Bostock Decision Leaves Question of LGBTQ Church Workers Undecided in Civil Law

Leslie Griffin

Legal experts and LGBTQ advocates have continued to opine about the implications of the U.S. Supreme Court’s Bostock decision, the Title VII ruling that prohibits employment discrimination based on sexual orientation and/or gender identity, including the impact that ruling might have on church workers.

Leslie Griffin, a professor of law, wrote in Verdict about how the justices left undecided some of the complex issues involved with Title VII and religious liberty claims, and the justices’ recognition that these issues would be adjudicated through further litigation. For example, Griffin highlighted a pending case before the Court, Fulton v. City of Philadelphia, where officials with a Catholic social service agency are seeking the right to refuse service to LGBTQ adoptive and foster parents. (For Bondings 2.0’s full coverage of that case, click here.)

Griffin explained, too, how wide religious exemptions might also allow discrimination against women and against Black people, a point revealing how interconnected the LGBTQ equality aspect is with other non-discrimination concerns. She wrote:

“These are the detailed religion cases that lie ahead. As [Justice Neil] Gorsuch concludes [in his Bostock opinion], ‘So while other employers in other cases may raise free exercise arguments that merit careful consideration, 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. . .

“Most Americans are usually happy about the passage of antidiscrimination laws, and today are excited about the big win for LGBTQ rights in Bostock.

“In such a pro-civil rights environment, I would not conclude that the religious organizations—including not only churches and synagogues but religious schools, hospitals and universities—enjoy constitutional freedom to discriminate against Blacks, LGBTQs, and women. The Free Exercise Clause, as interpreted in Smith, requires everyone to obey the law. The ministerial exception and the RFRAs give religious organizations exemptions from those laws. And the Fulton petitioners are asking for Smith to be reconsidered so that religions can get more exemptions to widely discriminate against women and LGBTQs.”

Kimberly West-Faulcon

Michael O’Loughlin of America reported on whether Bostock would protect LGBTQ employees at Catholic institutions, which seemed unlikely due to the ministerial exception. He quoted one constitutional law professor, Kimberly West-Faulcon, on the question:

“‘A Catholic school cannot say, “I’m not going to hire you as a teacher because hiring an African American person is contrary to the tenets of our religion,”‘ Professor West-Faulcon said. ‘That is not a permissible religious organization exception to Title VII. The question going forward is whether the previously very limited ministerial exception will become an exception that swallows the rule.'”

This question may come into greater clarity when the Supreme Court rules in two other cases before it this term, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, which concern the definition of a minister for the purposes of a ministerial exception in employment law. A ruling could come as soon as Monday.

The statements of these law professors and other experts make clear that the issues surrounding the rights of employees at religious institutions will not be solved any time soon. However the Court rules in these latter cases, there will likely be challenges. But Jesuit Fr. Thomas Reese proposes another solution: religious conservatives, including Catholic leaders, need to admit they have lost the struggle over LGBTQ equality. He wrote in the National Catholic Reporter:

“Leaders in the Catholic Church and evangelical Christian churches have fought tooth and nail against the expansion of LGBTQ rights, whether in the form of gay marriage, benefits for gay spouses or nondiscrimination in employment.

“Despite spending millions of dollars on media campaigns and legal fees, they have consistently lost at the U.S. Supreme Court, where these cases inevitably are decided. They have also been losing in the court of public opinion, where Americans, especially young Americans, now strongly support LGBTQ rights. . .

“Instead of seeking a compromise, religious conservatives bet all their credibility on the Republican Party and President Donald Trump, who promised to appoint judges who would roll back the expansion of gay rights. This has been a costly bet that has alienated millions of young people from Christianity. It is a bet that failed.”

Thomas Reese, SJ

Noting the many instances when Christians also lost struggles over civil law, such as school prayer and no-fault divorce, Reese concluded:

“It is time for religious conservatives to admit defeat — it may well be past time, in fact, to negotiate good terms for their surrender. They’ve burnt too many bridges along the way to defeat. As a result, liberal activists may well simply crush religious conservatives by mobilizing to end existing religious exceptions designed to accommodate conservative consciences. . .

“Nor do they have to have gay ministers, although who is a minister is open to litigation, which in turn makes disputes more toxic. The Supreme Court has left many issues unresolved in its recent decision against employment discrimination that could come before the court in the future. However, would it not be better to resolve these disagreements through negotiations rather than litigation?”

Reese hopes for compromise would be a path forward, even if he does not think it will happen.

We will have to wait for the Supreme Court’s future rulings in St. James School v. Biel, Our Lady of Guadalupe v. Morrissey-Berru, and Fulton v. City of Philadelphia, in addition to any other litigation working its way through the courts, to see how these complex issues evolve. But whatever the civil law comes to be, Catholic leaders should step back and ask themselves whether they want discrimination against LGBTQ people to continue to be a defining aspect of their ministries.

Robert Shine, New Ways Ministry, July 4, 2020

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