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Religious For-Profits: Oxymoron or Orthodox Obedience?

By David Hyams, Esq. and Robert Showers, Esq.

Whatever you do, work at it with all your heart, as working for the Lord, not for men, since you know that you will receive an inheritance from the Lord as a reward.

 It is the Lord Christ you are serving.  Col. 3:23-24

 

Our work in the marketplace is deeply spiritual. From the earliest verses of Genesis, we see that to be fully human is to be a being who works. (See Genesis 1-2.) Indeed, scripture is replete with instances of God engaging people in the middle of their work day. (See, e.g., Moses (Exodus 3:1), Elisha (1 Kings 19:19), shepherds (Luke 2:8-20), Peter, James, and John (Luke 5:9-11), Levi (Mark 2:14), Pontius Pilate (John 18:28-32), Paul (Acts 9:1-8)).

Many Christian business owners have embraced the fact that God cares about how we spend our lives Monday through Saturday, and desire to more intentionally integrate their faith with how they run their businesses. But how do theological concepts such as vocation and redemption translate into the corporate world? How can a Christian business owner of conviction faithfully live out his or her calling to be an agent of reconciliation without fear of being sued? We’ve all heard about the florists, wedding photographers, and bakers who’ve been pilloried in the media and dragged through ruinous litigation for taking a stand for their convictions. Does such a fate await all who seek to “be a light in the marketplace?”

A growing chorus of books, seminars, sermons, conferences, articles, forums, cohorts, and institutes are dedicated to the notion that, far from being separate from our life of faith, our work is integral to it. While no legal strategy will perfectly insulate one from the promised-trials of life in a fallen world (see John 16:33), a Christian business-owner can take a few proactive steps to more robustly fulfill God’s desire for business while taking advantage of available legal protections.

In Burwell v. Hobby Lobby, Inc., the U.S. Supreme Court firmly held that a company can, without contradiction, simultaneously operate as a for-profit corporation and exercise religious beliefs worthy of protection from burdensome governmental regulations. 134 S.Ct. 2751, 2771 (2014). Title VII, the federal statute that prohibits workplace discrimination, exempts “religious corporations” from its definition of “employer.” 42 U.S.C. § 2000e-1(a). Some state public accommodations statutes also may exempt places that are “principally used for religious purposes.” See, e.g., Colo. Rev. Stat. § 24-34-60. Thus, the law contemplates the possibility of a religious, for-profit business, and provides certain exemptions and protections for such organizations.

Hobby Lobby was able to establish that its religious beliefs were sincerely held—a critical factor in its victory—based on its particular business practices. In light of what the Supreme Court deemed significant in that case, Christian business owners would do well to consider implementing the following.

  • Infuse theological language into all organizational documents. The operating agreement or bylaws, mission/vision/purpose statement(s), employee handbooks, and policies and procedures manuals should all clearly communicate the theological nature of the organization and its purpose, replete with scripture citations.
  • The day-to-day operations should also be defined in a thoroughly religious manner. If the religious nature of a company is litigated, any concessions that there are “secular” aspects of the business could come back to haunt the company.
  • Do not allow the company to become publicly-traded, but keep it closely held, ideally by family members, friends, and colleagues who share the same convictions as discussed in 2 Cor. 6:14 et seq. and elsewhere is the Bible.
  • If possible, affiliate the business with a church or religious ministry, and allow the church or ministry to somehow participate in company management (e.g., corporate chaplains, board input, etc.).
  • Take concrete institutional steps in light of religious beliefs, e.g., closing on Sundays, pro bono work etc.
  • Hold the company out to the public as faith-based. Signage, websites, office décor, and marketing materials that communicate the values of the company can all contribute to establishing the religious nature of the company and the sincerity of its beliefs.
  • Are your clients and customers mostly faith based so that you may have a bona fide occupational qualifications (BFOQ) for some or all of your workers in which the customer/client expect faith-based service?
  • Finally, give charitably through the business. Charitable donations to churches or non-profits aligned with the values of the business are tangible demonstrations that the company really believes what it says.

Of course, fully implementing all of the above is no guaranty of victory in court.   In EEOC v. Townley Engineering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988), the employer incorporated Christianity into numerous aspects of its business, e.g., it “enclose[d] Gospel tracts in its outgoing mail, print[ed] Bible verses on its commercial documents (such as invoices and purchase orders), financially support[ed] churches, missionaries, a prison ministry, and Christian radio broadcasts, and . . . conduct[ed] a weekly devotional service.” Id. at 619.  However, as a for-profit company, it conceded that it produced a secular product (mining equipment), it was not affiliated with or supported by a church, and “[i]ts articles of incorporation (and bylaws) do not mention any religious purpose.”  Id.  This was sufficient for the Ninth Circuit Court of Appeals to find the employer did not qualify as a “religious corporation” exempt from Title VII, and was therefore violated Title VII by requiring employees attend devotional services.  The outcome might have been the same regardless, but by articulating the factors it considered, the court provided a helpful framework for Christian business owners.

However, one should not view these measures as a gimmick for circumventing anti-discrimination laws. Companies that have attempted to be thoroughly religious have run afoul where they made employment benefits contingent upon participating in the company’s religious activities, e.g., attending a chapel service or Bible study. Nonetheless, there are substantial freedoms that are available to Christian business owners, freedoms that can be buttressed through strategic business practices.

Cultivating a business environment where humans and the gospel can flourish is not only possible, but is in line with God’s heart for work and the nation’s laws for the workplace. This is not a mere proof texting exercise. It could be that one “good” case will firmly establish the rights of Christ-centered businessmen and women to easily operate their businesses legally and according to Biblical principles.

Crafting a thoroughly theological corporate architecture requires thoughtful analysis and guidance by competent legal counsel who understand not only the relevant local, state, and federal laws, but also “get” the religious mission of business. We at Simms Showers do such religious business audits and render such legal advice for businesses run by Christians across the nation.  Please let us know if we can help you and your business faithfully “steward God’s varied grace.” (1 Peter 4:10) and fulfill Psalm 1 in seeking the counsel of the godly.

And whatever you do in word or deed, do it all in the name of the Lord Jesus, giving thanks to God the Father through him.  Col. 3:17

 

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum.  Please contact David Hyams at dmhyams@simmsshowerslaw.com and Robert Showers at hrs@simmsshowerslaw.com or 703.771.4671 for legal advice that will meet your specific needs. 

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