Denver Newsroom, Jun 16, 2020 / 16:56 pm
The U.S. Supreme Court's decision that a federal ban on sex discrimination also protects sexual orientation and gender-identity will have far-reaching consequences for religions, employers and employees because it enshrines a certain view of sexuality and gender into law, according to legal and religious liberty experts.
"We're going to have future litigation, in many other cases, on whether the anti-discrimination principle or the religious liberty principle trumps the other at the end of the day," John Bursch, director of legal advocacy and senior counsel at Alliance Defending Freedom legal group, told CNA.
The Supreme Court ruled on Monday that employers cannot fire workers because of their sexual orientation or self-determined gender identity, while dissenting justices argued the Court was legislating from the bench.
Justice Neil Gorsuch wrote the majority opinion for the Court in a 6-3 decision, joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They ruled that protections against sex discrimination in Title VII of the Civil Rights Act also applied to discrimination on the basis of sexual orientation and gender identity.
The decision considered a trio of discrimination cases before the Court, two of which involved employees who said they were fired because of their sexual orientation in Bostock v. Clayton County and Altitude Express, Inc. v. Zarda.
A third case, Harris Funeral Homes, Inc. v. EEOC, involved a man who lost his job at a Michigan funeral home after he had gender-transition surgery and returned to work dressed as a woman. The funeral home had sex-specific dress code policies for employees.
According to Bursch, who argued Harris Funeral Homes' case before the Supreme Court, the majority opinion "really embraces the modern cultural view of human sexuality and what it means to be male and female," he said.
"It accepts the precept that human sexuality is really irrelevant. It's really about how you feel, and what's in your head, and what you subjectively proclaim yourself to be, your gender."
"That kind of thinking is dangerous, not only because it maligns those who hold the opposite view, like the Catholic Church, but also because it does great harm to those who hold that view of themselves. Anytime we reject god's will for ourselves, including the bodies that he gave us, bad things happen," he added.
Bursch said the opinion holds that disapproving of choices made related to sexual orientation or gender identity is "wrong" or "discriminatory" or "hateful."
"If people start to imbibe that and start to agree with that, and the law says 'but there's an exception for religious beliefs,' they're going to start to think that those religious beliefs themselves are hateful, that they are discriminatory, that they are bigoted," he said.
"The arc of history shows that when you've got something that society deems to be bigotry and hateful, it doesn't last very long. And most of the time that's a good thing," he said.
However, he predicted this view will continue to lead some to castigate the Catholic Church and Catholic views on sexuality as being "hateful and bigoted."
Churches themselves are exempt from Title VII legislation, but religiously motivated employers do not have the same protection. Bursch expects that the Religious Freedom Restoration Act will "certainly help" such employers, but it is unclear how safe they will be.
The U.S. bishops were also critical. Archbishop Jose Gomez, president of the U.S. Conference of Catholic Bishops, said in a June 15 statement that the is "deeply concerned" that the court "effectively redefined the legal meaning of 'sex' in our nation's civil rights law."
"This is an injustice that will have implications in many areas of life," he said, voicing concern that the court's opinion erased "the beautiful differences and complementary relationship between man and woman."
"Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect," he added. "Protecting our neighbors from unjust discrimination does not require redefining human nature."
Tom Venzor, executive director of the Nebraska Catholic Conference, echoed Archbishop Gomez.
"The Church's teaching on sexuality and the human person is and always has been motivated by love," he said. "Those who feel they have the wrong body, or are attracted to persons of the same sex, are not cast out by the Church. The Church embraces them, seeks to understand their pain and suffering, and offers them a way to self-understanding, healing, and peace. This is not offered by the bodily autonomy movement that has gained so much purchase in the last several decades. Regardless of any Supreme Court decision, that will continue to be a mission of the Church-institutionally and individually, at Mass and in our conversations, in public and in private."
The Supreme Court case could have consequences for Christian employees.
Employees with traditional Christian views on marriage and gender identity could "absolutely" be perceived by their employers as a liability risk for creating a hostile work environment that is sexually discriminatory, Bursch said.
"If you had a Catholic employee who in a lunchroom conversation was asked what their views on gender identity were, and they explained John Paul II's beautiful theology of the body, and the Church's understanding about what it means to be created male and female and embracing your identity in Christ, not any identity you want to express in yourself, they could be deemed to have created a hostile environment to an employee who feels threatened by that language and disagrees with it. Now all of a sudden that Catholic employee is now on the chopping block".
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"There too we are going to have conflict and religious liberty differences that will have to be litigated in the courts," Bursch said. "Far from solving any problems, this opens up Pandora's Box, the next 20 years of court cases."
Burch cited the case of former Atlanta fire chief Kelvin Cochran, who, in a long firefighting career, was appointed US Fire Administrator by President Barack Obama before working as Atlanta's fire chief. He was fired after writing a book in his personal capacity that defended Christian views on sex.
Bursch said the Cochran case was "particularly scary to me because it involves non-work conduct."
According to Bursch, the city of Atlanta considered Cochran's views bigoted and unwelcome in the workplace and fired him. Though Cochran's lawsuit ended in a settlement, the city's approach will likely be used by others, Bursch said.
Some companies circulate surveys asking employees whether they are LGBT "allies." This can prompt an employee to wonder if this means endorsing same-sex marriage and gender ideology in ways that conflict with his or her religious belief, and to respond "no."
"You're being set up then because you could be punished in the future for not getting on board with the program and creating a hostile environment," Bursch warned.
"This isn't hypothetical, this isn't the boogeyman, we're going to see more of those cases moving forward," Bursch said. "The goal of those who are pushing this agenda is nothing less than to destroy the church and stop everyone from talking publicly about those issues.
Venzor suggested that business owners will suffer from high uncertainty in the wake of the decision, given that jurisprudence is rapidly changing.
"Business owners must be able to expect predictability from the law and the courts, and not radical, overnight shifts in what the law expects of them as participants in the free market," he said.
"Bostock already has and will violate the religious freedom of business owners, despite Justice Gorsuch's claims that the case was not addressing those particular issues. Justice Anthony Kennedy, in Obergefell v. Hodges, underscored the fact that 'reasonable and sincere people' have held for millennia and continue to hold onto traditional views of marriage and human sexuality."
"Yesterday, in Bostock, Justice Gorsuch told those same religious business owners that their religious values have no place in a 21st century 'woke' marketplace," Veznor told CNA.
Justice Neil Gorsuch, writing for the Court's majority, acknowledged religious freedom concerns for employers in the Court's decision. Religious organizations and employers do have certain protections from discrimination lawsuits under the First Amendment and the Religious Freedom Restoration Act, which the decision noted.
However, the religious freedom question would be a matter of future consideration since "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," Gorsuch wrote.
