Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County, a Supreme Court decision extending employment protections to gay and transgender people, kicks off a new religious liberty battle.
Gorsuch wrote that he foresees a path for religious institutions to fight their way to the Supreme Court as they seek exceptions from new laws granting protections for gay and transgender workers. He pointed specifically to the Religious Freedom Restoration Act, a federal law that prevents government from unnecessarily burdening the practice of religion unless it advances a narrowly tailored, “compelling interest.”
“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases,” Gorsuch wrote, adding that he expects to see future cases where religious employers “raise free exercise arguments that merit careful consideration.”
John Bursch, a senior counsel at the nonprofit law firm Alliance Defending Freedom who argued against transgender protections in Bostock, said that Gorsuch’s note outlines the litigation over transgender issues that will likely unfold for “years to come.”
“Now that they’ve queued up this religious question, you can expect that those conflicts will develop, and eventually, there will be more cases,” he said.
Bursch, who also participated in the arguments for the landmark Obergefell v. Hodges gay marriage case, explained that many of the questions raised by Gorsuch in Bostock are already set to come before the court in the fall in Fulton v. City of Philadelphia.
That case, which will determine whether or not faith-based adoption agencies are required to serve gay and transgender couples, has the capacity to be the “Hobby Lobby for religious liberty,” Bursch said, in reference to a 2014 case in which the Supreme Court extended religious exceptions to closely held corporations defying an Obama-era contraception mandate. If the court hands down a similar opinion in Fulton, Bursch added, it will likely settle a portion of the religious liberty battle that Gorsuch outlined in his Bostock opinion.
“If the Court concludes that the Constitution very broadly protects religious liberty in that context, that will certainly be a signal that the court will recognize those same rights to religious liberty in many other contexts,” Bursch added.
While the court expressed interest in reviewing religious liberty cases after Bostock, many advocates are not optimistic that, based on the way it decided Bostock, they will receive favorable outcomes. Ryan T. Anderson, a senior research fellow at the Heritage Foundation, condemned the decision, noting that it runs contrary to Congress’s repeated reluctance to pass transgender nondiscrimination legislation. Anderson, who was one of the chief opponents of gay marriage, said that the court ignored the biological definition of sex in its decision, an argument also made by Justice Samuel Alito in his dissent.
“The Supreme Court has simply legislated from the bench,” Anderson said in a statement. “This is pure judicial activism.”
The decision, handed down Monday, establishes that Title VII of the 1964 Civil Rights Act protects gay and transgender people from discrimination on the basis of their orientation or gender identity. It revises a previous, commonly held understanding of Title VII, which interprets the protections as applying to people based on their biological sex.
While Gorsuch’s support for protections surprised many, as the justice typically sides with the conservative wing of the court, the way he framed his arguments did not. Gorsuch considers himself a textualist and said during the case’s oral arguments last October that, based on past texts surrounding the Title VII issue, he was “really close, really close” to deciding in their favor.
Gorsuch, Chief Justice John Roberts, and Alito warned at the time that if the court were to decide in favor of protections, it would risk, in Gorsuch’s words, “massive social upheaval.” In his opinion, Gorsuch nods to that observation, especially in the cases of religious employers, many of whom fear the decision may require them “to violate their religious convictions.”
“Worries about how Title VII may intersect with religious liberties are nothing new,” he wrote, before explaining how religious institutions may find shelter within exceptions laid out by Title VII itself and ministerial exceptions designed by the court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, along with the strategy of seeking protection through RFRA.
Alito, in a dissent joined by Justice Clarence Thomas, said that the decision actively threatened religious liberty. Referencing Our Lady of Guadalupe School v. Morrissey-Berru, a case heard this term similar to Hosanna-Tabor, Alito said that he feared the religious freedom of both schools could come under fire. In these cases, religious schools sought protections so that they could hire religion teachers whose lives reflected the tenets of the faith they teach.
Using these schools as an example, Alito illustrated how the Title VII revisions could potentially present a problem for educators seeking to promulgate a faith.
“If a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment,” Alito wrote. “Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.”
Faith leaders involved in religious liberty advocacy pointed out that the decision, while it signals many future fights, more immediately exposes how much ground the cause for religious liberty has lost since the 2015 Obergefell decision.
The Southern Baptist leader Russell Moore, in a blog post responding to the decision, wrote that the case 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.” But, at the same time, Moore said, the decision should be a reminder to Christians of their minority position in American society with regard to ideas about sex.
“This Supreme Court decision should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality,” he wrote. “That the ‘sexual revolution’ is supported here by both ‘conservatives’ and ‘progressives’ on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life.”
