The Supreme Court’s fall term opens Monday with a number of cases that could have a significant impact on religious freedoms. In the last few years, the Supreme Court has hesitated to make specific rulings on many controversial cases due to precedent, leaving the door open for those issues to fester in the lower courts and eventually make their way to the highest court in the land for consideration.
“I can’t recall a time in the last 20 years that there were this many key issues ready for a decision,” said Mark Rienzi, president of the Becket Fund for Religious Liberty, on a recent press call. Becket has represented a number of influential religious liberty cases, including those involving the Little Sisters of the Poor.
On Tuesday, the court will hear two similar cases, Bostock v. Clayton County and Altitude Express v. Zarda, consolidated into one hour for argument. Both cases involve gay men who allege they were fired due to their sexual orientation. Bostock had worked for Clayton County, Georgia, for 10 years when the fact that he was gay and had participated in a gay softball league was allegedly criticized at his place employment. He was later fired for “conduct unbecoming of its employees,” and sued for discrimination claiming that the Civil Rights Act of 1964 not only bans discrimination on the basis of sex but sexual orientation as well.
Zarda also addresses a similar issue. As Oyez describes it:
Like Bostock, Zarda sued, claiming sexual discrimination and that the Civil Rights Act of 1964 bans discrimination not just on the basis of sex but sexual orientation, which is why the two cases are being combined in oral arguments.
The Supreme Court will also hear R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which is about a transgender woman who alleges discrimination over gender identity. This case asks the Supreme Court to decide if Title VII of the Civil Rights Act prohibits discrimination against a person for their gender identity.
Like many businesses, Harris Funeral Homes has a typical dress code. Men are required to wear suits and women are required to wear skirts. Employee Anthony Stephens followed that dress code for several years without issue, until one day Stephens showed up to work at the funeral home wearing a dress and asking to be called Aimee. Stephens had decided he was transgender. Unsure of how grieving family members would react, or how to navigate the bathroom situation at a small business, the funeral home fired Stephens. Stephens then sued for sexual discrimination, claiming that Title VII banned discrimination on the basis of gender identity as part of sex.
Is gender identity or transgenderism the same as sex? When it passed in 1964, did the Civil Rights Act that banned sexual discrimination also ban discrimination based on gender identity? Most conservatives believe the answer is no, and that in order for gender identity to be included as a protective class, Congress needs to deal with this debacle, not the Supreme Court. But here we are.
All three of these cases represent opportunities for potential landmark decisions on sex discrimination, gender identity, and federal employment law. If the Supreme Court decides that Title VII, for example, does prohibit discrimination based on gender identity or sexual orientation, it could have a ripple affect on countless religious organizations — churches, schools, adoption agencies, and more. It will affect how religious institutions are able to enforce their own particular faith-based standards.
The Supreme Court has also agreed to hear Espinoza v. Montana Department of Revenue, although no date has been set yet for oral arguments. Montana has a scholarship program that allows students to use taxpayer dollars for tuition at a religious private school, if they so choose. Opponents believe the controversial Blaine Amendment in the state’s constitution prohibits such a program, while advocates say stopping the program due to the bigoted Blaine Amendment violates the religion clauses and equal protection clauses.
On the press call, Rienzi reiterated just how unique and exciting it is for the Supreme Court to have so many landmark cases before them that could influence policy and affect people and their faith. “The court is open to finding ways where it needs to make clear its doctrine shouldn’t be causing those types of troubles and instead that the First Amendment should function as it’s supposed to: which is as a way to let people live together harmoniously even though they have different views.”
While several more vital cases like this might be heard, these are the ones we’ll be keeping an eye on right out of the Supreme Court gate.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner‘s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
