IHAQ,
Before I respond to the substance of your question, I want to thank you for asking it. I enjoy trying to chase down answers to questions that people have on legal issues because I inevitably learn new and interesting things. Your question was no different. I discovered two Supreme Court cases decided in the last decade that I hadn't paid attention to before that I think are pretty significant. More on that later in the post.
After doing some digging, the answer is "I'm not sure." As I pointed out before and will discuss a little more, religious employers are permitted to discriminate on the basis of religion in ways that a private employer are not. For specifics, I started with Federal rather than state law. Under the Constitution's Supremacy clause, state law cannot take away anti-discrimination protections provided by Federal law. My state can provide more protection, but not less.
Two federal laws have an impact on the answer to your question. I'm going to quote from the dissenting opinion of Justice Sotomayor in a 2020 case titled
OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-BERRU for a summary of those laws and what they do.
Our pluralistic society requires religious entities to abide by generally applicable laws. E,g., Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879– 882 (1990). Consistent with the First Amendment (and over sincerely held religious objections), the Government may compel religious institutions to pay Social Security taxes for their employees, United States v. Lee, 455 U. S. 252, 256–261 (1982), deny nonprofit status to entities that discriminate because of race, Bob Jones Univ. v. United States, 461 U. S. 574, 603–605 (1983), require applicants for certain public benefits to register with Social Security num- bers, Bowen v. Roy, 476 U. S. 693, 699–701 (1986), enforce child-labor protections, Prince v. Massachusetts, 321 U. S. 158, 166–170 (1944), and impose minimum-wage laws, Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303–306 (1985).
Congress, however, has crafted exceptions to protect religious autonomy. Some antidiscrimination laws, like the Americans with Disabilities Act, permit a religious institution to consider religion when making employment decisions. 42 U. S. C. §12113(d)(1). Under that Act, a religious organization may also “require that all applicants and employees conform” to the entity’s “religious tenets.” §12113(d)(2). Title VII further permits a school to prefer “hir[ing] and employ[ing]” people “of a particular religion” if its curriculum “propagat[es]” that religion. §2000e–2(e); see also §2000e–1(a). These statutory exceptions protect a religious entity’s ability to make employment decisions—hiring or firing—for religious reasons.
https://www.supremecourt.gov/opinions/1 ... 7_1an2.pdf. If you have an interest in where the law is headed when it comes to employment by religious schools, I highly recommend reading the majority, concurrence, and dissent.
Religious organizations as used in those statutes includes educational institutions owned or controlled by religious organizations.
Under these statutes, qualify educational institutions can discriminate on the basis of religion in hiring and firing in favor of their own adherents. But that doesn't really answer your question, which is can it give less favorable treatment to its religious adherents. Not surprisingly, I didn't find any high profile cases that specifically address that question. It's generally the other way around. There may be a case out there somewhere that addresses it, but that's a ton of searching.
I found articles commenting on religious preference in hiring, but they appear to assume that religious organizations are simply exempt from anti-discrimination laws when it comes to religion. That's not exactly what the statutes and the cases that I looked at say, but I think it's a reasonable conclusion.
I'll give you my best guess based on my experience. The Supreme Court would likely say that the exceptions in those statutes mean that the institutions are exempt when it comes to any claim of religious discrimination, regardless of who it is for or against. That would be consistent with one of the important maxims of statutory interpretation: a court should not interpret a statute in a way that requires an absurd result.
The exceptions allow BYU-I to hire only LDS members. It is free to determine the qualifications that applicants must meet to become and remain an employee. It is also free to hire non-members and to prefer hiring LDS members over non-members. Both LDS and non-LDS faculty are required to live by the same behavioral code. However, requiring non-members to comply with the verification method required of members (which includes temple recommends) would preclude the school from exercising its right to hire both members and non-members and to determine how to verify that LDS applicants meet the requirements. This would be an absurd result because the clear intent in both provisions is to give more hiring discretion to religious organizations.
