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What are Faith-Based Employers to do after the Bostock Decision?

In a decision issued on June 15, 2020, and written by conservative Justice Neil Gorsuch, the U.S. Supreme Court declared that it is illegal under federal law for an employer to engage in discriminatory employment practices against someone on the basis of their sexual orientation or gender identity. The 6-3 decision, which consolidates three cases, is called Bostock v. Clayton County. Federal employment civil rights law since 1965 has banned discrimination on the basis of sex. The Supreme Court has now interpreted the protected class of sex to include sexual-orientation and gender-identity discrimination. Many are concerned about how the Court interpreted the law to reach this decision.

Whatever the reasoning for the decision, many faith-based employers have questions and concerns about the consequences of this decision as it relates to their freedom to engage in religious staffing practices. In particular, faith-based organizations that hold theologically conservative beliefs about human sexuality and gender identity now have many unanswered questions about whether they will continue to have the religious freedom only to employ persons wholly aligned with their respective missions.

In this decision, the Court reaffirmed that religious freedom is a central constitutional principle. In the Court’s 2015 Obergefell same-sex marriage decision, and in its more recent Masterpiece Cakeshop decision (2018), the Court stressed that morally conservative views about marriage are to be respected. Yet, in Bostock, employment discrimination on the bases of sexual orientation and gender identity is ruled illegal. What is the consequence for faith-based organizations, houses of worship, and schools that have established conduct codes for staff, students, and faculty? Are these faith-based employers heading for legal challenges if they do not eliminate their conduct codes?

It is vital to recognize that the Court specifically notes that its decision concerns the nondiscrimination obligations of secular, and not faith-based, employers. The majority opinion says that there are additional factors if the employer is faith-based, and it specifically names three protections that religious employers have that secular employers do not— protections that continue into the future.

Faith-based employers need to be explicit about their faith identity and practices

The protections the Court notes are long-standing and strong—and they apply only to organizations that are manifestly faith-based and that make faith-based employment decisions. Thus, faith-based employers must make clear what their faith-based standards are, and what the doctrinal ground is for those standards, and then show how their employment policies and practices are rooted in those faith-based expectations.

That kind of clarity and transparency is vital for legal reasons, and it is vital for missional reasons. How can a faith-based organization be faithful to its animating religious convictions if it has not carefully considered how those convictions should shape its services, its operations, and its internal culture? So, for missional reasons, and not only for legal reasons, faith-based organizations must have clear, consistent, and transparent faith-based policies and practices. The Sacred Sector initiative of the Center for Public Justice and IRFA offers in-depth resources for faith-based organizations seeking to ensure the consistency of their mission commitment in their engagement with public policy, in their organizational practices, and in their communications with the public.

Legal protections for faith-based employers

The Court noted three strong legal protections for the faith-based practices of faith-based employers. First, Justice Gorsuch pointed out in his majority opinion—you need not look to the dissenting opinions—that Title VII includes “an express statutory exception for religious organizations.”

That protection for faith-based employers is what is commonly called the religious exemption or the religious staffing exemption. It provides that a religious organization may make employment decisions based on religion, even though religion is one of the prohibited grounds for discrimination. What does the exemption protect? It has always meant more than simply asking someone whether they belong to a denomination. Religion is more than beliefs in someone’s head or adding one’s name to the membership list of a church or mosque. It extends into living consistently with those proclaimed beliefs.

But there ought to be more clarity about religious staffing than the Supreme Court provided in this decision. There will likely be disputes about when the decision of some faith-based employer is a legal exercise of religious staffing, or when is it an illegal act of discrimination based on sexual orientation or gender identity. Congress must step in to provide more clarity. Faith-based employers should not have to suffer with the uncertainty and delay of court decisions.

However, whatever the employment discrimination dispute might be, faith-based employers can be certain that they will be in a stronger position if their decisions are consistent, not arbitrary, and are based on clearly stated and theologically rooted standards of belief and conduct.

Justice Gorsuch’s majority opinion also notes that faith-based employers have the protection of the Religious Freedom Restoration Act (RFRA). Justice Gorsuch and Chief Justice Roberts, and the four liberal justices who joined them in this decision, say that RFRA “operates as a kind of super statute,” which in some cases can displace “the normal operation of other federal laws,” such as Title VII. This vital religious freedom protection was pushed forward by a broad coalition of religious freedom advocates, religious communities, and civil rights groups, adopted almost unanimously by Congress, and signed into law with strong praise by President Bill Clinton in 1993.

