A confluence of demands for civil rights gives me hope that the United States will move to brighter times with less violence toward the vulnerable. In a historically short period of time, the country is turning a corner as four movements converge: Black Lives Matter, the LGBTQ rights movement, the #MeToo and ERA movements, and the movement for access to justice for child sex abuse victims. These movements share a demand for individuals to be treated with dignity, respect, and without violence. Their time is now.
The Black Lives Matter marches and our vibrant but long-overdue conversation about systemic racism illuminate the reality that the dominant culture has the capacity to shape public policy and law to enlarge its power at the expense of others. We literally have constructed systems that perpetuated the abuses of power in all four spheres.
The end of slavery was the beginning of poll taxes, Jim Crow laws, and “separate but equal.” The desegregation holding of Brown v. Board of Education was met with persistent and orchestrated resistance. Women were the property of their husbands; their suffrage was coincident with laws that permitted spouses to rape them. They have been subjected to sexual violence and harassment across the culture. The Equal Rights Amendment couldn’t pass, because it would undermine the structures that kept women in their “place.” Children were the property of their fathers; the Society for the Prevention of Cruelty to Animals was founded before there was a law against child abuse. Millions have been subjected to sexual abuse by those in power in every corner of our society, and obtaining justice for them is a textbook in fighting the entrenched power of the churches and insurance industry.
After centuries of discrimination, LGBTQ Americans have had recent successes constitutionally with a right to marry recognized in 2015 in Obergefell v. Hodges and statutorily with the Supreme Court’s interpretation of Title VII in Bostock v. Clayton County this week. The latter has been greeted with joy by many. There is considerably more work to be done, however, for LGBTQ individuals to be free of discrimination in the workplace.
The Pre-Built Barriers to LGBTQ Civil Rights that Bostock v. Clayton County Acknowledges
The Supreme Court surprised many with its 6-3 decision in Bostock v. Clayton County. The opinion holds that when Title VII of the Civil Rights Act of 1964 outlaws discrimination based on “sex” it also covers sexual orientation and transgender status. This reading of Title VII had been embraced by two out of the three circuit courts below, so the result shouldn’t have been a shocker. But many assumed that the conservative justices would vote together to ensure LGBTQ employees could not assert rights against discrimination by employers. Therefore, when Justice Neil Gorsuch wrote and Chief Justice John Roberts joined the majority opinion, it appeared to be a major breakthrough. It was, but don’t get too carried away here. The opinion shines a flashlight on the pre-constructed path to discriminate for most businesses.
The rights of the LGBTQ individuals have been fought vociferously by religious powers, and these religious powers have already laid the pathway in federal law to undermine Title VII to permit them to discriminate against LGBTQ individuals in religious, nonreligious, nonprofit, and for-profit settings. For the past 30 years, they have been constructing a pipeline for religious bosses to discriminate at will against employees based on sexual orientation and transgender status.
Justice Gorsuch’s Bostock opinion for the six-justice majority goes out of its way to quell the fears of the conservative believers who are intent on keeping LGBTQ individuals out of their sphere. Yes, as the opinion repeatedly says, an employer under Title VII may not discriminate against an employee simply because of “sex,” which includes gender, sexual orientation, and transgender status. Sounds good, eh? But Gorsuch makes sure to point out the three ways in which employers can under Title VII and federal law invidiously discriminates against LGBTQ.
First, Title VII does permit religious organizations to discriminate based on faith. If a faith requires LGBTQ employees to be subjected to “conversion” or to stay in the closet, an openly LGBTQ individual can be excluded.
Second, the Supreme Court’s expansive ministerial exception decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, gives religious organizations the right under the First Amendment to discriminate at will with respect to “ministers.” The Court took two unnecessary steps to empower religious organizations to engage in discrimination. The justices refused to tether the ministerial exception right to the beliefs of the organization, so that the Catholic Church, which does not profess a belief that ministers must be white, can discriminate based on race at will. Further, instead of limiting the right to ordained clergy, it cast a broad net to “ministers.” Of course, churches are now arguing ad nauseum that everyone is a “minister” in their organization if they are sued for discrimination. That’s right: the First Amendment is now a defense to most religious organizations’ hiring and firing decisions.
Third, and this is the most insidious move to keep entrenched LGBTQ discrimination in its place: After the Supreme Court invalidated the Religious Freedom Restoration Act in City of Boerne v. Flores, and equality might have had a chance against religious defenses, Congress passed RFRA a second time in 2000, this time knowing full well that a primary target of the religious lobbyists was Title VII. How do I know they knew that RFRA would be a weapon against civil rights? Because it’s in my written testimony, which explicitly detailed how RFRA would be deployed to harm others. When Democratic members permitted RFRA to go forward on unanimous consent on July 27, 2000, they knew Title VII was at potential risk. In Bostock, the Court calls RFRA a “kind of super statute, displacing the normal operation of other federal laws [that] might supersede Title VII’s commands in appropriate cases.” That choice of language alone should give everyone who supports LGBTQ civil rights pause. But it’s worse than it appears because of the RFRA doctrine the conservative justices had already put into place.
At one time, RFRA was believed to be limited to religious nonprofit organizations, and so most LGBTQ might be able to feel safe from discrimination under Title VII as interpreted in Bostock. True, they would have few protections in religious settings, but at least they would know where they are most at risk. That changed dramatically with Burwell v. Hobby Lobby, when the Supreme Court held that RFRA empowers not just religious organizations but also for-profit companies that have a religious owner or Board to discriminate against employees. In that case, the owner of the arts and crafts store, Hobby Lobby, was able to deploy RFRA to craft healthcare plans reflecting his religious beliefs even though those beliefs solely undermined women’s healthcare plans. Consistent with the reasoning of Bostock, that sex-based plan would seem illegal under Title VII. True, but for the “super statute.” Gorsuch has made clear the escape hatch for all employers—in any organization—caught up in Title VII and who are willing to invoke God or many gods to discriminate against LGBTQ: the Religious Freedom Restoration Act.
The trap has been laid through the hard work of conservative religious lobbyists, and the system must be changed: Repeal RFRA. Amend RFRA so that it has no effect on Title VII. Revise RFRA so that it does not apply to entities other than religious organizations as defined by the IRS. Enact the Do No Harm Act, which would carve out of RFRA the power to discriminate against LGBTQ individuals. It’s time for a revival of mutual dignity and respect in the United States.