Job protections for LGBTQ could face court threat
When the Supreme Court issued its historic June 2020 ruling banning job discrimination based on either sexual orientation or gender identity, the author, Justice Neil Gorsuch, cautioned that the court was not considering arguments that hiring an LGBTQ worker would violate an employer’s religious beliefs.
Those arguments may arrive soon. And some commentators think they will find sympathetic ears on a court that has issued a series of decisions in the past year exempting religiously affiliated institutions from rules governing secular bodies.
For example, the court ruled in a California
case in July that religious schools were not bound by civil rights laws in hiring and firing teachers. In another California case this February, the court struck down Gov. Gavin Newsom’s ban on indoor worship services during the coronavirus pandemic, which were similar to restrictions covering other large indoor gatherings.
And last week the justices ruled unanimously that Philadelphia had violated religious freedom by denying fosterfamily funding to a Catholic agency that does not place children with samesex couples. The decision was narrow, based on the city’s own rules to exempt fosterplacement agencies from its equaltreatment standards, but three justices said the court should go further and exempt religious institutions from all such requirements that violate their beliefs.
The ruling in Fulton vs. Philadelphia shows that “this court is interested in finding ways to liberate religious entities, including employers, from the need to abide by antidiscrimination provisions protecting LGBTQ people,” said Cary Franklin, faculty director of UCLA Law School’s Williams Institute, which focuses on gay and transgender issues. “There are more Fultons to come in various spheres.”
The recent rulings indicate a majority of the justices would exempt religious employers, and those with religious beliefs, from any law that protects lesbian, gay or transgender employees from discrimination, said Steven Green, a law professor and director of the Center for Religion, Law and Democracy at Willamette University in Salem, Ore. He said Gorsuch gave that signal in the closing passage of last year’s employment ruling.
While declaring for a 63 majority that the ban on sex discrimination, under Title VII of the 1964 Civil Rights Act, protects LGBT employees and job applicants, the conservative justice said the 1964 law could be overridden by a “superstatute,” the 1993 Religious Freedom Restoration Act. That law, known as RFRA, prohibits the government from substantially burdening someone’s exercise of religion, Gorsuch noted, unless it was the only way to protect a “compelling governmental interest.”
“How these doctrines protecting religious liberty interact with Title VII are questions for future cases,” Gorsuch said.
In other words, Green said, Gorsuch was assuring fellow conservatives who consider LGBTQ protections a violation of religious freedom, “I’ve got your back, when a better case comes forward.”
One who anticipates such a case is John Bursch, a lawyer for Alliance Defending Freedom, a religious conservative nonprofit. There is no need for the court to search for a religious exemption to employment discrimination laws, Bursch said, because “the federal government already created one” with RFRA.
“Religious liberty protection can coexist with members of the LGBTQ community,” Bursch said. He said he knows of no employer who is unwilling to hire someone because of his or her sexual orientation, but there are some who would refuse to recognize an employee’s samesex marriage or grant marital benefits.
The court would rule in the employer’s favor, Bursch predicted, just as it did in the 2014 Hobby Lobby case that allowed corporate employers to deny birth control coverage to female employees because of religious objections.
RFRA applies only to federal laws, so a ruling that relied on that law to overturn protections for LGBTQ employees would not affect those employees’ rights under laws in California and other states. But both state and federal discrimination laws would be set aside if the court found gay rights protections violated an employer’s constitutional guarantee of religious freedom.
There is no such case yet on the docket for the court’s 202122 term, which begins in October. Not all commentators expect one.
“I think the justices understand that most Americans have accepted the idea that LGBTQ people have rights and they should be protected by law,” said Joel Paul, a constitutional law professor at UC Hastings in San Francisco. He said the court has gradually increased religious institutions’ exemptions from civil rights laws, as in the cases on teachers at religious schools, but “it’s hard for a private employer to argue that there’s a religious obligation to discriminate.”
Paul noted that the ruling in the Philadelphia fostercare case had been written narrowly, applying only to the city and its programs, and had drawn an indignant response from Justices Gorsuch, Clarence Thomas and Samuel Alito, who wanted the court to go much further. He said Chief Justice John Roberts, author of the ruling, was clearly “trying to create some consensus on the court and moderation on the court in order to protect the court’s legitimacy.”
The three justices want the court to overrule its 1990 decision in Employment Division vs. Smith, which said neutrally written laws that apply equally to people of all faiths do not violate freedom of religion. That ruling was written by one of the court’s most conservative members, the late Justice Antonin Scalia, and upheld Oregon’s refusal to allow unemployment benefits to American Indians who were fired for their religious use of peyote.
In response, Congress passed RFRA with nearly unanimous support three years later, allowing people to challenge laws that interfered with their religious practices and did not serve a vital government interest. Recalling the law’s history — its lead sponsor was Sen. Chuck Schumer, DN.Y. — attorney Jennifer Pizer of the gay rights nonprofit Lambda Legal winced at Gorsuch’s description of the 1993 law as a “superstatute” that might override LGBTQ legal protections.
It’s true, Pizer said, that a majority of the Supreme Court appears to “embrace the idea that conservative Christians are under attack in this country.” But she said some of those justices may not be ready to abandon past precedents, noting that Justices Amy Coney Barrett and Brett Kavanaugh, both appointees of former President Donald Trump, had signed a separate opinion in Fulton advising against writing a judicial blank check to claimants of religious discrimination.
“I don’t know” if the court will roll back protections for LGBT employees and job applicants, Pizer said, but “we’re doing our best to raise a red flag.”