At this point anyone concerned with the future of religious institutions in the United States is already aware of this week’s ruling in Bostock v Clayton County. (Oyez has the key facts; the folks at Volokh Conspiracy put together a summary of the opinion from Justice Gorsuch as well as the dissents from Justices Alito and Kavanaugh.)
Here I want to draw together various considerations related to the case. This is a necessarily complex issue and so this piece is going to read more like scattered observations than a single cohesive essay.
Treating the substantive question at issue separately from the question of religious liberty is reasonable.
If we posit that all people have a right to the material goods needed for life and if we recognize that, like it or not, the primary most people access those goods in our society is via employment, then it seems entirely reasonable on Christian grounds to argue for strong protections of workers from unjust firing.
Indeed, to argue for the right of all employers to be able to fire LGBTQ+ individuals due to their being gay or transgender seems implicitly to argue that on a principled level LGBTQ+ people do not have the right to the material goods needed for life, given that it is very hard or even impossible for many people to access those goods without employment.
Arguing that Title VII covers sexual orientation and gender identity is the wrong way to secure this good.
As Justice Alito noted in his dissent, the argument for covering sexual orientation and gender identity (SOGI) under Title VII’s protections against sexual discrimination relies upon reading contemporary conceptions of sex backwards into older court rulings.
It seems to me that the only way we can coherently argue for Title VII protections covering SOGI is if we draw on Casey to make the point. If a person defines their sexual identity for themselves, per Casey, then I can see how you argue for Title VII protections applying to gay and transgender persons. Title VII defined the principle regarding sex discrimination. Casey defines sexual identity. Bostock simply reads Casey back into the Civil Rights Act of 1964.
Yet I’m not sure Gorsuch’s reasoning actually allows for that sort of argument. Gorsuch’s argument depends on a peculiar sort of essentialism. In particular his argument regarding transgender individuals seems to rely upon a biological realism that would be anathema to many LGBTQ+ activists:
Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Follow Gorsuch’s logic: In order to demonstrate that the dismissal of a transgender employee is based in sex discrimination, he argues that the person’s biological sex continues to be a constitutive part of that person’s identity. I am not sure how to square this with odd form of biological realism with the trans rhetoric about biological sex.
Consider this Scientific American column in which the author argues that biological sex itself is not binary and is inherently fluid. But if biological sex itself is not fixed, I do not see how Gorsuch can argue for Title VII protections of transgender employees in the way that he does here, for he is assuming that there is a stable, fixed thing called “biological sex” that can be constitutive of individual identity—alongside other considerations. Yet that seems to be the very thing many transgender activists reject. Given this particular mode of arguing, I do wonder if Gorsuch has snuck a certain kind of essentialism into the court’s jurisprudence on these matters.
The court tried to punt on religious liberty questions.
Here is another key excerpt from Gorsuch:
We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s pas- sage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a).
This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq.
That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.
Two hallmarks of the Roberts court so far seem to be a keen concern with religious liberty and a desire to give exceedingly narrow rulings on religious liberty, so as to not tie the court’s hands in future cases. This ruling is of a piece with those tendencies, which we have already seen in earlier cases, such as Masterpiece.
Given that, it is likely a mistake to move too quickly to the doomsday scenarios for religious institutions. Certainly, it is possible that this ruling could lead to devastating outcomes for such institutions—Justice Alito made much of this concern in his dissent—but it does not seem anything like a certainty that it will. Questions of religious liberty have been and will continue to be a lingering question for this court. The forthcoming ruling in Our Lady of Guadalupe School v. Morrissey-Berru is going to be significant on this point, as will the court’s understanding of the ‘ministerial exemption,’ as it relates to discrimination.
The primary reason for concern is what the majority opinion’s definition of ‘sex’ will mean in future cases.
The strongest argument for the alarmists is that what the court has actually done in this ruling is define sexual orientation and gender identity as being protected classes in the same way that race or sex already is.
This, for example, would be how Christian colleges could be targeted. If a Christian college has dorms segregated by gender and refuses to house a transgender student with their preferred gender, is that college engaged in an act of discrimination comparable to that already condemned in the Bob Jones ruling?
By the logic of Gorsuch’s opinion, I don’t see how the answer can be anything other than “yes.” And if the answer is “yes,” then it follows that the college in question—as well as any other colleges with similar policies—would be subject to the same fate that Bob Jones was 40 years ago, which would mean the revocation of their access to federal loan monies to finance a student’s education. I have not seen more recent numbers, but as of 2015 the loss of access to such funds would functionally shutter many Christian colleges and universities across the country.
Note that this hypothetical does not concern employment. If the issue in question were the hiring or firing of an employee, it is possible that an expanded view of the ministerial exception could protect Christian colleges and universities. The hypothetical I have raised is not about employment discrimination, but what I guess you could call housing discrimination. Because the court has now ruled that SOGI qualities for protected-class status in the area of employment discrimination, it seems that other forms of discrimination besides employment discrimination will need to be revisited in light of this ruling. And that reinterpretation will be very hard on religious institutions that wish to uphold the traditional Christian teaching regarding sexuality.
