Mrs. Billie B. McClure


Mrs. Billie B. McClure. You probably do not know her name. She was the first person to have her gender discrimination lawsuit, against the Salvation Army, dismissed in 1972 because she was a minister. Her lawyer, William R. King, told me recently that he does not think of her case as a ministerial exception case—or a “minex” case, as I call them, having read so many. The minex is fifty years old now, but then it was brand new, and did not even seem to him a major part of the courts’ decisions.

McClure was going to be evicted from her residence in the transient women’s quarters that weekend by the Salvation Army. She was an army officer with three children. She made complaints about her male colleagues, for example, who had a house among their benefits while she did not. She sued under the fairly new Civil Rights Act of 1964 for gender discrimination. King, who was new to employment discrimination lawsuits at that time, filed a Civil Rights Act complaint in her name and sought a preliminary injunction against removal from her quarters.

What is the Minex?

Ministers’ cases do not get to trial because, as the Supreme Court clarified in its first minex case in 2012, the ministerial exception is an affirmative defense. If you are a minister, your case is dismissed. That means your case never gets a jury’s or a judge’s decision about what happened to you based on the facts. Recently the Court made it even easier to be recognized as a minister.

My history of writing about the minex made me curious about all the ministers who had lost their cases. What should we know about them that we never learned in court?

In one way, I have started too late. Billie Marie Barrett McClure died on September 20, 2019, at the age of 88. Her obituary says she worked with the Salvation Army from 1956-1965, became an ordained minister with them in 1967, and “was active in ministry until 1971.”

On March 8, 1971, her lawsuit against the Salvation Army under Title VII of the Civil Rights Act of 1964 was dismissed from the United States District Court, N.D. Georgia, Atlanta Division. She appealed to the Fifth Circuit, where she lost again in 1972. The Supreme Court then denied review. Her case, at the beginning of the 1970s, was when the Civil Rights Act was still new.

McClure’s Case

As in many minex cases, the courts do not say much about McClure’s legal claims, while telling us a lot more about the Salvation Army. The case says that, like all male Salvation Army members officers, McClure as an officer was one of the organization’s ministers. The best summary of her claims is in the Fifth Circuit’s decision, which states,

More specifically, she alleged that she had received less salary and fewer benefits than that accorded similarly situated male officers, also that she had been discharged because of her complaints to her superiors and the Equal Employment Opportunity Commission [EEOC] with regard to these practices.

She sought reinstatement, an injunction against further discriminatory practices, and a judgment for the alleged deficiency in compensation paid to her as compared to male Salvation Army officers whose responsibilities were equivalent to those she performed.

McClure thought Title VII covered her sex discrimination claim. We have learned since then that women often bring cases complaining about their pay and benefits against both secular and religious organizations.

Why Did She Lose?

The district court ruled nonetheless that “any allowance, salary, or funds received by the Officers, their work assignments or their places of assignment, among any other grievances Mrs. McClure may have, are matters of religious activity into which the Court may not inquire under prior decisions and § 2000e-1,” the section that did not allow religions to be sued for religious discrimination. McClure v. Salvation Army, 323 F. Supp. 1100, 1106–07 (N.D. Ga. 1971), aff’d, 460 F.2d 553 (5th Cir. 1972). That was so because “Mrs. McClure performed some functions which only an officer (ordained member) might perform.” Id. Thus any possible gender discrimination was overruled by the presence of religion.

The Fifth Circuit affirmed, although it used different reasoning from the district court. The judges acknowledged McClure’s losing argument that “the Army is not exempt from the prohibitions of Title VII and is therefore liable for discriminating against Mrs. McClure on the basis of sex with respect to compensation, terms, conditions or privileges of employment.” McClure v. Salvation Army, 460 F.2d 553, 556 (5th Cir. 1972). And they also recognized that the “language and the legislative history of § 702 compel the conclusion that Congress did not intend that a religious organization be exempted from liability for discriminating against its employees on the basis of race, color, sex or national origin with respect to their compensation, terms, conditions or privileges of employment.” McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972). In other words, Congress wanted religious organizations to be sued for racial, gender, and national origin discrimination, but not for religious discrimination. That, of course, was what McClure was doing, bringing a sex discrimination claim against the Salvation Army, which ordained both men and women. She wanted equal treatment with the men.

King said throughout this case, Mrs. McClure was living in the Army’s transient women’s quarters, while the male ministers with children had homes, housekeepers, and better housing.

So why did Mrs. McClure lose?

The First Amendment

Because the judges turned from the statute to the First Amendment, saying they had to examine the constitutional issue involved.

