Home > News > The Supreme Court closed the door on LGBTQ employment discrimination. But it opened a window.
185 views 8 min 0 Comment

The Supreme Court closed the door on LGBTQ employment discrimination. But it opened a window.

How big will the religious exemption be? Stay tuned.

- June 16, 2020

On Monday, the Supreme Court issued a landmark ruling for LGBTQ rights. The majority opinion in Bostock v. Clayton County held that Title VII of the Civil Rights Act, which prohibits discrimination in employment “because of … sex,” can be read to extend protections to LGBTQ individuals. Perhaps most surprisingly, the Supreme Court’s 6-3 decision was written by Trump appointee and conservative stalwart Neil M. Gorsuch, and he was joined by fellow conservative Chief Justice John G. Roberts Jr.

The decision prompted swift and intense reactions from both sides of the issue. Civil rights groups hailed the decision as “a huge victory for LGBTQ equality.” Christian conservatives responded with alarm, predicting that the ruling will have “seismic implications for religious liberty.”

But a close reading suggests that the ruling may not be as sweeping as both sides have characterized it. Of particular interest are the final few paragraphs of Gorsuch’s opinion, where he leaves open the possibility that these newly extended protections for LGBTQ individuals could be “supersede[d]” by religious liberty claims.

I explain what that means and why it matters.

LGBTQ employees now have workplace protections under the 1964 Civil Rights Act

Until Monday, it was legal in 25 states to fire someone because of their gender identity or sexual orientation. In three separate incidents, individuals in different states had been fired “simply for being homosexual or transgender.” They sued, claiming protection under Title VII of the Civil Rights Act of 1964. Title VII outlawed workplace discrimination on the basis of “race, color, religion, sex, or national origin.” The Supreme Court consolidated these three cases to decide whether discrimination against LGBTQ individuals was, in fact, sex discrimination for the purposes of the statute.

Six Supreme Court justices agreed that this behavior constituted sex discrimination. As Gorsuch wrote: “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” This behavior, Gorsuch continued, is “exactly what Title VII forbids.”

But these new rights can be “supersede[d]” if employers claim religious liberty

While the court ruled unequivocally for the Bostock plaintiffs, Gorsuch suggested in his final few paragraphs that, under some circumstances, Title VII protections could be “supersede[d]” by religious liberty claims under the First Amendment’s Free Exercise Clause (“Congress shall make no law … prohibiting the free exercise [of religion]”) and/or under the Religious Freedom Restoration Act. This 1993 law exempts individuals from complying with federal law if a person can show that a federal law “substantially burden[s]” their “exercise of religion.”

Addressing the “fear” that the Bostock ruling “may require some employers to violate their religious convictions,” Gorsuch suggests that these newly won Title VII protections for LGBTQ individuals would be “displace[d]” in cases where the conduct in question was religiously motivated.

The Supreme Court said LGBT job discrimination should be illegal. Roughly 70% of Republicans agree.

The court’s recent record of protecting employers’ “religious liberty” is strong

Over the past two decades, the Supreme Court has become increasingly receptive to religious liberty claims, with conservative Christian litigators, such as the Alliance Defending Freedom, winning at an impressive rate. Just in the past few terms, the court has ruled in favor of allowing prayer at government meetings, struck down limits on taxpayer funding for church infrastructure improvements, and ruled that a massive cross in Maryland did not have to be removed from government land.

Consider, for instance, the 2014 case Burwell v. Hobby Lobby. In this case, the Supreme Court extended the Religious Freedom Restoration Act’s religious liberty protections to small, privately held for-profit corporations such as Hobby Lobby. The Affordable Care Act mandated that all employers’ insurance plans cover preventive health services; Obama administration regulations categorized contraception as preventive health care. But in Burwell, the court held that for-profit corporations were “persons” with religious rights — and that, therefore, businesses whose owners had religious objections to covering contraception were exempt from that ACA requirement.

Or consider Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 case in which a baker claimed that his religious convictions barred him from making a wedding cake for a same-sex couple. The Colorado Civil Rights Commission ruled that that refusal violated the state’s statute preventing discrimination against LGBTQ individuals. The Supreme Court ruled in favor of the baker. Gorsuch, who voted with the majority, wrote separately to defend the baker’s right to religious liberty, arguing that forcing the baker to engage in conduct that would violate his religious convictions was contrary to his First Amendment rights of religious exercise.

The TMC newsletter is changing shape! Sign up here to keep receiving our smart analysis.

Will Title VII protections for LGBTQ individuals be the rule — or the exception?

Decisions matter. But the way an opinion is written can matter more. Supreme Court opinions perform a powerful signaling function, indicating what kinds of cases, what kinds of questions, and what kinds of claims the justices would be receptive to hearing.

Litigators — the lawyers who bring the cases — pay attention to these signals and behave strategically in response, taking cases and adapting legal arguments to have the best chance of winning favorable rulings. Because the Supreme Court cannot question whether litigants are truthfully declaring that their conduct is motivated by a “sincerely held religious belief,” any employer who fires an LGBTQ employee and later claims that their conduct was religiously motivated could conceivably be exempt from Bostock.

While conservative Christians and faith-based litigators expressed disappointment with the decision in Bostock, Gorsuch’s “signal” to these groups in his opinion is clear: Bring the cases, and the Supreme Court will decide exactly how, and how often, religious liberty can “displac[e]” or “supersede” the Title VII protections for LGBTQ individuals.

Four ways Donald Trump is already manipulating the U.S. elections.