Symposium: LGBT rights and religious freedom—finding a better way

Alexander Dushku and R. Shawn Gunnarson are shareholders at Kirton McConkie, where they represent an array of religious institutions on various matters. They were counsel of record on amicus briefs on behalf of religious organizations and religious colleges and universities in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.

It was only a matter of time before LGBT equality in the workplace became part of federal law, though savvy observers have debated whether that change would take place in Congress or the courts. The Supreme Court’s decision yesterday in Bostock v. Clayton County, Georgia answered that question. With Justice Neil Gorsuch writing for a six-member majority, the Supreme Court held that under Title VII of the 1964 Civil Rights Act, employment “discrimination based on homosexuality or transgender status necessarily entails [unlawful] discrimination based on sex.”

The court’s decision raises hard questions about the freedom of religious organizations and schools to continue their faith-based employment practices. (In the spirit of full disclosure, both of us acted as counsel of record on friend-of-the-court briefs representing religious organizations and religious colleges and universities.)

First, Bostock calls into question the distinction between LGBT status and conduct. Repeatedly, the court’s opinion refers to homosexuality without acknowledging any difference between the status of being gay or lesbian and conduct based on that status. Nor does the opinion acknowledge any difference between what it labels transgender status and conduct related to that status, such as pursuing a course of social or medical transitioning. Although some argue that no meaningful distinction between LGBT status and conduct exists, employee standards for religious organizations and religious educational institutions often draw nuanced lines based on important theological distinctions. Bostock’s disregard of the status/conduct divide raises troubling questions about the ability of religious employers to continue making compliance with religious conduct standards a condition of employment.

Second, Bostock raises questions about the “express statutory exception for religious organizations.” Section 702(a) of the Civil Rights Act of 1964 provides that Title VII “shall not apply” to “a religious corporation” regarding “the employment of individuals of a particular religion to perform work connected with … its activities.” In a unanimous decision in Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints v. Amos, the Supreme Court applied Section 702(a) to shield a religious organization from Title VII liability for discharging a building custodian who was no longer a church member in good standing.

Religious organizations of all stripes have relied on Section 702(a) and Amos for their right “to define and carry out their religious missions.” Setting consistent religious standards for all employees is an essential means of building a workforce that is united in its commitment to the employer’s religious mission. Halfhearted employee support for an employer’s broad mission may not matter to Amazon or Google. But requiring a church or faith-based organization to employ people who do not fully embrace its religious mission, or whose lives are out of harmony with that mission, effectively forces the employer to choose between its religious mission and compliance with Title VII. Congress plainly sought to shield religious employers from being forced to make that choice when it adopted Section 702(a).

Bostock unwittingly casts doubt on that understanding. Its holdings that Title VII imposes liability for sex discrimination whenever “an employer would not have discharged an employee but for that individual’s sex” and that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” suggest that certain religious standards might violate Title VII. Many religious organizations sincerely believe that God has established marriage as the union of man and woman, for example, and they have employment standards that reflect that belief. From the employer’s perspective, those standards are essential to preserving a workforce consisting of what Section 702(a) calls persons “of a particular religion.” But after Bostock, an employee discharged for entering a same-sex marriage can be expected to bring a claim for sex discrimination. After all, Bostock takes pains to emphasize that “nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination.” Employees will argue that that Title VII’s command against sex discrimination cannot be undone by assertions of sincerely held religious beliefs under the religious exemption.

We believe such arguments should fail. Religious organizations have long relied on Title VII’s definition of religion as encompassing “all aspects of religious observance and practice, as well as belief” to support broad protection for the autonomy and self-governance of religious employers. The right Congress granted to churches and other religious organizations to hire based on religion would be hollow without the ability to hire employees who actually live their religion. But Bostock raises uncertainties about whether that autonomy extends to religiously grounded understandings of sexuality and gender. Title VII’s religious exemption was never intended to deal with a dramatically expanded understanding of sex discrimination that includes sexual orientation and gender identity. Will the Supreme Court in future cases give as expansive a reading to “religion” in the exemption as it did to “sex?”

Everyone should be clear that the dilution or breakdown of Title VII’s religious exemption would pose dire consequences for religions with unpopular beliefs regarding marriage, family, gender and sexuality. As Justice Samuel Alito points out in his dissent, acting on those religious beliefs could expose a church (never mind religious schools or faith-based charities) to serious if not existential risks because of the newly expanded reach of Title VII.

Third, it is likewise uncertain what Bostock means for claims of religious discrimination. Will the same but-for causation standard apply when an employee claims that he or she was discharged because of religious belief or expression? The court seems to embrace a hair-trigger standard that imposes liability for sex discrimination even if sex forms a small part of the challenged employment decision. Will that same standard apply to a secular employer when a religious employee is discharged even in small part for expressing religious beliefs that are contrary to the employer’s views?

To its credit, the court in Bostock tries to reassure religious employers. Gorsuch mentions the protections of Title VII’s express exemption, as well as the Religious Freedom Restoration Act, the ministerial exception and the First Amendment. We welcome the court’s open acknowledgment of the “fear that complying with Title VII’s requirement in cases like [Bostock] may require some employers to violate their religious convictions.” But none of these defenses is without questions and limitations. We have already mentioned some issues relating to Title VII’s exemption. RFRA is a potent defense for religious freedom, but it is already under heavy fire. The Equality Act would eliminate RFRA as a defense to LGBT rights claims. The ministerial exception is vital but narrow; only employees who qualify as a ministers come within its scope. And the First Amendment is cherished but no less contested. For 30 years, it has permitted the government to impose a substantial burden on the exercise of religion, so long as a law is neutral and generally applicable. (See Employment Division, Department of Human Resources of Oregon v. Smith.) A case now before the court, Fulton v. City of Philadelphia, offers a welcome opportunity to restore the full meaning of the free exercise clause by reconsidering Smith. But the future shape of free exercise doctrine remains unknown.

The court’s majority states that it too is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution,” noting “that guarantee lies at the heart of our pluralistic society.” Each of the dissenting justices expressed the same concern for preserving religious freedom. But the Supreme Court alone cannot ensure that outcome. It needs Congress as a partner. Congress should clarify that federal law protects both LGBT equality and religious freedom. In contrast with the Equality Act, the Fairness for All Act, H. R. 5331, 116th Cong., 1st Sess. (2019), offers a balanced approach respectful of our pluralistic society. It would confirm Bostock’s holding that employment discrimination based on sexual orientation and gender identity is unlawful while also securing meaningful protections for churches, religious schools and other religious organizations. This legislation, the product of years of delicate negotiations between LGBT rights groups and major religious organizations, offers the promise of LGBT rights plus religious freedom—not a false choice between them.