The State of Religious Liberty After Bostock, Little Sisters, & Our Lady of Guadalupe
In June 2020, the Supreme Court delivered a victory for LGBTQ+ rights in Bostock v. Clayton County. In this case, the Court ruled that firing an employee for being gay or transgender violates the prohibition on discrimination “because of … sex” in Title VII of the Civil Rights Act of 1964. [1] While many Americans rejoiced over this victory, others were concerned about the ruling’s implications for religious liberty. [2] [3]
But Bostock was not the Court’s only decision this term that affected religious liberty. On July 8, 2020, the Court released two rulings that were major victories for religious freedom: Our Lady of Guadalupe School v. Morrissey-Berru and Little Sisters of the Poor v. Pennsylvania. [4] These cases blunted the impact of Bostock and paved the way for a compromise between the views of LGBTQ+ rights advocates and those of religious conservatives. This attempt to balance LGBTQ+ rights with religious liberty is likely to provide enhanced protection for gay and transgender employees of for-profit businesses, while continuing to leave religious non-profits ample discretion to hire in accordance with their values and mission.
Although Bostock was a victory for LGBTQ+ rights, Justice Gorsuch noted in the majority opinion that “the free exercise of religion… lies at the heart of our pluralistic society.” [5] Assuaging concerns about the impact of Bostock on religious freedom, Justice Gorsuch noted three sources of protection for that liberty: Title VII’s religious organization exemption, the First Amendment’s protection of religious institutions against employment discrimination lawsuits by their “ministers,” and the Religious Freedom Restoration Act of 1993 (RFRA). [6]
The Court strengthened the second of these protections just one month later in Our Lady of Guadalupe School v. Morrissey-Berru. This case considered the ministerial exception, a doctrine grounded in the First Amendment’s Free Exercise and Establishment Clauses that gives churches and similar organizations the autonomy to fire certain important employees for any reason—regardless of anti-discrimination laws. [7] In a seven to two decision, the Court affirmed that the ministerial exception applies to school religion teachers because they are entrusted “with the responsibility of educating and forming students in the faith.” [8] The exception would apply even if the teacher lacked a distinctly religious job title, primarily taught secular subjects, and did not identify as a practicing member of the religion they taught. [9]
Little Sisters of the Poor v. Pennsylvania was another, albeit narrower, win for religious liberty. The Court held that the Trump administration had discretion under the Affordable Care Act (ACA) to exempt employers with religious and moral objections from the Obama administration’s contraceptive-coverage health insurance mandate. [10] Because the majority ruled on ACA grounds, it did not fully reach the more consequential issue for religious liberty: the proper interpretation of RFRA, which the employers had invoked as a defense against the contraceptive mandate. RFRA states that the federal government “shall not substantially burden a person’s exercise of religion,” unless the burden furthers a “compelling governmental interest” and is “the least restrictive means of furthering” that interest. [11] Although the majority only briefly discussed RFRA, it did reaffirm that the government “must accept the sincerely held… objections of religious entities.” [12] In other words, religious believers (including corporations, which are considered “persons” under RFRA) deserve substantial deference when claiming obstruction of their religious exercise. Moreover, Justice Alito’s concurrence asserted that the exemptions granted by the Trump administration were not only permitted, but required, because the mandate violated RFRA. [13]
Given the expansive reading of RFRA implied by the Court in Little Sisters, and made explicit in the concurrence, RFRA may provide some protections for entities with conscientious objections to employing LGBTQ+ persons. Whether RFRA applies to lawsuits brought by private parties against an employer is still an open question, but the Court likely would hold that it does apply. [14] Courts may determine that preventing commercial businesses from discriminating based on sexual orientation or gender identity is a compelling governmental interest that overrides religious liberty, as the Supreme Court has already suggested is the case with racial discrimination. [15] But it is not clear that the same analysis would, or should, extend to religious non-profits. Indeed, they are more deeply religious in character than their for-profit counterparts, which may hold religious principles but generally prioritize economic profit. [16] Under RFRA, the government cannot rely on generalized interests but, instead, must demonstrate a compelling interest in applying a rule to “the particular claimant whose sincere exercise of religion is being substantially burdened.” [17] Hence, even if there is a compelling interest as a general matter, it does not necessarily follow that there is a compelling interest in eradicating every single instance of discrimination, including within non-profit religious institutions.
