By Ernest A. Canning on 1/28/2013, 3:47pm PT  

A federal lawsuit filed by the Calvary Chapel of Thousand Oaks seeks to test the legal line drawn by California regarding the boundaries of church and state.

Under the Golden State's Fair Employment and Housing Act (FEHA), churches are permitted to discriminate in hiring practices based on their religious beliefs only within the confines of non-profit institutions --- a line that recognizes that government has no role in a religious institution's selection of a priest, minister, rabbi or imam. Thus, for example, laws banning discrimination on the basis of gender do not prevent the Catholic Church from limiting the priesthood to adult males.

But the Calvary Chapel now seeks to obliterate the line drawn by the state FEHA law. It purchased the Little Oaks School of Thousand Oaks, a for-profit, previously non-sectarian private school and subsequently fired two teachers who refused to make statements of faith and obtain references from a pastor. The teachers' objections, one of whom had been the director of Little Oaks' preschool, were on religious freedom grounds.

Facing a likely legal challenge under state law, the church filed a lawsuit in U.S. District Court against the teachers and their attorneys as a preemptive strike in hopes of preventing the teachers from seeking redress in state court under FEHA.

Both parties in the suit are using "religious freedom" as the basis of their argument. The church seeks "religious freedom" in its discriminatory hiring practices. The teachers seek freedom from religion in their right to maintain their jobs...

Richard Kahdeman, an attorney representing the church and school, is quoted by the Ventura County Star, charging: "The question is ultimately, do the nondiscrimination rights of the teachers under state law trump the religious rights of the school under federal law?"

The L.A. firm representing the teachers point out in response that the state FEHA law has been upheld hundreds of times in both state and federal court. In a statement, they characterize the school's lawsuit as an attempt to "avoid the consequences of their illegal and discriminatory practices."

"We're a Christian school," Rev. Rob McCoy, pastor of the church and headmaster of the school, told the VC Star. "We were coming to the point where we were establishing a Christian curriculum. We wanted to make sure teachers subscribed to that faith."

But the teachers' attorney said the pair "did not believe they should be required to obtain a pastoral reference in order to continue their employment." They also "expressed surprise that the school contends California law is unconstitutional yet did not include the state as a defendant."

The lawsuit reflects the latest attempt by a religious group to break down the long-standing firewall between church and state. If organized religion is permitted to purchase private, for-profit businesses (only non-profit institutions are allowed discriminatory hiring practices under the state law) and then discriminates on the basis of their religious beliefs, what's to stop individual owners of businesses from discriminating on the basis of their own personal religious beliefs? If the Ku Klux Klan, which professes to be a Christian organization, gains ownership of a private business, should they be permitted to discriminate in employment on the basis of race on the grounds that their religion calls for "whites only?"

And what about the religious freedom of the fired teachers? The First Amendment's "freedom of religion" also entails "freedom from religion." Courts have found that people have a right to believe in a religion of their choice or to not believe at all. In its profit/non-profit distinction, it seems California attempted to draw a reasonable line between church and state, one that, if Cavalry Chapel is successful in its suit, could ultimately be breached.

The chapel's Rev. McCoy agrees that the results of the suit could have major national implications. He believes it is his church, not the teachers, who are being discriminated against. If the suit fails, he charges, "any for-profit company that is owned by a religious organization will not have the religious freedom to exercise their beliefs."

McCoy's contention, however, begs the question as to whether the imposition of his religious beliefs, in a for-profit setting, unlawfully intrudes upon the rights of employees (teachers, in this case) to believe, or not believe, as they see fit without a discriminatory infringement upon their liberties as the Calvary Chapel of Thousand Oaks is now asking the U.S. Government to approve.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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