Employment at (God’s) Will: The Constitutionality of Antidiscrimination Exemptions in Charitable Choice Legislation Laura B. Mutterperl*

I. Introduction If a religious entity contracts with the federal government to provide social welfare services, may it make employment decisions on the basis of religion? Consider the employment relationship between Alicia Pedreira and the Kentucky Baptist Home for Children (KBHC). KBHC is a state-licensed child-care and child-placement agency and the largest private residential child-care provider in Kentucky.1 According to its mission statement, KBHC “provides care and hope for hurting families and children through Christ-centered ministries . . . [and is] committed to presenting a clear message of Christian values.”2 KBHC requires employees to “exhibit values in their professional conduct and personal lifestyles that are consistent with the Christian mission and purpose of the institution.”3 In March 1998, Pedreira began work as a family specialist. Her job responsibilities included teaching independent living skills, counseling, and supervising adolescent youth in a transitional living cottage. She was popular among her charges, and in her six-month evaluation her direct supervisor “described her as a good clinician and a ‘wonderful person to supervise,’ who was ‘very honest and hard working’ and of the ‘highest moral and ethical character.’”4 In August of the same year, a photographer displayed a picture at the Kentucky State Fair of Pedreira and her life partner at an AIDS Walk fundraiser. Because of the photograph, members of the KBHC management became aware that Pedreira was a lesbian. KBHC ªred her in October.

* A.B., Harvard University, 1997; J.D., Harvard Law School, 2002. I am grateful to Professors Martha Minow and Christine Jolls, family, and friends for their comments on earlier drafts of this Note. I would like to thank David Saperstein, Marc Stern, Brent Walker, and Melissa Rogers for their insights and inspirational work. I also would like to thank the editors of the Harvard Civil Rights-Civil Liberties Law Review. 1 Complaint of Alicia Pedreira, ªled April 17, 2000, at 4, in Pedreira v. Ky. Baptist Homes for Children, Inc., 186 F. Supp. 2d 757 (W.D. Ky. 2001) (No. Civ.A.3:00CV-210S), http://www.aclu.org/court/pedreira.pdf. 2 Id. at 6. 3 Id. 4 Id. at 7.

390

Harvard Civil Rights-Civil Liberties Law Review

[Vol. 37

KBHC’s public statements suggest that Pedreira was ªred because her lifestyle contravened KBHC’s religious tenets and because she was a lesbian.5 In its response to the Title VII religious discrimination lawsuit subsequently ªled by Pedreira,6 KBHC insisted that it had ªred her because of her sexual orientation alone.7 Whether KBHC used Pedreira’s sexual orientation as a pretext to hide an illegal rationale was crucial to whether KBHC’s action violated Title VII of the Civil Rights Act of 1964.8 The core federal legislation prohibiting discrimination in the workplace, Title VII prohibits discrimination on the basis of religion but not on the basis of sexual orientation. The federal district court resolved the dispute quickly by determining that KBHC had ªred Pedreira on the permissible basis of sexual orientation.9 If instead the court had decided that KBHC ªred Pedreira on religious grounds, resolution of the Title VII matter would have been more complex. The ªrst level of additional complexity would have been statutory in nature: if KBHC qualiªes as a religious organization, an explicit exemption in Title VII allows it to discriminate on religious grounds.10 KBHC’s founding by the Baptist community in Louisville, its mission statement, and its historic association with the Kentucky Baptist Convention suggest that it would have qualiªed for this exemption.11 The second level of additional complexity may explain why the district court did not rely on the Title VII exemption: KBHC provides social services under state contracts that contain a mix of federal and state funds.12 Moreover,