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An Unusual Religious Accommodation / Religious Discrimination Issue:

From the Atlanta Journal-Constitution:

A federal bankruptcy judge on Thursday ruled that the Hindu Temple of Georgia must allow creditors onto its property to inventory its assets and must not spend its income.

Attorneys for the temple, which filed for Chapter 11 bankruptcy earlier this month to avoid foreclosure of its Norcross facility, had sought to block creditors from photographing or entering its holy places. They said any non-Hindus were barred from entering the temple while the priests are undergoing a 216-day period of spiritual cleansing.

However, Judge James E. Massey found a compromise: whoever is sent by creditors to photograph and inventory the rooms must be a Hindu.

Would it be legal for a creditor to assign this particular job task to an employee based on the person's religion? Would that turn on whether there's some tangible benefit involved — such as extra overtime pay — rather than just a one-time ask assignment? Would the classification be permissible on the grounds that in this case religion is an acceptable bona fide occupational qualification under Title VII? (For more on BFOQs, though in the context of sex classifications, see here.) Relatedly, what if there's a controversy about whether the selected person really qualifies as a Hindu?

Or would the creditor likely avoid all this by just using an independent contractor? To my knowledge, religious discrimination in selecting independent contractors is generally not illegal under federal law, though I can't speak about Georgia law on this.

More broadly, whether or not it's legal for creditors to do this on their own, there's also the question whether it's constitutional for a government agent — the judge — to order it. Is it unconstitutional discrimination based on a person's religion, or an acceptable accommodation of the temple's religious practice?

I'm inclined to say that no-one will sue over this; but it still strikes me as an interesting scenario. Thanks to Religion Clause for the pointer.

Michigan Wolverine (mail):
There are probably a sufficient number of Hindu cameramen in the Atlanta area to meet this requirement. But what if they had been Summum or some other some other more obscure cult? This seems problematic.
9.23.2009 10:31am
Steve:
I think the entire principle of reasonable accommodation is that if there's a way to work through one of these situations without imposing an unreasonable burden on anyone, then just do it and don't make a federal case out of it. And indeed, common sense seems to have carried the day here.

I'm glad the judge was able to reach this decision without obsessing over what might happen in the vast array of hypothetical cases where no reasonable accommodation could be made. In this case, a reasonable solution is at hand, so just do it.
9.23.2009 10:34am
martinned (mail) (www):
American law could do with having more common sense rulings like this one.
9.23.2009 10:35am
KenB (mail):
Count me with Steve. I would like to think the creditor is covered by complying with the judge's order.
9.23.2009 10:36am
Matt P (mail):
<blockquote>
I'm inclined to say that no-one will sue over this
</blockquote>

Stop it, you're killing me.... no one will sue?! You are a funny guy Eugene.... no one sue -- where do you come up with this stuff? Brilliant. Funniest statement I've read on the internet in months.

Not sue -- hilarious. What's next, saying that the commerce clause doesn't give the federal government the right to regulate this case?
9.23.2009 10:55am
martinned (mail) (www):

Not sue -- hilarious. What's next, saying that the commerce clause doesn't give the federal government the right to regulate this case?

I'm assuming this was meant to be ironic, but just to be sure:


The Congress shall have Power (...) To establish (...) uniform Laws on the subject of Bankruptcies throughout the United States;
9.23.2009 11:00am
Greek Geek:
Filing their bankruptcy claim seems to me to have stripped them of any right to refuse someone to come in from the creditor. Prudence warrants sending a Hindu if readily accessible, because there is no reason to unnecessarily pick a fight.
9.23.2009 11:00am
Skyler (mail) (www):
Hmm, constitutional issues aside, I wonder whether I would agree to that if I were the creditor. Is it possible that any Hindu chosen would breach fiduciary duty in order to protect his religion? I suspect not, but I would think twice before deciding not to object to that order.

On the other hand, if having non-Hindus in the property despoils it, then would that decrease its value as a Hindu temple? Does it have other value besides as a Hindu temple? The architecture and decor don't often translate well to many other uses.
9.23.2009 11:07am
Steve:
Is it possible that any Hindu chosen would breach fiduciary duty in order to protect his religion?