The same result could be reached by saying that the differential methods used to verify eligibility for members isn't a practice that discriminates against them -- especially given that the schools exercise a preference of hiring members over non-members.
As I said, that's just based on my observation over the years of how courts decide cases. But it's also based on a trend in Supreme Court opinions the address the employment of teachers at religious schools. In contrast to statutory exceptions in anti-discrimination laws, this issue involves a judge-created exception to anti-discrimination laws.
When it comes to the internal governance of religious organizations, there is a set of issues that are non-justiciable. Certain questions can be answered only by the institutions themselves and not by the courts. I'm going quote from Justice Thomas's concurrence in the selfsame case I quoted from above:
This Court usually goes to great lengths to avoid governmental “entanglement” with religion, particularly in its Establishment Clause cases. See, e.g., Lemon v. Kurtzman, 403 U. S. 602, 613 (1971).2 For example, the Court has held that a public school became impermissibly “entangle[d]” with religion by simply permitting students to say a prayer before football games and overseeing a class election for whom would de- liver the prayer. Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 305–307 (2000). And, in Locke v. Davey, 540 U. S. 712 (2004), the Court concluded that it would violate States’ “antiestablishment interests” if tax dollars even in- directly supported the education of ministers, id., at 722.
At the core of the "entanglement" issue is internal church governance. For example, U.S. courts simply will not involve themselves in disputes over who is control of a religious organization or who owns the assets of a religious organization. If the organization has a set of governance rules that someone claims is being violated, that's for the organization to resolve. For example, the LDS church can discriminate as much as it wants on any basis it chooses when it appoints people to leadership positions.
In contrast to the LDS church, many protestant congregations have boards of directors or a similar governance body that hires clergy. This can create an employer-employee relationship between the congregation and the clergy. And, people being who they are, disputes over hiring and firing of clergy resulted in claims of violation on anti-discrimination laws. This led to the judge created exception to anti-discrimination employment laws called the "ministerial exception." A minster cannot sue the church for employment discrimination. The basis for the exception is the First Amendment's Establishment Clause. If the state tells a church that it can't fire its pastor, it's in the wrong side of the wall.
This "ministerial exception" was universally recognized by the various Circuit Courts of Appeal for a number of years. However, it applied only to "ministers." And, as consistently applied by the appellate courts, lay teachers at a religious school were not ministers -- they were protected by anti-discrimination laws (other than religious discrimination). To be crystal clear: if the exception applies to an employee of a religious organization, the organization is completely exempt from employment anti-discrimination laws.
The first "ministerial exception" case to be decided by the Supreme Court involved a 4th grade teacher at a Lutheran School.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). The Court held that the teacher's employment fell within the exception. After holding that the exception was no limited to the head of a religious organization, the Court expanded the exception's scope to include certain minister-adjacent positions:
Nevertheless, this Court explained that the exception applies to someone with a leadership role “distinct from that of most of [the organization’s] members,” someone in whom “[t]he members of a religious group put their faith,” or someone who “personif[ies]” the organization’s “beliefs” and “guides it on its way.”
From the Guadeloupe dissent. (I'm going to continue to quote from the various Guadeloupe opinions, as together they cover all the issues quite nicely.)
In reaching it's decision, the court relied on four "circumstances:" (1) she was a "called teacher" and not a "lay teacher" and her title included the word "minister;" (2) she had received substantial religious training followed by a religious commission to teach; (3) She had held herself out as a minister by accept a "call" and claiming tax deductions available to ministers; and (4) "[Her] job duties reflected a role in conveying the Church’s message and carrying out its mission."
From the Guadeloupe majority
There were two concurring opinions, by Justices Thomas and Alito. (Justice Kagan joined in Alito's concurrence).
Two years ago, the Supreme Court applied the exception to two
lay teachers at Catholic Elementary Schools. One was terminated after she became pregnant. The other, who was in her '60s, was terminated and replaced with a younger teacher. Both sued their former employers for employment discrimination. This is the
Guadeloupe case.