Those who were sympathetic to First Things‘s critique of David French last year should feel vindicated.
The best version of Sohrab Ahmari’s infamous critique of David French is that French massively undervalued the degree to which contemporary liberalism is corrosive of religious faith because he also massively overvalues the relative importance of legal victories.
This week is a real-life case study for that critique, given that French’s Sunday newsletter was a celebration of evangelical legal advocacy that hailed the movement as one of the most successful legal movements of the past 40 years. This line in particular did not age well:
Court decision after court decision has held that churches and religious organizations enjoy enormous autonomy (greater autonomy than secular organizations) in hiring and firing employees, and that autonomy is nearly absolute when it comes to hiring and firing ministerial employees.
If Ahmari’s critique is that French fails to understand the precariousness of religious life in America because he fails to see how our current legal and political norms undermine religious life… well, this week made that argument look much stronger.
Never Trumpers should also feel vindicated by this week’s events.
The argument most Trump-supporting Christians made for voting for Donald Trump is that SCOTUS justices are of such immense importance in our nation that we should, essentially, make our peace with supporting any candidate that would promise us good justices.
Even at the time many of us, myself included, on the Never Trump side said that this was no sure thing. Legalized abortion was saved by a Reagan appointee. Obamacare, for those who wanted to repeal it, was saved by a Bush appointee. To this, the only response the Trumpists could offer is that with a Republican justice you at least had a chance of getting someone good. Our response to that, of course, was that ‘the chance of getting a non-catastrophic SCOTUS justice is not nearly enough of a payoff to justify torching our credibility with the nation by supporting a man who has, by his own admission, sexually assaulted many women.’ Character still mattered, we said. And if we give our support to Trump, we will have completely given up our ability to credibly make that argument.
Well, we have forfeited our right to make that argument. And what we got for it was a ruling that may well have the same net effect as the ruling a Democratic-majority court would have given us. Certainly, it’s worth noting that much still remains to be decided with regards to the liberty of religious institutions. It may well be the case that the qualifications provided by Gorsuch, which would likely not have been offered in a 6-3 ruling given by a court featuring two Clinton appointees, will provide essential cover for our institutions in the years to come. But it also may not—and to forfeit an argument as central to Christian social witness as the importance of character in our leaders—for a benefit this thin seems like a horrible trade.
Religious conservatives have work to do.
For too long religious conservatives have acted as if persuasion did not matter, that theirs was a movement that did not need converts. The Trumpists of our number most obviously gave in to this sort of thinking. But the Never Trumpers like French embraced their own version of it by overstating the value of legal triumphs, even as cultural defeats piled up all around us.
The first task before Christian conservatives right now is to consider how it is that we came to this state and how we can go about fixing things. Any attempt at such a work must foreground persuasion as an authentic goal of our movement. Once upon a time stories of hard leftists becoming staunch conservatives were common—Richard John Neuhaus, Whittaker Chambers, Irving Kristol… you know their names. These days the most frequent conversion stories go in the opposite direction as thinkers raised on the American right move to the left as they age and mature. It is hard to blame them when one considers the sorry state of the American right. Indeed, on many matters a conversion to the left seems to me a genuine good. Certainly I expect America’s workers and her land will fare better if the left is ascendant.
Yet ultimately if we believe in the givenness of things and particularly the givenness of the human body, then an ascendant left will not only be bad news for America’s religious conservatives; it will be bad news for America herself.
The first order task for American conservatives today is a rediscovery of confidence in the truthfulness of their principles and, buoyed by such confidence, a bold engagement with the pivotal arguments and intellectual disputes of our day. If the truth is on our side, then this is a struggle that we will eventually win. But if we are too scared to attempt the hard work of persuasion and, instead, choose to keep using power to protect ourselves, via increasingly dubious means, then our movement will continue to shrink, eventually coming to nothing. That fate, though possible and perhaps even probable at this point, is not guaranteed. It is up to us to make sure it does not come to pass.
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[…] from the bench (e.g., Colin Hanson, Joe Carter, Rod Dreher, Russell Moore, Kevin DeYoung, Jake Meador, and Sen. Josh Hawley). This is incorrect, and Christians need to calm […]
Thanks Jake! Appreciate your insight. The Right is truly pathetic these days and I need to own some of that since I jumped on the religious right bandwagon in early 80s. Jumped off since. Makes me appreciate Gillis Harp’s analysis and confirms US is truly in major decline. Implications for our conversation on race too. Will it get better? It may not. https://global.oup.com/academic/product/protestants-and-american-conservatism-9780199977413?cc=us&lang=en&
It’s important to recognize that this is an issue of statutory construction. If Congress doesn’t like what the Court says, Congress is free to pass a law that partially or wholly overrules the Court. Textualists believe that we should look to the four corners of the text, and give that text is broadest reasonable meaning. That’s exactly what Justice Gorsuch did. If Congress disagrees with the Court, it’s free to pass new laws and revise the statute.
