DC Appeals Court Rules Against FCC in Lutheran Church Case

(April 16, 1998)  The U.S. Court of Appeals for the D.C. Circuit held unconstitutional the FCC's Equal Employment Opportunity program requirements in Lutheran Church-Missouri Synod v. FCC.  The decision reversing and remanding the case to the FCC was released on April 14.  The FCC and Department of Justice have not yet announced whether they will ask the Supreme Court to review the decision.

The broadcaster/appellant in the case is the Lutheran Church - Missouri Synod.  It holds Federal Communications Commission licenses for two radio stations in Clayton, Missouri.  It has an AM station with a religious format, and an FM station which broadcasts classical music with a religious orientation, and religious programming.  Both are housed on the campus of the Church's Concordia Seminary.  Both are dedicated to preaching the Gospel.   And according to the FCC, neither hired enough minorities.  The FCC fined the Church and ordered it to comply with numerous directives, but did not deny its license renewal applications.

With help of some high powered lawyers (and "friends of the court") the Church took its case to the Appeals Court.  On appeal, the FCC argued that its regulations and actions were justified because it was for the purpose of promoting "programming diversity."  However, the Court did not buy this argument.   The Court reviewed the FCC regulations (47 CFR § 73.2080 (b) and (c)), and concluded that the FCC "obliged stations to grant some degree of preference to minorities in hiring."

Also, the Court found the FCC's "programming diversity" claim unconvincing and inconsistent.  On the one hand, the FCC argued that it can require religious broadcasters to hire non-Lutherans for the positions of secretary, manager, or engineer without violating the First Amendment free exercise of religion clause, because those positions are not connected to the espousal of religious views over the air.  On the other hand, the FCC argues that it can require broadcasters to hire minorities for these same positions in the name of increasing programming diversity.  The Court wrote:

"That contradiction makes a mockery out of the Commission's contention that its EEO program requirements are designed for broadcast diversity purposes."

It continued that for the FCC the term "diversity" really means "racial proportionality" and "proportional representation."  And these, the Court ruled, do not provide adequate justification for the EEO program requirements under Equal Protection analysis.  The Court wrote that the FCC did not pass either strict scrutiny or intermediate scrutiny analysis.

Also, since the Court reversed on Equal Protection grounds, it did not address the Church's Free Exercise or Religious Freedom Restoration Act challenges.    Moreover, the Court's decision did not reach the FCC's non-discrimination rule.

However, the Court added:

"our opinion has undermined the proposition that there is any link between broad employment regulation and the Commission's avowed interest in broadcast diversity.   We think, therefore, that the appropriate course is to remand to the FCC so it can determine whether it has authority to promulgate an employment non-discrimination rule."

The Appeals Court decision was made by a three judge panel, comprised of Laurence Silberman, David Sentelle, and Stephen F. Williams.  Silberman wrote the opinion.   All three are Reagan or Bush appointees known for their conservatism on both Constitutional and regulatory issues.

In contrast, most of the FCC Commissioners inhabit the other end of the spectrum on these matters.  FCC Commissioner William Kennard had this to say after the ruling:

"Our nation is diminished by today's D.C. Circuit opinion in Lutheran Church-Missouri Synod v. FCC.  In this opinion, a panel of the D.C. Circuit held unconstitutional the FCC's rules requiring broadcasters to cast a wide net in their recruitment efforts.

I am confident that our rules are constitutional and that they embody the best American principles of fostering opportunity. We are reviewing the D.C. Circuit's decision and our options for judicial appeal."  (Source: FCC Press Release.)

Meanwhile, the Reno Department of Justice, which is concerned with preventing employment discrimination in all areas of employment, not just those regulated by the FCC, may not consider this to be a good case to take to the Supreme Court.  The Department's attorney in this case, Lisa Wilson Edwards, refused to answer any question about the case.

Case name: Lutheran Church - Missouri Synod (Appellant) v. Federal Communications Commission (Appellee), Missouri State Conference of Branches of the NAACP (Intervenors), et. al., Case No. 97-1116, argued January 12, 1998, decided April 14, 1998.

Parties, Amici, and Attorneys:

• The Lutheran Church - Missouri Synod was represented by Fisher, Wayland, Cooper, Leader & Zaragoza, 2001 Pennsylvania Ave. NW, Suite 400, Washinton DC, 20006-1851, 202-659-3494.  Lead counsel: Barry Gottfried, bgottfreid@fwclz.com.  Other counsel, Kathryn Schmeltzer, kschmeltzer@fwclz.com, 202-775-3547, Richard Zaragoza, and Gene Schaerr.
• The FCC lead counsel was Daniel M. Armstrong.
• The NAACP, Missouri State Conference of Branches of, brief was prepared by David E. Honig.
• Amicus curiae brief of the U.S. Department of Justice was filed by Lisa Wilson Edwards, Appellate Section of Civil Rights Division, 202-514-5695.
• Amicus curiae brief of the American Center for Law and Justice was prepared by Jay Sekulow, Mark N. Troobnick, and Colby M. May.
• Amicus curiae brief of the Center for Individual Rights and National Religious Broadcasters was prepared by Michael P. McDonald, Daniel E. Troy, and Lawrence W. Secrest, III.