As for Title VII’s religious employer exception, it states that Title VII shall not apply to a religious organization when it chooses to employ “individuals of a particular religion.” [18] Under a narrow reading of the exception adopted by some courts, Title VII “does not exempt qualifying employers from Title VII’s prohibitions on any form of discrimination other than preferences for coreligionists, even where such discrimination is religiously motivated.” [19] [20] That argument has some support in legislative history, but it seems squarely inconsistent with Title VII’s plain text. [21] And under Bostock’s strict textualist method of statutory construction, the text is what matters. [22]
Importantly, the statute clarifies that the term “‘religion’ includes all aspects of religious observance and practice, as well as belief.” [23] Therefore, in seeking to employ “individuals of a particular religion,” a religious school may fire or decline to hire a person on the grounds that the person flouts the school’s religious tenets, even if the person is a self-professed member of the faith. Further, as religious liberty scholar Douglas Laycock explains, “it shouldn’t matter that the employer is discriminating on the basis of some other protected category. If the decision is based on religion, it should be protected.” [24] Indeed, Bostock’s reference to Title VII’s “express statutory exception for religious organizations” would make no sense if the Court did not think the exception protects some employment decisions based on sexual orientation or gender identity. [25]
Ultimately, religious non-profit organizations will likely continue to have the right to make employment decisions based on sexual orientation and gender identity, notwithstanding Bostock. Thus, Bostock is likely to primarily affect for-profit employers. Yet, even some religious for-profit employers may receive protection under the Title VII exemption. [26] To be sure, the Supreme Court once suggested otherwise in dicta. [27] But Title VII itself provides no definition of what makes an organization “religious,” unlike other federal statutes. [28] And even if for-profit businesses were categorically unable to use the Title VII exemption, they may seek relief under RFRA, although as suggested above their prospects for success are unclear at best. While post-Bostock religious freedom protections will likely end up being largely limited to non-profits, that will still provide significant protection for religious conservatives.
In 2019, several congressional Republicans introduced the Fairness for All Act, which generally prohibits anti-LGBTQ+ discrimination but includes significant religious freedom protections. [29] As is often the case with compromises, that bill has proven objectionable to many on both sides. [30] But the Supreme Court’s latest decisions suggest that the Court may ultimately achieve judicially what the Fairness for All Act proposed to do legislatively: prohibit discrimination by most for-profit businesses while offering significant protections for religious non-profits. [31] After Bostock, Guadalupe, and Little Sisters, that outcome seems likely. Changes in the Court’s membership could certainly alter things, but, for now, religious liberty is very much alive and well. [32]
Edited by Lorenzo Thomas Garcia
[1] Bostock v. Clayton County, 590 U.S. ___ (2020).
[2] Sarah Pulliam Bailey, Christian Conservatives Rattled After Supreme Court Rules Against LGBT Discrimination, The Washington Post (June 15, 2020), online at https://www.washingtonpost.com/religion/2020/06/15/bostock-court-faith-conservatives-lgbt/ (visited July 16, 2020).
[3] Rod Dreher, Bostock & SOGI: A Christian Waterloo, The American Conservative (June 19, 2020), online at https://www.theamericanconservative.com/dreher/bostock-sogi-waterloo-magnitude-of-christian-defeat-religious-liberty/ (visited July 16, 2020); Bostock, 590 U.S., at ___-___ (Alito, J., dissenting) (slip op., at 48-51).
[4] Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020); see also Espinoza v. Montana Dept. of Revenue, 591 U.S. ___ (2020).
[5] Bostock, 590 U.S., at ___ (majority opinion) (slip op., at 32); see also id at ___, n. 2 (Kavanaugh, J., dissenting) (slip op., at 3, n. 2).
[6] id at ___ (slip op., at 32); cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2602, 2607 (2015), foreshadowing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).
[7] Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 176, 188-189 (2012); see also Our Lady of Guadalupe, 591 U.S., at ___ (Sotomayor, J., dissenting) (slip op., at 20).
[8] Our Lady of Guadalupe, 591 U.S., at ___, ___(slip op., at 26-27).
[9] id at ___-___ (slip op., at 21-26); cf. id at ___-___ (Sotomayor, J., dissenting) (slip op., at 15-19).
[10] Little Sisters, 591 U.S., at ___-___ (slip op., at 14-18); see also id at ___ (Kagan, J., concurring in judgment) (slip op., at 3).