The opinion was written by James Plemon Coleman, named to the court in 1965 by Lyndon Johnson. He was joined by John Minor Wisdom, named by Eisenhower to the court in 1957, and John Milton Bryan Simpson, who was also nominated by Johnson in 1966. Two Democratic nominees, and a Republican nominee remembered for his commitment to civil rights and racial equality, produced this opinion.

The judges agreed with McClure that the statute allowed her lawsuit, including its claim about assignments, duties, and salaries. “However, it would be useless to argue that these decisions are not matters of church administration and government and thus, purely of ecclesiastical cognizance.” Id. at 560 (emphasis added). Because they were ecclesiastical matters, the court would not review them. As the court explained it,

an investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty, which involve a person at the heart of any religious organization, could only produce by its coercive effect the very opposite of that separation of church and State contemplated by the First Amendment. As was said by Justice Clark in School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), “the breach of neutrality that is today a trickling stream may all too soon become a raging torrent * * *”.

We find that the application of the provisions of Title VII to the employment relationship existing between The Salvation Army and Mrs. McClure, a church and its minister would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment. Yet, “if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (concurring opinion of Mr. Justice Brandeis). We therefore hold that Congress did not intend, through the nonspecific wording of the applicable provisions of Title VII, to regulate the employment relationship between church and minister. Id. at 560-61 (emphasis added).

I almost always focus on the last words about the relationship between church and minister when I read this case. But even now, almost fifty years later, Mr. King remembers Ashwander. He raised the case by name when I was speaking with him.

Those three judges, whom we might think of as liberal today, safely stayed with Ashwander to protect themselves from any constitutional violation.

The Supreme Court?

King and the late New York lawyer, Marvin M. Karpatkin, asked the U.S. Supreme Court to review the decision. In their petition for certiorari, they wrote: “The critical question in this case is whether the First Amendment gives a license to churches and other religious organizations to engage in racial, sexual, or national origin discrimination against their employees.” (p. 14)

The petition explained that the answer was no. The petition was quite clear that Title VII had exempted religions from lawsuits for religious discrimination, but that the statute quite clearly allows lawsuits for racial, sexual or national origin discrimination. The petition pointed out that in the Salvation Army, “Army women are the equals of men.” (p. 7). Thus there was no religious principle at stake in the sex discrimination lawsuit of McClure, because the Army taught sexual equality. The law allows religious organizations to be sued for non-religious conduct. They cited Justice Felix Frankfurter saying religious freedom “does not and cannot furnish the adherents of religious creeds entire insulation from every civil obligation.” McGowan v. Maryland, 366 U.S. 420, 461-62) (concurring opinion).

They also shrewdly questioned broad definitions of who is a minister:

Is every Jehovah’s Witness employed in the Brooklyn, New York printing plant of the Watchtower Bible and Tract Society to be subject to racial and sexual discrimination because of ‘ministerial’ status? (p. 21)

The lawyers complained that the lower courts had swept away legislation that was supposed to protect thousands of employees from discrimination. “[I]t is no service to the cause of religious liberty to allow its invocation to undermine the strong federal policy of equal employment opportunity for women.” (p. 19). Instead of relying on Ashwander, the petition asked the Court to grant certiorari and rule the statute constitutional in protecting employees like McClure.

The petition also claimed that the lower courts had taken away McClure’s ability to sue for retaliation when she was fired after she complained of discrimination to the EEOC.

McClure’s cert. petition to the Supreme Court was “denied for the reason that the petition was not timely filed.” McClure v. Salvation Army, 409 U.S. 896 (1972).

Imagine if the Supreme Court had taken the case in 1972, instead of waiting until 2012 for Hosanna-Tabor. What would have happened? The Court was then composed of Chief Justice Warren Burger, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell, and William Rehnquist. What would they have said?

Maybe they would have reasoned as the Fifth Circuit did.

But might they have said that the Civil Rights Act was constitutionally drafted as it was? Of course it allowed religions to discriminate on the basis of religion. Thus the Salvation Army could favor members over non-members when it made its employment decisions. But Congress did not want to liberate religious organizations to discriminate against women. In an organization that admitted both men and women to ministry, there was no legal reason to pay the women less than the men. Or to give the men better housing and housekeeping.

Imagine if the Court had said that payment, benefit, and housing had nothing to do with religion because the Salvation Army had agreed to ordain both men and women. Instead, as workers, both male and female workers were entitled to gender equality, as both the law and the religion had proposed. What would have happened to the next fifty years of “ministerial exception” cases?

Maybe they would have been different.

I thank William King for speaking with me and remember Billie B. McClure for her early minex lawsuit. I wish it had turned out differently!

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