activities themselves are infused with a religious purpose." Id.

[7] The test I propose also ensures that the section 2000e-1 exemption will remain "narrow[ ]." Kamehameha, 990 F.2d at 460. Requiring that an organization hold itself out as religious "helps to ensure that only bona fide religious institutions are exempted." Great Falls, 278 F.3d at 1344. "[S]uch public representations serve as a market check. While public religious identification will no doubt attract some [people] to the institution, it will dissuade others. In other words, it comes at a cost. Such market responses will act as a check on institutions that falsely identify themselves as religious merely to obtain [the benefit of the section 2000e-1] exemption . . . ." Id.

B.

Having set forth what I believe to be the appropriate test to determine whether an organization qualifies for the section 2000e-1 exemption, I ...


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