[11] Religious Freedom Restoration Act of 1993, 42 U.S.C. §§2000bb–1(a), (b); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688-693 (2014); Will Foster & Curtis Herbert, The Little Sisters Case & the Religious Freedom Restoration Act — Part I: Setting the Stage, High School SCOTUS (July 6, 2020), online at https://highschoolscotus.wordpress.com/2020/07/06/monday-july-6-2020/ (visited July 26, 2020).
[12] Little Sisters, 591 U.S. at ___ (majority opinion) (slip op., at 20).
[13] id at ___-___ (Alito, J., concurring) (slip op., at 5-19); cf. id at ___-___ (Ginsburg, J., dissenting) (slip op., at 13-21).
[14] Shruti Chaganti, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 Va. L. Rev. 343 (2013).
[15] Hobby Lobby, 573 U.S., at 733; see also EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 595 (6th Cir. 2018).
[16] Christopher D. Cunningham, Douglas Laycock: How Will New LGBT+ Rules Affect Religious Liberty?, Public Square Magazine (June 17, 2020), online at https://publicsquaremag.org/questions-and-answers/douglas-laycock-how-will-new-lgbt-rules-effect-religious-liberty/ (visited July 27, 2020).
[17] Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 430-431 (2006).
[18] Title VII, 42 U.S.C. §2000e–1(a).
[19] Randolph D. Moss, Application of the Coreligionists Exemption in Title VII, 31 (Oct. 12, 2000), online at https://www.justice.gov/olc/page/file/936211/download (visited July 28, 2020).
[20] Martin Lederman, Why the Law Does Not (and Should Not) Allow Religiously Motivated Contractors to Discriminate Against Their LGBT Employees, Religious Freedom Institute (June 30, 2016), online at https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/why-the-law-does-not-and-should-not-allow-religiously-motivated-contractors-to-discriminate-against-their-lgbt-employees (visited July 25, 2020).
[21] Section-by-Section Analysis of H.R. 1946, the Equal Employment Opportunity Act of 1972, reprinted in Subcommittee on Labor of the Committee on Labor and Public Welfare of the United States Senate, Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972), at 1845.
[22] Bostock, 590 U.S., at ___ (slip op., at 2); see also Thomas v. Reeves, No. 19-60133 (5th Cir. 2020) (Willett, J., concurring in the judgment) (slip op., at 44) (quoting Bostock, 590 U.S., at ___, ___ (slip op., at 2, 4); id at ___ (Alito, J., dissenting) (slip op., at 43)).
[23] Title VII, 42 U.S.C. §2000e(j).
[24] Cunningham, supra note 15.
[25] Bostock, 590 U.S., at ___ (slip op., at 32).
[26] Mark L. Rienzi, God and the Profits: Is there Religious Liberty for Moneymakers?, 21 Geo. Mason L. Rev. 59, 89-95 (2013); see also Ira C. Lupu & Robert W. Tuttle, “Religious Exemptions and the Limited Relevance of Corporate Identity,” in The Rise of Corporate Religious Liberty 394 (Zoe Robinson et al. eds.) (2016). Cf. Cunningham, supra note 15 (quoting Laycock).
[27] Hobby Lobby, 573 U.S., at 716.
[28] Cf. Community Renewal Tax Relief Act of 2000, 42 U.S.C. §290kk(c)(6); see generally Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2010).
[29] Fairness for All Act, H.R. 5331, 116th Cong. (2019); cf. Equality Act, H.R. 5, 116th Cong. (2019).
[30] Andrew Koppelman, Fairness for All, A Good Idea Nearly Everyone Hates, Balkinization (December 6, 2019), online at https://balkin.blogspot.com/2019/12/fairness-for-all-good-idea-nearly.html (visited July 5, 2020).
[31] Daniel Bennett, LGBT Rights Ruling Isn’t the Beginning of the End for Religious Liberty, Christianity Today (June 17, 2020), online at https://www.christianitytoday.com/ct/2020/june-web-only/bostock-gorsuch-supreme-court-ruling-religious-liberty.html (visited July 23, 2020).
[32] See also Fulton v. City of Philadelphia, No. 19-123; Little Sisters, 591 U.S., at ___, n. 10 (majority opinion) (slip op., at 19, n. 10).