Spencer

PER CURIAM Opinion; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge KLEINFELD; Dissent by Judge BERZON.

ORDER

The opinion filed in this case on August 23, 2010, and reported at 619 F.3d 1109 , is hereby amended. An amended opinion is filed concurrently with this order.

With this amendment, Judge O’Scannlain has voted to deny the petition for rehearing en banc, and Judge Kleinfeld has so recommended. Judge Berzon has voted to grant the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed.

OPINION

A majority of the panel (Judges O’Scannlain and Kleinfeld) holds that World Vision, Inc. qualifies as an entity exempt under 42 U.S.C. § 2000e-1(a) from Title VII’s general prohibition against religious discrimination. Judges O’Scannlain and Kleinfeld concur that an entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out…

concurring:

We must decide whether a faith-based humanitarian organization is exempt from Title VIPs prohibition against religious discrimination.

I

Sylvia Spencer, Ted Youngberg, and Vicki Hulse were terminated by World Vision, Inc. (‘World Vision”) on account of their religious beliefs. Religious discrimination is, of course, barred by Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e-2(a). That bar, however, does not apply to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” Id. § 2000e-l(a). World Vision’s eligibility for this exemption is the issue presented in this appeal.

A

World Vision describes itself as “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” What began in 1950, when Dr. Robert Pierce started sending a monthly donation to a child in China, has become World Vision International (“WVI”): a federation of eighteen independent and…

concurring:

All three of us agree that a multifactor test does not work well because it is inherently too indeterminate and subjective, but we disagree on what the test ought to be. I write separately because, although I agree with Judge O’Scannlain that we should affirm, I disagree with both my colleagues’ formulations of the test to be applied. I concur in Parts I and II of Judge O’Scannlain’s concurrence.

The Civil Rights Act of 1964 generally prohibits discrimination based on religion, but exempts religious institutions:

Our task is to decide whether World Vision is a “religious corporation, association, educational institution, or society.”

Judge O’Scannlain formulates this test: “a nonprofit entity qualifies for the section 2000e-l exemption if it establishes that it 1) is organized for a self-identified reli *742 gious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent ■with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.” Judge Berzon formulates this one: “Congress used the terms ‘religious corporation, association ... or society ... to…

dissenting:

World Vision Inc. maintains that it is a “religious corporation, association, educational institution, or society” and so not covered by Title VII’s prohibition against hiring or discharging employees on the basis of religion. See 42 U.S.C. § 2000e-1(a). If World Vision is right, then it may refuse to hire, and may fire, on the basis of their religious beliefs individuals — like the plaintiffs here^ — whose jobs have no religious element at all.

Judges O’Scannlain and Kleinfeld agree that World Vision qualifies for the exemption and so can insist that all of its employees share the organization’s belief that “Jesus Christ is God and a member of the Trinity.” My colleagues arrive at this conclusion by fashioning a brand new test for applying the Title VII religious organization exemption. 1 Under that newly minted standard, any entity can claim the exemption “if that entity is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal…