On Oct. 8, the Supreme Court will hear arguments in three high-profile cases about sexual orientation and gender identity in the workplace. These cases are poised to have an impact on every for-profit workplace across the country that has 15 or more employees.
Yet, as expansive as that decision would be, the cases could reach even further potentially putting in jeopardy the First Amendment rights of your church, synagogue, or mosque, as well as a variety of other faith-based charities, schools, and ministries.
If the court decides to redefine the term “sex discrimination” in the Civil Rights Act of 1964 to include sexual orientation or gender identity discrimination, faith-based nonprofits across the country will wonder whether they can continue to maintain employee codes of conduct that uphold traditional standards of sexual ethics. Can a religious ministry require employees to share and uphold its religious beliefs on issues of sexual conduct?
Unfortunately, it is far from clear how courts would rule.
First Liberty Institute submitted a friend-of-the-court brief in these cases, focusing on the potential religious freedom implications for religious denominations that hold traditional beliefs about marriage and gender. We asked the Supreme Court to seriously consider the impact on religious houses of worship, charities, nonprofits, schools, and other ministries when making its decision.
Religious ministries, including houses of worship, are not categorically excluded from the reach of federal employment discrimination laws, although they are provided with some important protections.
For instance, in 2012, the Supreme Court unanimously concluded that the First Amendment protects religious organizations’ ability to choose their own ministers and religious leaders. This is an important protection that allows churches and other religious ministries to use any criteria to choose the leaders that are best suited to conveying their religious message. Simply put, the government cannot impose an unwanted pastor on a church or an unwanted rabbi on a synagogue.
Our brief argues that the Supreme Court should rule that ministries not only have the right to choose their minister, but they also have the right to faithfully apply their religious beliefs within their communities.
After all, a common dedication to Catholicism is what makes a Catholic school Catholic. If religious freedom means anything, it must mean that religious organizations have the freedom to work together in communities that share a common set of religious beliefs.
Several courts have already recognized that religious ministries have precisely this statutory right, according to the Civil Rights Act itself. Congress allows religious organizations to consider religion in their employment practices, which implies that they are allowed to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.
Still, there is ambiguity in the lower courts regarding this statutory right. We have asked the court to resolve this ambiguity in favor of religious freedom for all.
The Civil Rights Act must be interpreted in a way that prevents the government from encroaching on the internal affairs of religious ministries, limits the courts from unconstitutionally entangling themselves with religion, and safeguards First Amendment rights for Americans of all faiths.
Stephanie Taub is senior counsel to First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.
