On June 15, 2020, advocates of LGBTQ rights won a 6-3 Supreme Court victory in Bostock v. Clayton County, Georgia. An opinion by Justice Neil Gorsuch, joined by the Chief Justice, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, ruled that Title VII bans homosexual and transgender discrimination. In the Court’s words, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” The clear answer is no, the employer cannot fire an employee simply for being homosexual or transgender. According to the Court, Title VII allows those lawsuits for discrimination to proceed.
I am grateful to Gerald Bostock, and the late Donald Zarda and Aimee Stephens, for their faithful work to bring these cases to victory. Bostock is a huge win for LGBTQ plaintiffs, who worried they might lose in the Court, especially after the U.S. government sided with their employers. The employees did lose in one dissent by Justice Alito, joined by Justice Thomas, who said a “more brazen abuse of our authority to interpret statutes is hard to recall.” Another dissent by Justice Kavanaugh said the Court had inappropriately legislated.
Gorsuch wrote a careful and interesting opinion explaining why Title VII’s prohibition on discrimination based on “race, color, religion, sex, or national origin” includes homosexual and transgender discrimination. In the Court’s words, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” So sex discrimination includes sexual orientation and gender identity discrimination.
But some religions think they may discriminate against LGBTQs as a right of religious freedom. What happens to them? We will find out next term.
Religions Discriminate Against LGBTQs
The Court will hear a lawsuit by one such group in October, in Fulton v. City of Philadelphia. In that case, Catholic Social Services (CSS), an agency that participates in Philadelphia’s adoption program, claims a religious right to discriminate against same-sex married couples by refusing to place children with same-sex couples. Philadelphia has laws that forbid LGBTQ discrimination, and wants to hold CSS to that legal standard or else not do business with them.
The status of religions’ LGBTQ employees was unsurprisingly on the Court’s mind in Bostock. Justice Gorsuch’s opinion referred to it, noting that the employers feared that a ruling for LGBTQ plaintiffs might order employers “to violate their religious convictions.” He then observed the Court’s guaranteed commitment to the free exercise of religion. He also stated that there were past tensions between Title VII and religious freedom.
For example, Gorsuch’s opinion mentioned that Congress had included an “express statutory exception for religious organizations in Title VII.” §2000e-1(a). He did not acknowledge that the exception applies only to religious discrimination suits against religious organizations. In other words, a Catholic organization may favor hiring Catholics. A Baptist organization may favor Baptists. And so forth, for every religion. The statute itself exempts religions only from being sued for religious discrimination. Not for all the other protections of the statute, race, color, sex, or national origin.
The courts have freed religious organizations from the other claims of Title VII. Gorsuch reminds us that the “Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012).
Gorsuch also mentions Congress’s passage of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., which “prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.” Gorsuch then observes that RFRA is a “kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”
These are the detailed religion cases that lie ahead. As Gorsuch concludes, “So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”
How Much Discrimination Lies Ahead?
LGBTQ
There was good news against LGBTQ discrimination in Bostock. However, Archbishop Gomez, the President of the U.S. Bishops’ Conference, immediately responded negatively, saying in response to Bostock:
I am deeply concerned that the U.S. Supreme Court has effectively redefined the legal meaning of “sex” in our nation’s civil rights law. This is an injustice that will have implications in many areas of life.
By erasing the beautiful differences and complementary relationship between man and woman, we ignore the glory of God’s creation and harm the human family, the first building block of society.
Moreover, the Court could still rule in Fulton that Catholics have a right to violate the law and discriminate against same-sex couples in the adoption setting.
They might also have a religious freedom right to fire LGBTQ employees. Numerous LGBTQ employees have been fired by their religious employers. Sometimes the employers say they can fire anyone LGBTQ for theological reasons. Other times, they call them ministers, even though many of them were simply people doing a job for a religious employer.
Women
The ministerial exception, which Gorsuch referred to in Bostock, might, at first, sound appealing. It is good for employers. But it is not good for employees. The employer can label employees as ministers, even if the employees know or think they are not ministers, resulting in dismissal of any lawsuit for employment discrimination. That means the facts of the case—race, gender, sexual orientation, age, disability, equal pay—never get into court. The case is simply dismissed. None of the country’s antidiscrimination laws apply to ministers. That allows religions great freedom to discriminate.
Last year the Ninth Circuit correctly ruled that two women teaching at Catholic schools were teachers, not ministers. All of the law and Catholic theology support that ruling. Nonetheless, the Supreme Court heard their cases this year. I hope that Biel and Morrissey-Berru are ruled to be teachers, so that their disability and age discrimination lawsuits (respectively) can proceed. Sadly, Kristen Biel has already died of her breast cancer. I hope the two women win so that the schools do not get a free pass to dismiss discrimination lawsuits and fire people who they hired, retained for years and then, abruptly dismissed because they got sick and old, as we all will someday.
RFRA has also provided a tremendous weapon to religious organizations opposed to women’s rights. The religious employers won a right to deny their employees contraceptive insurance in Hobby Lobby. Then the Trump administration expanded the exemption so even more employers could refuse coverage. We wait to see whether the Court accepts that broader anti-contraceptive rule in Trump v. Pennsylvania, which was argued last month.
Both LGBTQ individuals and women have been systemically discriminated against by religious institutions. Ministers’ racial discrimination cases are dismissed, just as those brought by women and LGBTQ employees. Today especially, it is important to remember that religious freedom should not provide a curtain behind which discrimination is sanctioned based on race or gender.
Race
Most of us Whites live in a reality in which we think racial discrimination has been significantly reduced or even gone away. Sometimes the Court’s opinions reflect a world in which it has. In Shelby County v. Holder, for example, the majority no longer seemed to think that racial discrimination affected voting at all, and it limited the range of the Voting Rights Act.
We must remember that religions supported slavery and segregation, and fought integration even after the courts required it. As Historian Jemar Tisby explained in The Color of Compromise: The Truth about the American Church’s Complicity in Racism, “Christian complicity with racism remains, even as it has taken on subtler forms.”
Historian Shannen Dee Williams reminds us how brutally racist the Catholic Church has been. In her recent essay, The Church Must Make Reparation for Its Role in Slavery, she reminds us that the Catholic Church was the largest slaveholder in some states and, post-slavery, “the largest Christian practitioner of segregation.” The “vast majority of Catholic institutions and religious orders of men and women systematically excluded African-descended people, especially U.S.-born Blacks, from admission solely on the basis of race well into the 20th century.” And, she adds, “Black Catholic history reveals that the church has never been an innocent bystander in the history of white supremacy.”
In other words, religious support of Black inequality has been and continues to be woven into the fabric of our culture and society. This is true for women’s and LGBTQ rights and equality, as well.
Conclusion
Most Americans are usually happy about the passage of antidiscrimination laws, and today are excited about the big win for LGBTQ rights in Bostock.
In such a pro-civil rights environment, I would not conclude that the religious organizations—including not only churches and synagogues but religious schools, hospitals and universities—enjoy constitutional freedom to discriminate against Blacks, LGBTQs, and women. The Free Exercise Clause, as interpreted in Smith, requires everyone to obey the law. The ministerial exception and the RFRAs give religious organizations exemptions from those laws. And the Fulton petitioners are asking for Smith to be reconsidered so that religions can get more exemptions to widely discriminate against women and LGBTQs.
Does anyone believe that our Constitution gives full legal protection to the right to discriminate against anyone? Many want that world, and are expecting the Court to deliver it.