As an attorney, I confess I would not have the fortitude to argue to the court: "Your Honor, we really need to have a non-Christian photographer inventory this Christian church, because a Christian might choose fealty to their religion over obeying this Court's lawful orders." Maybe it would come across differently if a different religion were at issue, but I have my doubts.
9.23.2009 11:14am
wm13:
I don't believe that federal law provides a bfoq exception for religion or race, only for sex. (Obviously, the law is not strictly enforced in such areas as casting for movies, but, as written, the law requires that both black and white actors be considered for roles as soldiers in the 54th Massachusetts, or whatever.)
9.23.2009 11:29am
ShelbyC:

...the law requires that both black and white actors be considered for roles as soldiers in the 54th Massachusetts


Malcolm X, starring Owen Wilson...
9.23.2009 11:37am
Skyler (mail) (www):
Why, Steve? If the Catholic Church were to go bankrupt, would there be a desire by Catholics to protect holy relics from bankers? Not all, not even most. But if there is a lot of money involved, it might be a breach of one's own duty to not protect it from co-religionist protection, or even the appearance of such.

Can you imagine the Pieta going on the block? Or even the common, and rarely believed, pieces of the true cross? I'd bet there would be a temptation to protect such things, and if I were the lawyer for the creditor I would probably insist on a religiously neutral party to be present when they inventory them.
9.23.2009 11:46am
DiverDan (mail):
Since the Chapter 11 Bankruptcy was filed to avoid foreclosure, I cannot believe that the Temple didn't already agree to a right of the Secured Creditor to inspect the Mortgaged Property in the Mortgage or Deed of Trust (whichever is commonly used in Georgia). Unless the Temple placed a similar restriction on its secured creditor - i.e., that only Hindus would be permitted to enter and inspect the Mortgaged Property, then I see no reason at all to impose those restrictions on other creditors. Hey, the Temple sought the benefits of Chapter 11, it must also live with the burdens. If the Temple is unwilling to make full and open disclosure to its creditors, then it can seek dismissal of the Bankruptcy and live with the consequences.
9.23.2009 11:48am
Steve:
If the Catholic Church were to go bankrupt, would there be a desire by Catholics to protect holy relics from bankers?

We're not auctioning off the Vatican here, just a single Hindu temple in Georgia. I think it is inappropriate to presume that someone will break the law simply because of their religion.

Again, I wouldn't want to be the lawyer who has to make the argument that there's not a single trustworthy Hindu to be found within the jurisdiction.
9.23.2009 12:03pm
Skyler (mail) (www):
And I'd hate to be the lawyer who is accused of malpractice when the creditors ask why the gold bells or cymbals, or whatever of value Hindus might have, are not accurately inventoried.

Local Catholic churches have plenty of relics and other property, not just the Vatican. If the University of Notre Dame goes bankrupt (heaven forbid, but if they choose financial administrators the way they choose football coaches. . . ) there are tons of priceless art and statues (Mestrovic's Pieta is my favorite) that must be accounted for. As a lawyer for the creditor, not only would I insist on a non-Catholic being present, I'd insist on a Michigan or USC alum being present!! :) even though I'm an alum of ND myself.
9.23.2009 12:13pm
Steve:
Well, and I'd hate to be the Hindu accountant who goes to jail for attempting to commit a fraud on the court and the creditors, which is a good enough incentive for most people to obey the law. A pretty good defense to the malpractice claim is that I hired a Hindu auditor because the Court ordered me to.

Yes, there is a mathematical possibility that any given Hindu might turn out to be the sort of religious zealot who is willing to disobey a court order in order to protect the assets of the local temple, but it's nothing more than religious bigotry to attempt to exclude all Hindus from the job because of that possibility. Imagine arguing that a white-owned business shouldn't be inventoried by a white auditor because you never know, it might be the sort of white person who protects his own race at all costs.
9.23.2009 12:29pm
PlugInMonster:
Once again non-Christian religions want special protections from the law.
9.23.2009 12:35pm
CJColucci:
Some years ago, an airline pilot sued because he, a non-Muslim, could not get the route into Mecca. (Why it was considered desirable, I do not recall.) The airline defended on the ground that non-Muslims were not allowed into Mecca and might, in fact, be executed. In effect, being a Muslim was a BFOQ for a flight into Mecca. The airline won.
9.23.2009 1:07pm
Bored Lawyer:

Would the classification be permissible on the grounds that in this case religion is an acceptable bona fide occupational qualification under Title VII?


Given that the Court order requires use of a Hindu, one would think so. You don't get more bona fide than wishing to comply with a Court order.

That, however, begs the question as to whether the order is Constitutional in the first place. It's probably a permitted (but not required) accomodation under the Religions Clauses of the First Amendment, but I think the point is arguable.
9.23.2009 1:12pm
PeteY:
I don't know anything about this case, but I'd be willing to wager that the judge said something like, "Why don't we do it this way ... Does anybody have a problem with that? No? Ok."

Then he pointed at one of the lawyers to write the order for him.

Not everything is a constitutional dilemma, though it is more interesting when it is.
9.23.2009 1:36pm
SFH (mail):
Would it be legal for a creditor to assign this particular job task to an employee based on the person’s religion?

I would say yes, certainly. If they don't have a Hindu employee, they could probably hire someone to do the task.
9.23.2009 2:07pm
John D (mail):
For those who are trying to draw a comparison to a (theoretical) bankrupt Catholic church, please be aware that some Hindu temples do specify that only Hindus may enter.

A few years ago, I was in Kerala, India and taken to see on the major temples there. Tradition marks it as Krishna's birthplace and so it's a important Hindu temple. The outside is beautiful with wonderful carvings of the Hindu gods.

I didn't see the inside. There's a sign noting that only Hindus can enter, and then only in traditional dress. The sign specified that all Western clothing, including underwear was banned. Can't have FTL under that dhoti.

Many other shrines were completely open to tourists. In Bangelore, I was taken to one and when I made a donation, the priest dipped his finger into the pigment.

"I'm not Hindu," I said.

He smiled broadly and marked my forehead.
9.23.2009 4:00pm
John D (mail):
And as I hit post, I realized...

The best comparison here would be to a LDS temple that went bankrupt. My understanding is that once LDS temples are consecrated, admittance is permitted only to members in good standing of the LDS as approved by the local bishop.

That would actually be a thornier problem. At least here they could get an unaffiliated Hindu.
9.23.2009 4:03pm
http://volokh.com/?exclude=davidb :
Religion Clause is a really good blog.
9.23.2009 5:11pm
Bored Lawyer:

Once again non-Christian religions want special protections from the law.


"Special" is a loaded term. The U.S. is a Christian majority nation, and the legal system (inherited from Britain and then modified somewhat over the years) reflects that in many details. So the law has already accomodated Christian practice and belief in many respects. That is simply viewed as "normal" and not "special" because it has been around for so long.
9.23.2009 6:42pm
Skyler (mail) (www):
What does it matter to a creditor if a Hindu doesn't want non Hindus in the secured property?

If the property is to be put on the block, or potentially put on the block, it's not going to be sacred much longer. If they restrict buyers of the property to only Hindus, then the value is likely going to be severely impacted. If the Hindus didn't want non-Hindus on the property, they shouldn't have used it as security. If the property is chattel and not real property, then the story is slightly different, but not by much.

Religion should not be used to shield debtors from contractually incurred debts and the consequences of not paying their debts.

I think the judge was being polite and that likely nothing will come of this, but it's not something the judge should have done unless all secured and unsecured creditors agreed to it.
9.23.2009 11:21pm
Eugene Volokh (www):
wm13: See 42 U.S.C. § 2000e-2(e)(1). Really, if you think the premise of one my questions is just flat wrong, why not look it up first to see which of us is correct, rather than just working from memory?
9.23.2009 11:55pm
Ricardo (mail):
This sounds like B.S. to me, actually. I've never heard of a Hindu temple mandating a 216-day "spiritual cleansing" ceremony. There are temples that prohibit non-Hindus at all times, temples that mandate only members of a certain caste can enter and temples that are open to all. Hinduism is completely decentralized so each temple is free to create its own doctrines, however.

The background story doesn't inspire confidence. The head of the temple was previously arrested for theft and practicing medicine without a license while the temple has filed over 30 lawsuits against former devotees "alleging either defamation or failure to pay fees for religious rituals." They also sued some of the witnesses in the earlier criminal investigation.

It sounds like a racket to me. But I'm glad at the same time that the judge managed to find a way to accommodate the "spiritual cleansing" restrictions. Probably they thought they could delay bankruptcy procedures with this move.
9.24.2009 4:11am

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