Justice Alito wrote the majority opinion, which essentially adopted his concurring opinion in the earlier case. It held that the three "circumstances" on which it based its prior opinion were not necessary elements or factors. Indeed, they need not apply at all for an employee position to fall within the exception. His opinion adopts a purely functional test, rendering things like educational qualifications, identification of the position as "called" or "lay," and taking mistrial tax deductions essentially irrelevant. Only the forth factor in the previous case was relevant:
job duties reflected a role in conveying the Church’s message and carrying out its mission.
Stop and think about that as applied to any teacher at a religious school.
After stating "Religious education is vital to many faiths practiced in the United States. This point is stressed by briefs filed in support of OLG and St. James by groups affiliated with awide array of faith traditions," Justice Alito surveyed the role of education through the lens of several faith traditions, including one we'll all recognize:
The Church of Jesus Christ of Latter-day Saints has a long tradition of religious education, with roots in revelations given to Joseph Smith. See Doctrine and Covenants of the Church of Jesus Christ of Latter-day Saints §93:36 (2013). “The Church Board of Education has established elementary, middle, or secondary schools in which both secular and religious instruction is offered.”
Now, read the last paragraph in conjunction with what Justice Alito says a bit later in the opinion:
In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.
You can see the movement from a narrow exception that applied to hired clergy to lay instructors at religious schools that the church views as carrying out its mission. Not only that, it is the churches, not judges, who know the most about the church's mission and how teachers relate to it. Where this heads is not just giving the churches a broader exemption from anti-discrimination laws in employment, but deferring to them in deciding which employees qualify for the exemption and which do not.
Justice Thomas, who is more plain spoken, makes that clear in his concurrence. He classifies the decision as to which employees qualify as "ministers' as a theological question that should be left up to the religious employer. And the majority opinion is almost, but just not quite, there. Yet.
So, that's the broader legal context that surrounds your question. Let's look at what BYU-I says about its role in the mission of the LDS church:
At a university that is part of The Church of Jesus Christ of Latter-day Saints, our instructors have the unique opportunity to offer testimony and gospel perspective while sharing expertise in their discipline. Many who teach for BYU-Idaho and BYU-Pathway Worldwide do so out of a desire to give back and bless the lives of future generations. Teaching online is ideal for those who value a flexible work/life schedule. Instructors have the flexibility to schedule those hours around their other obligations.
The University isn't just owned and operated by the Church. It is "part of" the church. Teachers have the opportunity to "offer testimony and gospel perspective while sharing expertise in their discipline."
Online instructors represent The Church of Jesus Christ of Latter-day Saints and the mission of BYU-Idaho and BYU-Pathway Worldwide. They guide students to become capable disciple leaders in their personal and professional lives.
https://www.byui.edu/online/teach-online-for-byu-idaho
And on the pages for individual positions: "Online instructors employed by the LLC are expected to support the missions, values, and standards of the institutions to which they are assigned to teach."
https://employment.byui.net/postings/17463
And the mission of BYU-Idaho is:
Brigham Young University-Idaho was founded and is supported and guided by The Church of Jesus Christ of Latter-day Saints. Its mission is to develop disciples of Jesus Christ who are leaders in their homes, the Church, and their communities.
https://www.byui.edu/about/byu-idaho-mission-statement
Now, take a look at the Guadeloupe majority's broadening of who qualifies for the exemption and trend toward deferring to the religious organization in determining whether anti-discrimination employment laws apply at all to any given position. Look again at how the primary mission of an LDS University is described as theological with education as a vehicle. And make up your own mind about what this Supreme Court, which is firmly committed to the expansion of rights of religious employers, would do if an applicant for a position as an instructor at BYU-I sued because of the ecclesiastical requirements she must meet as opposed to non-member who could not possibly meet those requirement without becoming a temple-worth member.
That's all I got.
