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.