The Supreme Court released a ruling Monday, 6-3, which said that under the Civil Rights Act of 1963, employers cannot discriminate against gay or transgender employees. While advocates praised it as a landmark decision for gay and transgender rights, the Right has mixed feelings. Some struggled to understand how Justice Neil Gorsuch, nominated by President Trump, could have come to the conclusion the word “sex” in 1964 meant anything other than “male” and “female.” It seems like even a generous reading of his opinion could portend negative implications for religious liberty, or at least, open a can of legal worms for people of faith.
The first hint of discord regarding potential religious liberty implications came from Gorsuch himself in his majority opinion: “So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.” Later, he said, “How these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
I spoke to some attorneys who thought it was highly plausible this ruling would allow for a bevy of lawsuits to be filed against religious organizations.
Take, for example, a Catholic school. Let's say a male seventh-grade math teacher transitions over time to female through hormone treatments and surgery. The Catholic Church believes only men and women are sexually complementary and that transitions due to gender identity struggles would add to the "destabilization of the family." Thus, in our example, let's say the school fires the teacher for failing to adhere to Catholic doctrine. Based on this Supreme Court decision, the school teacher would likely have a case of sorts to at least file a lawsuit. The teacher may not win — there are several solid religious liberty protections in place in terms of statutes and the Constitution — but it would take the Catholic school’s time and resources to defend itself.
Another example: A devout Lutheran works for a successful, but small, real estate company. During the birthday month of a colleague who is gay, the CEO of the company demands all employees to wear a rainbow pin on their clothing while at work and change their social media profiles to a rainbow avatar. If the devout Lutheran, who believes marriage is between a man and woman due to his faith, refuses, can the company fire him for being discriminatory under this new ruling?
Not everyone was worried about religious liberty implications. Kelly Shackelford, the president, CEO, and chief counsel at First Liberty Institute, a law firm that specializes in religious liberty cases, said: “We are grateful that the Supreme Court was clear in the opinion that this federal statute does not overrule peoples’ religious freedoms. We will find out in the very near future whether this is a hollow promise or a truthful assurance that the religious liberty of all Americans will be protected.”
Shackelford hints at what I mentioned previously: Despite the fact that this ruling could open up a legal can of worms for people of faith, they are not defenseless. The First Amendment, the Religious Freedom Restoration Act, the religious exemption in Title VII of the Civil Rights Act, and the ministerial exemption are several examples. In other words, the flag of religious freedom remains firmly planted in the ground, although it may blow in the wind a bit more readily now.
Alliance Defending Freedom, the attorneys who represented R. G. & G. R. Harris Funeral Homes in the Supreme Court case, were unhappy with the decision and expected it to create chaos in many scenarios, not just for religious people or institutions. Vice President of Appellate Advocacy John Bursch said: “Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle. Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts.”
Going forward, expect to see targeted lawsuits in important areas where an appellate court is likely to rule on these religious liberty issues. In time, we will see how the lower courts interpret this ruling and how this Supreme Court decision shakes out in the real world.
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.
