Saturday, October 05, 2019

Bostock and religious accommodation

In Bostock v. Clayton County, which will be argued next week, the Supreme Court will decide whether LGBT employment discrimination is sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  A prominent amicus brief, by the National Association of Evangelicals and other conservative religious organizations, warns the Court that a decision that such discrimination is banned would unduly burden religious liberty.  The worry is real, but the Court can easily respond to it.

Title VII already permits religious associations, corporations, educational institutions, and societies to discriminate based on religion in a range of ways that other entities may not.  42 U.S.C. §2000e-1(a); 42 U.S.C. §2000e-2(e)(2).  The statute permits religious organizations to hire individuals “of a particular religion,” and it defines religion to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. §§ 2000e(j), 2000e-1(a).  Employers may also discriminate based on sex if that discrimination relates to a bona fide occupational qualification that is reasonably necessary to the normal operation of their businesses.  42 U.S.C. §2000e-2(e)(1). 

The amicus brief is concerned that these exemptions are likely to be narrowly construed:

some lower courts already give cramped interpretations to those protections, denying their application to employees and employment practices that are crucial to a religious organization’s autonomy and mission. In the face of a new SOGI nondiscrimination rule from this Court, the pressure on lower courts to interpret existing religious protections narrowly so as not to undermine this nascent norm will be enormous.

For example, the brief notes that some courts have held that an exception for religious discrimination does not protect discrimination on other grounds, that the religious exemption does not apply if it disproportionately affects a protected class or if religious standards are applied inconsistently (in the court’s opinion) and thus can be deemed pretextual. 

These interpretations, the brief argues, could entirely undermine the religious exemption:

Such conflicts risk fatally undermining the outcome in Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), where the Court upheld Title VII’s religious exemption against a challenge by an employee who was a member of the faith but was terminated for failing to live up to its standards. Id. at 330 & n.4. If it becomes illegal for a religious organization to require its employees to comply with all the faith’s standards—including those pertaining to sexuality—then much of the rationale and import of Amos, including Justice Brennan’s important concurrence, will fail. See id. at 342 (Brennan, J., concurring) (“Determining that * * * only those committed to [a religious] mission should” conduct a religious organization’s activities is “a means by which a religious community defines itself.”).

The brief proposes that “a proper reading of the exemption allows religious employers to limit hiring to those ‘whose beliefs and conduct are consistent with the employer’s religious precepts.’ Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991).”  The Wuerl decision upheld a Catholic school’s firing of a Protestant employee who had remarried after divorce. 

The problem is a real one.  But the Court has the power to deal with it.  The same textualist method that supports the LGBT sex discrimination claim also supports the churches’ claim to the protection, against federal antidiscrimination law, of “all aspects of religious observance and practice, as well as belief.”

If the Court is worried about this – although, if it really means to base its decision on text and nothing but text, it’s hard to see how the consequences for the religious could be legally relevant – it need only note the religious accommodations in the statute, and cite Wuerl with approval.  That would give a pretty clear signal to the lower federal courts of what it expects.  And if the message isn’t heard, then a few summary reversals should suffice to concentrate the mind.  Litigation is expensive and small churches may lack the means to get to the Supreme Court, but this is an important enough issue to religious law operations such as Becket and Alliance that free legal help is likely to be forthcoming.

The problem is somewhat analogous to the problem that bothered Justice Kennedy, in his majority opinion in Masterpiece Cakeshop v. Colorado, that the decision might imply an excessively broad right to discriminate under the First Amendment.  He arrived at a similar solution.  There might be a constitutional exception to antidiscrimination law for some religious activity, he wrote.  But “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in­consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”  That’s a pretty clear signal to lower courts, blunted now only by the fact that Kennedy is gone and it’s not clear what his replacement thinks.

The Court should not dismiss this opportunity to offer a combination of antidiscrimination protection and religious accommodation.  Whatever it decides, LGBT employment discrimination protection is coming.  A rejection of the discrimination claim is likely to produce widespread outrage, somewhat like the backlash against its 1986 Bowers v. Hardwick decision upholding the criminalization of homosexual sex.  Most Americans think that antigay discrimination is already protected, and they won’t be pleased to learn that it isn’t.  That will be a new impetus for the Equality Act, a sweeping protection against LGBT discrimination that recently passed the House of Representatives.  That is as far as it will get this year, because the Republicans control the Senate and the Presidency.  But political fortunes shift and that won’t always be the case.  It has already attracted Republican votes.  Protection of LGBT people from employment discrimination, which is what Title VII offers, is supported by 92% of Americans.  And the Equality Act contains no religious accommodations at all.

In short, the amicus brief raises a serious and important issue.  But that issue is a reason for the Court to do its job, follow the text, and recognize that LGBT discrimination is sex discrimination and thus is already prohibited under Title VII.