On Monday, the Supreme Court handed down its decision in Bostock v. Clayton County, Georgia, holding by a 6-3 majority that the prohibition on sex discrimination under Title VII of the 1964 Civil Rights Act includes discrimination against LGBTQ+ employees. But on the question of how to balance those rights against an employer’s religious freedom, it punted the issue to a future court.
At issue were three consolidated cases from different Circuit Courts of Appeals, each of which presented the same basic fact pattern and legal issue: Can an employer fire someone for being gay or transgendered? As background, for some 40 years after the enactment of Title VII, this issue was mostly academic. In the real world, the Equal Employment Opportunity Commission and the courts consistently concluded that is not what the statute meant. Legislation has been introduced in Congress for decades to extend Title VII protections to LGBTQ+ workers, but such bills were received about as well as ham salad at a bar mitzvah.
Only recently had the EEOC changed course on this, and cases presenting the issue have been crawling through the federal courts, finally landing at the Supreme Court. I expect that few legal eagles expected this court would hand a 6-3 decision in favor of the extension, much less for the majority to act as if this was not even a legitimate question.
The religious liberty questions that the Supreme Court has opened up in the past have been mere fender-benders compared to the T-bone collisions that may occur as a result of this decision.
The majority opinion, written by Justice Gorsuch, is odd. While for the most part ignoring any lower courts’ analysis of the issue, Justice Gorsuch offers what reads like a mix between a philosophical dissertation and painful legal exegesis. For example, while he attempts to characterize the decision as rooted in strict construction of the statutory language, he introduces the concept of “unintended consequences.” Thus, we find a conservative Justice offering up this justification for the decision: “But the limits of the drafter’s imagination supply no reason to ignore the law’s demands.” In other words, even if no one considered or intended for this to be the law, we can decide that it was there all the time, like a hidden prize in a box of Cracker Jack.
Similarly, Justice Gorsuch appears to be straight-faced in writing, “No ambiguity exists about how Title VII’s terms apply to the facts before us,” even though the Supreme Court itself previously avoided this holding, and competent jurists have debated it vigorously. Nearly as stunning is his assertion that “the meaning [of Title VII] is plain,” after spending 23 pages exploring different arguments and hypotheticals to help explain what that meaning is.
At the end of the day, the majority concluded that LGBTQ+ isn’t necessarily a protected class, but that the motivation behind discrimination against them is based on sex stereotypes (e.g., that a man should be “manly”), and therefore runs afoul of Title VII. As an employment lawyer, that result doesn’t surprise me, but the route to get there makes Lombard Street look like a superhighway by comparison.
After reaching its conclusion, the majority seems to acknowledge that they have popped the tab on legal disputes that have been shaken in a warm can for a long time. Justice Gorsuch’s answer to the confusion they have wrought is simple: Point to future courts and say, “Let those folks handle it.” He expressly dodges questions about how this decision will affect “bathrooms, locker rooms, or anything else of the kind.” As a consequence, we will be treated to weeks or months of ranting about “slippery slopes” on talk radio as a result of the decision.
More importantly, Justice Gorsuch concludes his opinion by addressing religious liberty issues that had been raised in an amicus curiae brief from several religious organizations, including The Church of Jesus Christ of Latter-day Saints. He specifically expresses concerns about a potential conflict between an expansion of Title VII and the religious freedom of employers.
The issue is a legitimate one. Although expressly included in Title VII, protection against religious discrimination is weaker than that for any other protected class. For example, a person who requests an accommodation for a disability under the ADA is entitled to such unless it poses an undue hardship on the employer. Conversely, virtually any inconvenience to another employee is enough to deny a request for religious accommodation. Invariably, at least in the employment arena, when religious rights come into conflict with other rights, religion loses.
Yet Justice Gorsuch ultimately shrugs off the potential conflict, saying that “worries about how Title VII may interact with religious liberties are nothing new.” Justice Gorsuch’s language may provide some comfort to religious organizations, for example, he calls the Religious Freedom Restoration Act a “super-statute” that should limit the effect of the ruling on religious organizations. But in effect, this language is included in an afterthought that won’t have the power of precedent, opening up the door for years of lawsuits that religious organizations will have to fight.
This is why, while the Church of Jesus Christ has explicitly called for the same employment protections for LGBT+ individuals in the past, they urged the court to not come to this conclusion, hoping for a legislative solution instead.
The religious liberty questions that the Supreme Court has opened up in the past have been mere fender-benders compared to the T-bone collisions that may occur as a result of this decision.
On one side is a cultural and political coming of age for LGBTQ+ rights. On the other are thousands of years of religious tradition and deeply rooted views of sexual morality. One may debate whether the rainbow and the cross are ethically at odds, but those claiming adherence to one or the other tend to fight bare-knuckled.
The majority points to existing protections for churches and other religious institutions under the First Amendment and Title VII itself. It also notes that the Religious Freedom Restoration Act of 1993 “might supersede Title VII’s commends in appropriate cases.” It’s just hard to imagine a case outside of a faith-based employer where that will occur.
Whether the Bostock case decided today will erode religious liberty remains to be seen. What is certain is that it will kick up a storm.
