That was the question asked repeatedly by evangelical organizations as the U.S. Ninth Circuit Court of Appeals weighed an employment discrimination lawsuit against World Vision, one of the nation's largest faith-based charitable organizations.
What if the Ninth Circuit—known for sometimes producing liberal panels and results—ruled against World Vision's practice of hiring only employees who conform to the organization's statement of orthodox Christian faith?
But on August 23, World Vision and advocates such as Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance, claimed victory.
"In a way, I guess you could say it's like the dog that didn't bark," Carlson-Thies said after a 2-1 ruling by the Ninth Circuit in World Vision's favor.
Still, Carlson-Thies and legal experts on church-state issues said the decision—rejecting three fired employees' argument that World Vision is a humanitarian organization, not a religious one—represented a significant victory for religious organizations.
"Our Christian faith has been the foundation of our work since the organization was established in 1950, and our hiring policy is vital to the integrity of our mission to serve the poor as followers of Jesus Christ," World Vision said in a statement celebrating the ruling.
In most cases, Title VII of the 1964 Civil Rights Act prohibits private employers from hiring and firing based on religious beliefs. But a 1972 congressional amendment established that churches and religious associations could use faith-based criteria in hiring.
The Ninth Circuit ruling affirmed that an organization can fulfill a religious purpose without confining itself to worship-like activities, Carlson-Thies said. "An organization can be humanitarian and religious at the same time," he said of the message sent.
As Ninth Circuit Judge Diarmuid F. O'Scannlain put it in his majority opinion, "World Vision is a nonprofit organization whose humanitarian relief efforts flow from a profound sense of religious mission."
While concurring with the ruling, Ninth Circuit Judge Andrew J. Kleinfeld gave slightly different reasoning. He proposed applying an economic test and requiring that a self-proclaimed religious entity "not engage primarily or substantially in the exchange of goods or services beyond nominal amounts." O'Scannlain cited World Vision's nonprofit status as sufficient evidence.
Carlson-Thies called the notion of religious organizations as purely nonprofit entities "a troubling presumption." While the Ninth Circuit opinions reflected increasingly strong sentiment in that regard nationwide, he said, Carlson-Thies cited examples of for-profit broadcasters, camps, and publishers with religious missions.
The World Vision employees were fired in November 2006 after a corporate investigation determined that they did not believe that Jesus Christ is fully God and a member of the Trinity.
The dissenting Ninth Circuit judge, Marsha S. Berzon, maintained that Congress intended a narrow scope when it created the religious hiring exemption.
"My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles," Berzon wrote. "But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated … toward a society in which employers could self-declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees."