Employment, Sexual Orientation and Religious Beliefs: Do Religious Educational Institutions have a Protected Right to Discriminate in the Selection and Discharge of Employees?

The life blood of religious educational institutions is their doctrinal statements and codes of conduct that set standards for employee and student life. The purpose of this paper is to examine the freedom of religious educational institutions to make employment decisions related to three homosexuality related areas: sexual orientation, same-sex sexual activity outside marriage, and same-sex marriage. At the core of the discussion is the basic question whether religious educational institutions have a protected right to enforce doctrinal statements or codes of conduct addressing one or more of these areas.

This paper will examine legal issues related to the ability of religious educational institutions to declare and enforce their religious beliefs regarding same-sex relationships. This discussion involves a balancing of important interests. On one side is the interest of government in prohibiting discrimination, retaliation, and harassment against persons engaged in protected activity. On the other side are the free exercise, free speech and expressive association rights of religious educational institutions to express and enforce their religious beliefs.