What is at stake for religious liberty in the latest SCOTUS decision?

Supreme Court

Yesterday, the Supreme Court ruled on three cases: Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission. The court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

In a previous post, I discussed what this ruling means politically, especially for the agenda of the Christian Right and their faith in Donald Trump. In this post, I want to discuss what it means for religious liberty in the United States.

Rather than pontificate, I want to simply call your attention to a few statements that reflect my views. First, here is a statement from the Council for Christian Colleges and Universities (CCCU):

Today, the Supreme Court issued a decision that extends federal protections to LGBT employees. At the CCCU, this is a decision that we have long recognized was possible, and is why we have been public supporters of legislation that would proactively balance the rights of religious communities and LGBT Americans. We believe it is essential that any protections for LGBT persons be paired with the essential religious freedoms that maximize freedom for all. Today’s ruling gives LGBT Americans more employment security, but it leaves important questions unanswered for religious employers. We call on Congress to address these uncertainties through legislation that makes explicit the religious protections important to a rich and vibrant civil society. We look forward to playing an important role in these vital conversations on behalf of our institutions and their First Amendment rights, and will continue to pursue strategies that protect the Christ-centered mission of our institutions and preserve and strengthen Christian higher education for the future.

At this point, I am not sure what this Supreme Court decision means for “Fairness for All.” In her piece at The Washington Post, Sarah Pulliam Bailey quotes University of Virginia Law School professor Douglas Laycock: “This will end all legislative bargaining over religious liberty in the gay-rights context…There is no longer a deal to be had in which Congress passes a gay-rights law with religious exemptions; the religious side has nothing to offer.”

And here is the National Association of Evangelicals:

The Supreme Court’s decision in three Title VII cases today redefines the word “sex” in a longstanding civil rights law. In a 6-3 decision, the Supreme Court ruled that employers are legally prohibited from considering sexual orientation or gender identity in their hiring and other terms and conditions of employment. The decision provides significant protections for LGBT people, but leaves unanswered how the right for people and organizations to exercise their religion — to live according to their deeply held convictions — will be safeguarded.

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. When Congress included the word “sex” in Title VII, Americans thought their representatives were creating a level playing field for women in the workplace. These recent cases before the Supreme Court argued that, whatever members of Congress were thinking back in 1964, the law they passed also covers employment decisions based on sexual orientation and gender identity. In doing so, the Supreme Court created a law that Congress has repeatedly considered since the 1990s and declined to adopt.

By reading into a venerable civil rights law newly discovered protected classes, the Supreme Court has teed up years of social conflict. Judicial decisions by their nature are blunt instruments between two parties that do not allow for nuanced distinctions between types of employers, such as religious employers, and types of employment decisions.

In Title VII, Congress recognized that a blanket application of a nondiscrimination policy based on sex would create a conflict for some churches, religious colleges and other faith-based organizations in which theological convictions mandate differentiated roles. Accordingly, Title VII, as amended in 1972, includes a robust religious employer exemption that allows faith communities to structure their communal life according to their religious beliefs. With the Supreme Court’s expanded definition of sex, this exemption will be more important than ever, as a wider range of employment practices come under legal restrictions.

As a matter of church-state relations, the government should not interfere in the employment decisions of religious employers. The 1972 exemption has enabled all Americans of goodwill to coexist in a spirit of mutual respect. The National Association of Evangelicals is grateful that Justice Gorsuch’s opinion includes a reaffirmation of the ministerial exception, Title VII religious employer exemption, and Religious Freedom Restoration Act protections.

Since questions about religious freedom remain unanswered, the NAE will work in the courts and Congress to safeguard the freedom of religious organizations and individuals to follow their conscience and beliefs. We urge lower courts to respect and uphold this right in cases that come before them in the years ahead. Ultimately Congress should pass legislation that will ground in the act itself — not just a court decision — protection of the rights of all employers and employees to live according to their deepest convictions.

I will try to keep writing on this in the next few days. Stay tuned.