Religious Liberty and the Supreme Court’s Bostock Decision
Today the Supreme Court of the United States voted in a 6–3 ruling in Bostock v. Clayton County, Georgia that Title VII of the 1964 Civil Rights Act protects homosexual and transgender individuals from discrimination in the workplace. “An employer who fires an individual merely for being gay or transgender defies the law,” the decision read.*
This is a reinterpretation of the language from the 1964 law that made it illegal to discriminate against people in the workplace on the basis of “sex,” which at that time meant whether one was a biological male or a biological female. In other words, an employer could not refuse to hire, or fire, a woman in favor of a man, because she was a woman. Nor could an employer discriminate between men and women in terms of pay or any other treatment in the workplace.
The word “sex” has evolved to include homosexuality and transgenderism. Six of the nine Supreme Court justices have now redefined the word, thus making the law say something different from what the law’s framers meant by it, and what its interpreters have thought it to mean over the past fifty-six years.
This redefinition is troublesome on two fronts. First, obviously, it represents a mammoth shift in the way the morality of homosexuality is thought of in our culture, and this shift must be of concern to traditional religious people who intend to continue to view homosexuality and transgenderism the way they always have (more on this below).
Second, it has enormous implications for the way law is interpreted and decided in our time. The normal way of changing laws in our system of government is to enact legislation or to have a constitutional amendment. It appears that these are no longer necessary. Rather than write new legislation changing the wording of the Civil Rights Act specifically to include LGBT individuals (as the “Equality Act,” which cannot get enough votes to pass, would essentially do), or have a constitutional amendment giving LGBT individuals these rights (such as the the Fifteenth Amendment, which gave black men the right to vote, or the Nineteenth Amendment, which gave women the right to vote), the Court simply has to redefine one word in the 1964 legislation to make it mean something different from what it was intended by its framers and how it has been interpreted for fifty-six years.
As Justice Samuel Alito said in his dissenting opinion, “. . . our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.’ (A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 [2012] [emphasis added]). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.”
There will never be another amendment to the U.S. Constitution. Because of the new, arbitrary modus operandi of the judicial branch of the federal government, amendments are no longer needed. A constitutional amendment could never have passed—nor could congressional legislation—in the cases of Roe v. Wade, which made abortion legal in all fifty states, Obergefell v. Hodges, which made homosexual marriage legal in all fifty states, or the Bostock v. Clayton County, Georgia, decision handed down today.
Bostock v Clayton County Georgia Case
The Bostock case represents another instance of the gradual evolution away from the American system of government enshrined in the U.S. Constitution toward a new system of legislation by the judiciary. And even justices John Roberts and Neil Gorsuch, whom some have described as “originalists” (interpreting the Constitution according to the original intent of its framers), are operating, in this case, according to the same mode of more-liberal justices in the other above-mentioned cases.
Justice Alito said in his dissenting opinion, “Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s [the “Equality Act” passed by the U.S. House of Representatives but stalled in the Senate] provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.”
He went on to say: “Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
This decision could further erode religious institutions’ First Amendment right to the free exercise of their religion. As you will see below, there is ambiguity in what the ruling says about protection for religious institutions whose beliefs prohibit them from employing LGBT individuals. Allow me to share some lengthy excerpts from the majority opinion authored by Justice Neil Gorsuch that concern religious liberty:
“Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”
“But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’ (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC).”
“And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA). That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that 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.”
“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. 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.”
The ambiguities in the above language should be of concern to traditional religious people and their institutions—e.g., RFRA “might supersede Title VII’s commands in appropriate cases” (italics added) and “. . . how these doctrines protecting religious liberty interact with Title VII are questions for future cases. . . .”
Justice Alito points this out in his dissent that “the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.” I will quote Justice Alito at length, since his statements encapsulate the concern that traditional religious people and organizations have expressed on how this will affect religious liberty:
“Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court ‘will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.’ They argue that ‘[r]eligious organizations need employees who actually live the faith,’ and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.”
“This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty ‘communicate a particular way of life to its students,’ and a ‘violation by the faculty of those precepts’ may undermine the school’s ‘moral teaching.’ Thus, 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. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.”
“At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be ‘ministers.’ But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools ‘with respect to the employment of individuals of a particular religion to perform work connected with the carrying on’ of the ‘activities’ of the organization or school, but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.”
So what should conservative religious people do in response to this threat Justice Alito discusses? First, we should pray for justices at all levels of the judicial system to be appointed who will uphold the liberty of religious institutions to have hiring and admissions and free association policies consistent with the First Amendment. There are some judges who will want both LGBT people and religious people to have liberty. Thus we can pray that justices such as Roberts and Gorsuch, who ostensibly do not follow the originalism of the late Justice Antonin Scalia, will make common cause with originalist justices such as Alito and Thomas—common cause for the protection of that “first freedom” of religious liberty.
Second, we must continue to be active in the public square and must, in the many ways available to us, work toward that for which we pray—voting, writing letters to public officials, and advocating for religious liberty, but in a way that is charitable, compassionate, sensitive, winsome, and intelligent.
Third, we must, more than ever, prayerfully and financially support religious institutions that are committed to maintaining fidelity to their religious beliefs in the face of public pressure to modify those beliefs. Nothing has changed for these institutions, such as Welch College, which have always humbly followed their sincere religious beliefs on sexuality and gender and a host of other issues and will continue to do so regardless of the pressure exerted on them to abandon those beliefs.
Most of all, we must maintain our focus on Christ and the gospel of the kingdom, which is transforming our minds and affections and the way we live our lives, allowing that transformative effect to spill out into the lives of our families, churches, communities, and cultures. And we must rest confident that through His ordinary means of grace, our Lord will build His church, and the gates of hell will not prevail against it.
*All quotations from the Supreme Court majority opinion and Justice Alito’s dissent are from the ruling itself, which can be found at https://www.supremeCourt.gov/opinions/19pdf/17-1618_hfci.pdf. In-text citations removed.