There are a number of problems with Section 215-31(H)(1) of the proposed ordinance. These problems are so endemic that this section should be removed from the ordinance in its entirety. First, the language of this section creates a preference for some religions over others, which is a violation of the Establishment Clause of the First Amendment to the United States Constitution. As written, Section 215-31(H)(1) exempts from the ordinance those religious organizations that ?aver in writing to the Commission that gender, sexual orientation, or gender identity constitute grounds for employment decisions under the fundamental tenets of the religion in question.? Accordingly, the ordinance would allow a religious organization that considers gender, sexual orientation, or gender identity to be grounds for employment decisions based on its tenets to discriminate in its hiring on any basis, including race and disability. Conversely, a religious organization that does not consider gender, sexual orientation, or gender identity to be grounds for employment decisions would not be permitted to discriminate in its hiring on any of the protected categories identified in the ordinance, including race, color, religion,national origin or ancestry, sex, gender identity or expression, sexual orientation, disability, marital status, familial status, and age. This language provides a benefit to some religions ? those whose beliefs require that they consider gender, sexual orientation, or gender identity in making employment decisions ? that is not provided to religions whose beliefs do not require that they base employment decisions on such criteria by exempting the former from the ordinance?s nondiscrimination provisions while requiring the latter to abide by them. Such governmental preference for some religious beliefs over others is a clear violation of the Establishment Clause. See, e.g., Bd. of Educ. v. Grumet, 512 U.S. 687, 703 (1994) (?principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion?).
Second, because the ordinance prohibits religious organizations that do not consider gender, sexual orientation, or gender identity to be grounds for employment decisions from discriminating in hiring on any basis, those organizations would be precluded from considering religion in their hiring decisions, even when they are hiring clergy members. That result would plainly violate those religious organizations? rights under the Establishment and Free Exercise Clauses and the Pennsylvania Religious Freedom Protection Act, 71 P.S. ? 2401 et seq., to choose their clerical leadership.
Third, Section 215-31(H)(1)?s requirement that religious organizations ?prove? their religious nature to the Commission in order to obtain the benefit of being exempted from the ordinance?s nondiscrimination requirements likely violates the Establishment Clause by creating excessive entanglement between the Commission and religious organizations. As the U.S. Supreme Court has recognized, ?determining whether an activity is religious or secular requires a searching case-by-case analysis,? which ?results in considerable ongoing government entanglement in religious affairs.? Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 343 (1987).
Finally, allowing those religious organizations whose beliefs require them to use gender, sexual, orientation, or gender identity as grounds for employment decisions to discriminate on any basis even if they receive county funds, but prohibiting fraternal, charitable, or sectarian organizations that receive county funds from discriminating on any of the bases identified in the ordinance violates the Establishment Clause because it provides a benefit to particular religious organizations that is not provided to similarly situated non-religious organizations, namely the right to receive public funds without complying with the nondiscrimination ordinance. See Grumet, 512 U.S. at 703.