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In LGBTQ jobs ruling, justices left religious questions ‘for future cases’

By Gene Policinski and Benjamin Marcus

The landmark U.S. Supreme Court decision Monday declared that a federal law prohibiting discrimination in employment does protect LGBTQ workers. But the court also deliberately left “for future cases” to decide how it would rule if an employer argues the law violates their religious beliefs about employing gay or transgender workers.

Justice Neil Gorsuch, writing for the 6-3 majority, said that because “sex plays a necessary and undisguisable role” in firing someone who is gay or transgender, that is “exactly what (the law) forbids.”

But he said the court is “also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” — and noted that the 1993 Religious Freedom Restoration Act (RFRA) might act as “a kind of super statute” in determining certain instances as exceptions to the federal discrimination ban.

In citing possible legal challenges and exceptions, Gorsuch effectively teed up future court battles over where the justices will draw lines between a general ban on discrimination against LGBTQ people and specific exceptions for some employers who likely would be required to show deeply held religious beliefs to the contrary.

Gorsuch’s opinion acknowledged that “worries about how Title VII [the 1964 Civil Rights Act section involved in Monday’s decision] may intersect with religious liberties are nothing new; they even predate the statute’s passage.”

When Congress passed the Civil Rights Act, it specifically included an exception for religious organizations, Gorsuch said. He also cited a 2012 unanimous Supreme Court decision supporting the “ministerial exception” (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, or EEOC), in which Chief Justice John Roberts said the First Amendment “bar(s) the government from interfering with the decision of a religious group to fire one of its ministers.”

Gorsuch wrote, in passing RFRA, Congress took pains to limit the 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.”

Gorsuch’s opinion concluded that summary of possible exceptions with the observation that “doctrines protecting religious liberty (and how they) interact with Title VII are questions for future cases, too.” In fact, the Supreme Court is expected to decide this month on cases involving how the “ministerial exception” applies to teachers in religious schools.

Gorsuch took pains to note that “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 cases referenced in Monday’s decision were:

How might a future court decision balance the LGBTQ discrimination ban and First Amendment protections for religious liberty?

On a spectrum of likely application of exceptions, there seems little chance of reversing the ruling that a congregation whose beliefs decry homosexuality can refuse to hire — or is free to fire — a gay minister, priest, rabbi or imam.

Moving down the scale in the likelihood of applying such exceptions would be: non-clergy jobs, such as teaching religious classes at a religious institution; teaching positions at such a school involving non-religious topics; and general employment positions at such institutions.

At the farthest end of the exception scale are closely held, for-profit companies, which might demand accommodations to anti-discrimination laws based on sincere religious beliefs. Such companies would likely not receive religious freedom-based exemptions, though they might appeal to the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. to make their case. (In 2014, the Supreme Court ruled that because the owners of Hobby Lobby Stores, Inc., were family owners that operated and organized with Christian principles, the corporation could not be ordered, under the Affordable Care Act, to fund contraceptives through its employee health care plan. The act already included exceptions for religious groups and non-profit religious institutions.)

Some conservative leaders warned that Monday’s decision will set off new battles around religious liberty.

Hours after the ruling was announced, The Washington Post reported that Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, “wrote that the ruling will have seismic implications … setting off potentially years of lawsuits and court struggle about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality.”

And Katharine Franke, a law professor at Columbia University, told the online news outlet The Hill exactly what social conservatives fear and LGBTQ advocates hope will happen: “The fact that two of the more conservative members of the Supreme Court joined in the decision reaching this result today signals a tipping point in securing full equality for LGBT people. … Quite clearly, this ruling will have implications beyond the workplace, and will include rights to equality for LGBT people in health care, housing, public accommodations, foster care and other important settings.”

But most of those issues don’t directly engage the First Amendment in the way, for example, the “ministerial exception” does. And it’s that collision, of Monday’s decision with the religious freedom protections provided by the amendment, where court exceptions to this decision about LGBTQ rights are most likely to first come, if at all.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

Benjamin P. Marcus is religious literacy specialist at the Religious Freedom Center of the Freedom Forum. His email address is: [email protected].

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