Catholics Central in LGBTQ, Religious Liberty Cases Before U.S. Supreme Court This Term

Are LGBTQ people protected from discrimination under federal law or not? This question is central to three LGBTQ-focused cases that U.S. Supreme Court is hearing oral arguments for today. While none of these cases directly involve Catholic plaintiffs or defendants, Catholics remain central to important cases involving LGBTQ issues and religious liberty that the Court will consider this term.

The LGBTQ-focused cases being heard today are Altitude Express v. Zarda, Bostock v. Clayton County, and Harris Funeral Homes v. EEOC. The first two involve gay employees fired because of their sexual orientation, while the third is an employee’s claim they were fired because of their gender identity. The central question is whether “sex” as a protected class under Title VII of the federal Civil Rights Act of 1964 actually includes sexual orientation and/or gender identity. Rolling Stone explains in greater detail:

“All three of these cases ask the Court to interpret the word ‘sex’ in Title VII. The employees in each case argue that this word covers more than just your traditional sex discrimination claim, where a woman is fired or treated differently at work because her boss doesn’t want women around or when a woman is sexually harassed. Rather, the word includes sexual orientation and gender identity for the simple reason that, even though they are each separate parts of a person’s identity, they are inextricably related to sex.

“To get more specific, there are three arguments the employees are going to be making to the Court. First, that discrimination based on sexual orientation treats people differently because of their sex because if, say, the fired gay men, who were attracted to men, were actually women, they would not have been fired for being attracted to men. Thus, Bob is fired because of his sex because he is attracted to Dan, whereas if Bob were Barbara, she wouldn’t. Second, that gay men and lesbians as well as trans people who are fired because of their identity are really being fired for failing to live up to gender stereotypes — for gay men and lesbians, that they should be attracted to, respectively, women and men (and not the other way around); for trans people, that they should live their lives in accordance with their gender assigned at birth. And third, for gay men and women, that they are being discriminated against because of the sex of the people they romantically and/or sexually associate.”

Crux reported on other cases involving Catholics, LGBTQ, and religious liberty issues that might be considered by the Court this term:

“A big case that could be taken up by the court this year is Fulton v. Philadelphia, which centers on the city of Philadelphia’s refusal, as of last year, to permit foster children to be placed with families that worked with Catholic Social Services of the Philadelphia Archdiocese. City officials made the decision after the agency confirmed to a local newspaper that it would adhere to Catholic teaching on marriage and would not place a child with a same-sex couple but would refer them to another agency.

“The issue before the court is whether Philadelphia discriminated against Catholic Social Services and its foster parents by preventing the agency from serving children and families consistent with the agency’s religious beliefs.

“Another possible case about free exercise of religion concerns a florist who was sued for refusing to make floral arrangements for a same-sex wedding, with echoes of the 2018 Masterpiece Cakeshop decision.

“Other specifically Catholic cases the court might take up involve Catholic school teacher firings in California, the pension obligation to Catholic school employees by the Archdiocese of San Juan, Puerto Rico, and a Christmas ad campaign for buses by the Archdiocese of Washington which was rejected by the Washington Metropolitan Transit Authority for being religious.”

Finally, the Court will hear Espinoza v. Montana Department of Revenue which centers on whether state governments can ban churches and religiously-affiliated schools from receiving public funds.

Catholics are central to the U.S. Supreme Court’s work this term in other ways. Five of the Court’s nine justices are Catholic (Thomas, Roberts, Alito, Sotomayor, Kavanaugh). The U.S. Conference of Catholic Bishops for years has been indirectly spurring on a campaign by conservatives to use religious liberty as a weapon against LGBTQ equality. Five Catholic colleges (Belmont Abbey, Benedictine College, The Catholic University of America, Franciscan University of Steubenville, John Paul the Great University) joined some 40 faith-based higher education institutions in an amicus brief opposing an expanded understanding of civil rights law that includes LGBTQ people. And Catholics on both sides of the cases will be rallying outside the Supreme Court today.

Furthermore, the rulings in these cases could impact the Catholic Church’s operations in the U.S. greatly. If the Supreme Court finds that federal law does protect people from discrimination based on their sexual orientation and/or gender identity, such a ruling could affect Catholic institutions’ practices in employment, social services, healthcare, etc. For instance, federal non-discrimination protections could help stymie the scourge of LGBTQ church employee firings (though this issue remains quite complicated, in part because of so-called “ministerial exemptions” that leave who counts as a minister undefined). In another example, it could help ensure Catholic hospitals cannot discriminate against transgender patients undergoing gender-affirming surgeries.

Alternatively, if the Supreme Court finds LGBTQ people are not protected under federal law, it could lead to more discrimination by Catholic schools, hospitals, churches, and social service agencies. Unlike under President Obama, these religious institutions seeking to discriminate now find an ally in the federal government as the Trump administration joins conservatives in abusing religious liberty to undermine equality.

But however the Court rules in the three cases it is hearing today and possibly others touching on LGBTQ rights and/or religious liberty, Catholics will play a central role in either advancing or diminishing LGBTQ equality this coming judicial term. Let us pray these Catholics are drawing from the church’s traditions of social justice and an understanding of religious liberty as a concept which is designed primarily to protect individuals, not institutions.

—Robert Shine, New Ways Ministry, October 8, 2019