As a third protection, Justice Gorsuch points out that the Supreme Court itself, in its Hosanna-Tabor unanimous decision of 2012, affirmed that the Constitution requires the government not to interfere with a faith-based organization’s choice of its religious leaders, who are sometimes termed its “ministers”. The question of just who counts as a minister is currently before the Supreme Court, so it is unclear at the moment just how far the ministerial exception extends.

But we can be sure that it does not apply to every person on the staff of a faith-based college or school or adoption agency. This is a sweeping protection for the choice of religious leadership and religious teaching. It was created by the courts themselves, impelled by the First Amendment’s religion clauses. By definition, and by the logic of the protection, it cannot apply to every employee of a faith-based organization. A faith-based organization should, indeed, consider the religious qualifications and duties of every employee, but that does not make every employee a “minister” in the sense that the courts mean. It is legally extremely risky for a faith-based organization to claim that all of its employees are ministers, and then count on the ministerial exception to protect its employment decisions.

Faith-based organizations have the extensive protection of the religious staffing exemption in Title VII, the protection created by Congress and upheld in multiple court decisions, and should not claim that the ministerial exception allows them to hire and fire without paying attention to nondiscrimination rules.

So, faith-based employers still have the same protections in the law and under the Constitution that they had before the Bostock decision, and the majority decision states that exact reality, although it declined to work out in detail how the protection operates in the new context it created. To utilize the strong religious staffing protections, faith-based employers must have clear, consistent, and transparent employment requirements and practices—requirements and practices rooted in religious doctrines and not suddenly discovered when an unexpected applicant appears.

Civic Pluralism

Justice Gorsuch’s majority opinion includes a very important statement about our society. Writing for himself, the Chief Justice, and the liberal justices, he says that in making their decision, they were “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution, [because] that guarantee lies at the heart of our pluralistic society.”

Note that sentence: protecting free exercise, including the free exercise of faith-based employers, is a vital Constitutional value that “lies at the heart of our pluralistic society.” Religious freedom is not incidental; protecting religious exercise and faith-based employers is a central task of the Supreme Court. But note, as well, the rest of the statement: we live in a pluralistic society, and while that requires that religious exercise be protected, it does not allow any particular religion or moral scheme to be imposed on everyone.

The Court, in this decision, acted to protect the rights of LGBT employees—but at the same time, and true to our pluralistic society, it strongly reminded everyone that religious employers continue to have the right to hire based on religion.

Yet for pluralism to be the outcome, there needs to be more clarity than was provided in this decision. Congress must revisit Title VII to specify just how religious staffing is fully protected now that SOGI nondiscrimination is the law of the land.

Congress did make an attempt, in 2013. That year, the U.S. Senate voted in favor of a bill, the Employment Nondiscrimination Act, or ENDA, that would have fully clarified the intersection of religious and LGBTQ rights. ENDA included a very strong religious exemption. All of the Democrats voted for it, and 10 Republicans joined them. Here was the clarity and protection faith-based employers needed—adopted by the Senate seven years ago. But the Republican-majority House simply refused to consider ENDA, despite its clear and strong protections. This was a tragic mistake by the House and by religious freedom advocates who counted on a conservative Supreme Court to deliver a victory for conservative employers without enacting LGBTQ protections.

A fitting and lasting solution in our pluralistic America has to protect both faith-based employers and LGBTQ employees. The Bostock decision, with its words affirming the religious staffing rights of faith-based employers, is very good—but it does not have the sharp clarity of ENDA. Congress needs to take up H.R. 5331, the Fairness for All Act, which will give faith-based employers now the clarity that ENDA would have already given them seven years ago.

Moving Ahead with Hope

The Bostock majority opinion’s affirmations of institutional religious freedom protections are striking, even as the absence of a statement of exactly how the new nondiscrimination requirements apply to faith-based employers is deeply troubling. Fear is not the appropriate response. Rather, faith-based employers and religious freedom advocates can best recommit to boldly and consistently teaching, embodying, and practicing the religious beliefs and tenets that are central and fulfilling to them.

Dr. Stanley Carlson-Thies is the senior director and founder of the Institutional Religious Freedom Alliance.

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