Further, religious liberty was not on the table here. The Court doesn’t generally issue rulings on issues that were not properly before it (because a litigant waived the argument). That would undermine the entire certiorari process.
“If the truth is on our side, then this is a struggle that we will eventually win. ”
I think this look toward a day of victory by struggle in the culture war underlies one of the roots of the consternation over this, the Ahmari v French debate, and some support for the Trump admin. That is, that we can and should win. We should make arguments and be an example. But we know how this story ends.
There are three major issues I see here:
Tl;dr: this article spreads an already-hackneyed misconception about Gorsuch’s opinion, misunderstands the political plays left in the game, and underestimates our religious liberty protections.
1) Gorsuch did not redefine “sex”. This has been repeated so many times by conservatives, when the opinion explicitly agrees with Alito on this point.
The operative term is “because of,” which in legal parlance an indicate “but-for” causation: ceterus paribus, would the same thing have happened “but for” the changed factor? Bostok could have been fired “because of” his sexual orientation in the *exact same sense* that he was fired “because” the Allies won WWII, and for purposes of statutory construction he still falls under Title VII. You might think this is a bad causation standard, but that’s an issue of how congress should have made someone’s sex a “motivating factor” in firing, bot a valid criticism of Gorsuch.
2) This was a case about statutory construction, not constitutional law. It can be overturned if congress amends Title VII. If there’s no political will to do that, then probably it was only a matter of time until Title VII encompassed LGBT+ persons anyway.
3) David French’s statement has *not* aged poorly, and this article contradicts itself on this point by conceding that religious liberty questions are separable on this point. This case did not rule about religious organizations, business, or the ministerial exemption- so French can’t have been weong about those. What’s more, the Hobby Lobby case affirmed that businesses-at least privately held businesses-can make religious liberty claims under RFRA. Those lines haven’t been drawn yet, but Gorsuch agreed for Hobby Lobby at the appellate level as a tenth circuit judge.
I agree. Besides, it’s the conservatives that keep forcing things to be resolved in the courts. For the past year, the Senate was free to take up and pass a competing version of ENDA that revised Title VII to exclude SOGI protections. Conservative activists asked the Senate to table the bill in the belief that Bostock would be decided in their favor, and they’d have more leverage to get more of what they wanted in a compromise bill. Well, that bet didn’t work out. Justice Gorsuch ruled in exactly the way that one would expect a textualist to rule. The “because of” clause has always been viewed as setting forth a but-for standard. To be honest, I can’t believe that this wasn’t a 9-0 decision. The dissenters simply let their subjective cultural predilections overrule what the text explicitly says.
Of course, the other reality is that the GOP has no interest in excluding SOGI protections, as that would cause them to lose the votes of suburban women. The reality is that the Religious Right no longer has the political muscle to push its anti-gay agenda through Congress.
I have concerns about the prospects of lgbt activists who can embed themselves in positions of employment at religious institutions, including churches, suing said institutions for creating a hostile workplace because they take an explicit side in favor the traditional Christian ethic. It seems to me if the ministerial exemption cannot be applied to all employees (which to my limited understandinf it can’t), then Bostock has made just about all religious organizations vulnerable to this possibility. If this is the case, then religious groups are on their own, they can only protect themselves by ensuring they don’t employ any such activists, which itself happens to be illegal discrimination per Bostock.
I also have concerns for Christians and all others who dissent from LGBT orthodoxy in secular employment. Are our employees vulnerable to hostile workplace suits if our views become known? Even if we don’t discuss them at work? If so, then not only does anti discrimination law merely not protect us, it is now a hammer used against us, to deny us employment and thus access to the material goods necessary for life.
I posted a reply, but inadvertently posted it as a separate comment.
Organizations whose “purpose and character are primarily religious” are exempted from the application of Title VII, even for filling positions that would not qualify under the ministerial exception. But, to fit within the exemption, the organization must hire in a manner that favors members of its own religious group (e.g., people who hold to its religious creed). If a religious organization routinely hires straight people who reject its religious creed, it may be more difficult for the organization to avoid liability under Title VII if it fires someone merely for being gay.
This could come into play with organizations like World Vision, which partners with both mainline and evangelical denominations. Such organizations may have difficulty enforcing employment bans on gay people if it partners with denominations that do not view non-heterosexuality as a sin.
The ministerial exception principally comes into play in cases like ADA suits, where there is no explicit carve-out for religious organizations. It wouldn’t typically arise in Title VII cases, unless the organization had failed to carry out its hiring practices in a manner that permitted it to rely on the broader exemption already set forth in Title VII.