The Supreme Court delivered a significant victory for LGBTQ rights this week by recognizing that Title VII of the 1964 Civil Rights Act protects lesbian, gay, bisexual and transgender Americans from workplace discrimination. But it remains to be seen just how effectively this ruling will shield queer workers who may actually need that protection the most ― those who are employed by conservative religious business owners.
Monday’s ruling affirmed that in general, businesses can’t fire or otherwise discriminate against LGBTQ workers just for being queer. But the court didn’t consider what would happen if a business owner claims a firing stems from their sincerely-held religious beliefs about gender and sexual orientation. In fact, numerous religious liberty issues around workplace discrimination still haven’t been settled.
That means job security could still be a problem for some LGBTQ Americans ― including, for example, a gay, married nurse at one of the growing number of Catholic hospitals in the country or a transgender cashier at a Hobby Lobby arts and crafts store.
Employers that want to discriminate against LGBTQ employees now have an even greater incentive to cite their religious beliefs as the basis for that discrimination, according to the advocacy group Americans United for Separation of Church and State.
“We expect an increasing number of cases in which employers, both nonprofit and for-profit, assert a right to the religious exemption under Title VII to avoid having to comply with the new decision,” Americans United noted in an analysis of Monday’s decision provided to HuffPost.
The late trans activist Aimee Stephens, whose case was folded into Monday’s ruling in Bostock v. Clayton County, Georgia, faced workplace discrimination because of the religious views of her employer. Stephens was fired from her job as a Michigan funeral home director in 2013 after telling her employer she was transgender. Business owner Thomas Rost tried to argue that his religious freedom as a Christian with conservative beliefs about gender allowed him to discriminate against Stephens.
Federal judges dismissed that religious liberty argument before it reached the Supreme Court. Rost’s company didn’t ask the justices to review that part of the case.
Justice Neil Gorsuch, the Trump appointee who wrote Monday’s 6-3 majority opinion, noted in the ruling that Title VII itself includes exemptions for religious organizations, while the First Amendment and a federal religious freedom law give faith groups plenty of leeway to be selective about employment. Gorsuch left open the possibility that “other employers in other cases may raise free exercise arguments that merit careful consideration.”
The law at the center of many of these religious freedom defenses ― the Religious Freedom Restoration Act of 1993 ― states that if the government is substantially burdening someone’s “sincerely held religious beliefs,” it has to prove that it’s using the least restrictive path to achieving a compelling interest.
Democrats originally introduced RFRA in Congress, and it initially had bipartisan support. But over the past few years, the religious right has latched on to RFRA to secure exemptions for conservative religious beliefs, partly driven by losing ground on issues such as abortion and LGBTQ rights. At least 21 states have adopted their own RFRAs.
For now, the Supreme Court’s ruling means that for-profit businesses can’t discriminate against their gay and transgender employees, even if their owners hold conservative beliefs about marriage and gender, according to Katherine Franke, faculty director of Columbia University’s Law, Rights, and Religion Project.
Franke said this includes workplaces like Hobby Lobby. The arts and crafts chain is owned by an evangelical Christian family whose legal efforts against the Affordable Care Act’s contraceptive mandate expanded RFRA rights from individuals and religious non-profits to certain for-profit businesses.
It’s too early to tell where this Supreme Court would fall on balancing employers’ RFRA claims with queer employees’ civil rights, Franke said.
In the past, the Supreme Court has agreed that sex equality is a compelling governmental goal. But courts have recently become more receptive to anti-sex equality claims under RFRA, according to Elizabeth Sepper, a religious liberty scholar at the University of Texas at Austin. This could ultimately be harmful to workers, she said.
“Exempting business from antidiscrimination law for religious reasons would be a sea change in how we’ve balanced religious objections in commercial settings,” Sepper told HuffPost. “Broad religious exemptions would give bosses more power over workers and make racial, gender, and sex disparities at work even deeper.”
Smaller businesses with fewer than 15 employees ― such as many wedding vendors ― are not covered by Title VII, according to Frank Ravitch, a religion and law scholar at Michigan State University. Issues arising from those situations would fall under state anti-discrimination laws, he said.
It’s unclear how Monday’s ruling ultimately affects religious nonprofits. Title VII offers a religious exemption to organizations whose “purpose and character are primarily religious.” The exemption allows houses of worship, religiously affiliated hospitals and universities, faith-based social service providers and other religious entities to only hire people who share their religion.
This exemption doesn’t give religious nonprofits the right to fire employees in interracial marriages ― which would be race discrimination ― or refuse to hire mothers ― which would be sex discrimination, Sepper said.
As of Monday, LGBTQ Americans are also a protected class and should theoretically be shielded as well, Americans United suggested. But the courts will have to decide whether a conservative Christian nonprofit can claim, for example, that a transgender Christian worker doesn’t truly share the nonprofit’s religion and that, as a result, it’s legal to discriminate against them.
Wrapped up in this debate is the issue of who counts as a “minister.” Religious institutions don’t have to follow the Civil Rights Act’s anti-discrimination policies when it comes to hiring clergy. Conservative religious groups have pushed for an expansion of the definition of minister.
The Supreme Court is currently considering Our Lady of Guadalupe School v. Morrissey-Berru, a case involving two former Catholic school teachers who claim they were fired for age or disability discrimination. The schools claim that both of the women count as ministers because they taught religion, among other subjects. The schools made some “troubling arguments,” including claiming that nurses at Catholic hospitals should also be considered ministers, Americans United wrote in its analysis.
“Especially now, in the wake of the Title VII decision, there will undoubtedly be a legal effort to include any faith-based nonprofit [among the institutions covered by the ministerial exception], regardless of whether it is affiliated or unaffiliated with a denomination or house of worship,” Americans United stated.
It remains to be seen if Monday’s ruling on Title VII will affect other federal laws prohibiting sex discrimination in housing, education and public accommodations.
It will be some time before these issues are resolved. During the Supreme Court’s next term, the justices will take up a case that could have more far-reaching consequences than Monday’s ruling. It involves a Catholic adoption agency in Philadelphia that is arguing that the Constitution’s free exercise clause allows it to discriminate against queer couples. The case has the potential to create even more constitutional protections for religious dissenters of all kinds, including business owners.
Conservative religious groups have already made it clear that they are troubled by Monday’s ruling.
Los Angeles’ Roman Catholic Archbishop José H. Gomez, who leads the U.S. Conference of Catholic Bishops, called the ruling an “injustice that will have implications in many areas of life.”
Russell Moore, a Southern Baptist who leads the policy arm of the nation’s largest Protestant denomination, warned that “this is just the beginning of the legal discussion at this point.” He pledged that his organization will continue to defend religious liberty in court.
The ruling “will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality,” Moore said.
Americans United’s president, Rachel Laser, agreed that another fight on religious liberty and LGBTQ rights is looming.
“The progressive, inclusive faith and secular communities must come together to make clear that religious freedom is a shield that protects, not a sword that licenses discrimination and harm to others,” Laser said in a statement.