Bostock Together With Religious Accommodation

In Bostock v. Clayton County, which volition live on argued adjacent week, the Supreme Court volition determine whether LGBT occupation discrimination is sexual practice discrimination prohibited past times Title VII of the Civil Rights Act of 1964.  A prominent amicus brief, past times the National Association of Evangelicals together with other conservative religious organizations, warns the Court that a conclusion that such discrimination is banned would unduly burden religious liberty.  The worry is real, but the Court tin easily answer to it.

Title VII already permits religious associations, corporations, educational institutions, together with societies to discriminate based on faith inwards a make of ways that other entities may not.  42 U.S.C. §2000e-1(a); 42 U.S.C. §2000e-2(e)(2).  The statute permits religious organizations to hire individuals “of a special religion,” together with it defines faith to include “all aspects of religious observance together with practice, every bit good every bit belief.” 42 U.S.C. §§ 2000e(j), 2000e-1(a).  Employers may besides discriminate based on sexual practice if that discrimination relates to a bona fide occupational qualification that is reasonably necessary to the normal functioning of their businesses.  42 U.S.C. §2000e-2(e)(1). 

The amicus brief is concerned that these exemptions are probable to live on narrowly construed:

some lower courts already give cramped interpretations to those protections, denying their application to employees together with occupation practices that are crucial to a religious organization’s autonomy together with mission. In the human face upward of a novel SOGI nondiscrimination dominion from this Court, the pressure level on lower courts to translate existing religious protections narrowly so every bit non to undermine this nascent norm volition live on enormous.

For example, the brief notes that roughly courts convey held that an exception for religious discrimination does non protect discrimination on other grounds, that the religious exemption does non apply if it disproportionately affects a protected degree or if religious standards are applied inconsistently (in the court’s opinion) together with hence tin live on deemed pretextual. 

These interpretations, the brief argues, could alone undermine the religious exemption:

Such conflicts endangerment fatally undermining the outcome inwards Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 United States of America of America 327 (1987), where the Court upheld Title VII’s religious exemption against a challenge past times an employee who was a fellow member of the faith but was terminated for failing to alive upward to its standards. Id. at 330 & n.4. If it becomes illegal for a religious scheme to require its employees to comply amongst all the faith’s standards—including those pertaining to sexuality—then much of the rationale together with import of Amos, including Justice Brennan’s of import concurrence, volition fail. See id. at 342 (Brennan, J., concurring) (“Determining that * * * but those committed to [a religious] mission should” acquit a religious organization’s activities is “a agency past times which a religious community defines itself.”).

The brief proposes that “a proper reading of the exemption allows religious employers to restrain hiring to those ‘whose beliefs together with acquit are consistent amongst the employer’s religious precepts.’ Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991).”  The Wuerl conclusion upheld a Catholic school’s firing of a Protestant employee who had remarried afterward divorce. 

The job is a existent one.  But the Court has the ability to bargain amongst it.  The same textualist method that supports the LGBT sexual practice discrimination claim besides supports the churches’ claim to the protection, against federal antidiscrimination law, of “all aspects of religious observance together with practice, every bit good every bit belief.”

If the Court is worried most this – although, if it actually agency to base of operations its conclusion on text together with zilch but text, it’s difficult to encounter how the consequences for the religious could live on legally relevant – it withdraw but Federal Reserve annotation the religious accommodations inwards the statute, together with refer Wuerl amongst approval.  That would give a pretty clear indicate to the lower federal courts of what it expects.  And if the message isn’t heard, together with then a few summary reversals should suffice to concentrate the mind.  Litigation is expensive together with small-scale churches may lack the agency to acquire to the Supreme Court, but this is an of import plenty number to religious police pull operations such every bit Becket together with Alliance that costless legal aid is probable to live on forthcoming.

The job is somewhat analogous to the job that bothered Justice Kennedy, inwards his bulk thought inwards Masterpiece Cakeshop v. Colorado, that the conclusion mightiness imply an excessively broad correct to discriminate nether the First Amendment.  He arrived at a similar solution.  There mightiness live on a constitutional exception to antidiscrimination police pull for roughly religious activity, he wrote.  But “if that exception were non confined, together with then a long listing of persons who render goods together with services for marriages together with weddings mightiness reject to make so for gay persons, hence resulting inwards a community-wide stigma in­consistent amongst the history together with dynamics of civil rights laws that ensure equal access to goods, services, together with world accommodations.”  That’s a pretty clear indicate to lower courts, blunted right away but past times the fact that Kennedy is gone together with it’s non clear what his replacement thinks.

The Court should non dismiss this chance to offering a combination of antidiscrimination protection together with religious accommodation.  Whatever it decides, LGBT occupation discrimination protection is coming.  A rejection of the discrimination claim is probable to make widespread outrage, somewhat similar the backlash against its 1986 Bowers v. Hardwick conclusion upholding the criminalization of homosexual sex.  Most Americans remember that antigay discrimination is already protected, together with they won’t live on pleased to larn that it isn’t.  That volition live on a novel impetus for the Equality Act, a sweeping protection against LGBT discrimination that recently passed the House of Representatives.  That is every bit far every bit it volition acquire this year, because the Republicans command the Senate together with the Presidency.  But political fortunes shift together with that won’t ever live on the case.  It has already attracted Republican votes.  Protection of LGBT people from occupation discrimination, which is what Title VII offers, is supported past times 92% of Americans.  And the Equality Act contains no religious accommodations at all.

In short, the amicus brief raises a serious together with of import issue.  But that number is a ground for the Court to make its job, follow the text, together with recognize that LGBT discrimination is sexual practice discrimination together with hence is already prohibited nether Title VII.