The U.S. Supreme Court heard oral arguments earlier this week in two cases that will consider whether a part of the Civil Rights Act of 1964 prohibits employment discrimination for L.G.B.T. people. At issue is whether the part of the law known as Title 7, which bans disrcimination based on sex, also applies to sexual orientation and gender identity. Some lower courts have ruled in recent years that it does. But lawyers for the Trump administration as well as some religious groups, including the U.S. Conference of Catholic Bishops, have said it does not.
The court is considering two cases. One is about sexual orientation, and the case involves a fired skydiver in New York, who has since died, and a fired county government worker in Georgia. Aimee Stephens, a fired funeral home director in suburban Detroit, is at the center of the case about gender identity. The Trump administration has reversed the Obama administration’s support for the workers.
How faith-based employers could be affected by a ruling in favor of L.G.B.T. employees remains to be seen. More than 20 states and Washington, D.C., have passed job protections for L.G.B.T. people. During oral arguments, Chief Justice John Roberts noted that many of these provisions “include an exemption for religious organizations.” He wondered if the court would be extending similar protections if it ruled in favor of the plaintiffs. David Cole, a lawyer for the American Civil Liberties Union, maintained during oral arguments that existing protections would remain intact.
Attorney Pamela S. Karlan, who argued on behalf of two of the fired employees, said during oral arguments the issue at stake is not whether an employer holds a belief that homosexuality itself is immoral, but whether the employer hires or fires L.G.B.T. people based on that belief. But Noel Francisco, the U.S. solicitor general, said using Title 7 to bar employment discrimation against L.G.B.T. people “would expand the scope of liability without giving any consideration to those religious liberty interests on the other side of the balance.” He said a change should be made by Congress, not the courts.
Chief Justice John Roberts noted that many of these provisions “include an exemption for religious organizations.” He wondered if the court would be extending similar protections if it ruled in favor of the plaintiffs
Richard Garnett, a professor of law and political science at the University of Notre Dame, told America that he believes a ruling in favor of the plaintiffs would eventually have implications for Catholic hospitals and institutions of higher education.
“It is a more serious concern than the lawyers for the claimants acknowledged in yesterday's oral arguments,” he said.
He pointed to debate over the Equality Act, a bill now before Congress that would expand the Civil Rights Act to include sexual orientation and gender identity. Opponents of the bill argue that it reins in religious liberty protections for faith-based employers, like schools and hospitals. Mr. Garnett said a ruling in favor of the plaintiffs may end up producing similar results, but he said legislation may incorporate changes more quickly than a narrow court decision.
“Even though these cases that were argued yesterday are not directly about the autonomy rights of religious institutions, and they’re not directly about the hiring rights of religious employers, there’s no principled reason why this interpretation wouldn’t then take hold in other contexts,” he said.
In recent years, a number of Catholic institutions have faced criticism for firing L.G.B.T. people, particularly teachers at Catholic schools. In many of those instances, church leaders have said they have the right to hire and fire based on religious beliefs because their teachers are considered ministers. A number of Catholic colleges and universities, however, including College of the Holy Cross, Loyola University Chicago and Santa Clara University, include sexual orientation and gender identity in their nondiscrimination policies.
Following oral arguments, the U.S. Conference of Catholic Bishops released a statement arguing that a ruling that expands the Civil Rights Act to bar employment discrimination against L.G.B.T. people “would threaten religious liberty.”
“Words matter; and ‘sex’ should not be redefined to include sexual inclinations or conduct, nor to promulgate the view that sexual identity is solely a social construct rather than a natural or biological fact,” the statement said.
The head of Network, a national Catholic social justice lobby, Simone Campbell, S.S.S., said in a statement to America that she hopes the court will rule in favor of the fired employees.
“Justice demands that every member of our human family is protected from hate and discrimination,” she said. “It is the role of our government to protect all of our people. The Supreme Court must rule in favor of the civil rights of all LGBTQ+ Americans.”
Luke Goodrich, vice president and senior counsel of the Becket Fund for Religious Liberty, a nonprofit law firm, told reporters before the Supreme Court’s term began that if the court views these employee cases as discrimination, there will likely be new lawsuits and “massive liabilities with churches, schools and religious organizations” that expect their employees to follow certain standards.
He said there are exceptions for those in ministerial roles with a religious function. But no matter how these exemptions are interpreted, there is likely to be a lot of confusion, he added.
A decision by the court is expected by early summer 2020.
A ruling for employees who were fired because of their sexual orientation or gender identity would have a big impact for the estimated 8.1 million L.G.B.T. workers across the country because most states do not currently include workplace discrimination protections for them. An estimated 11.3 million L.G.B.T. people live in the United States, according to the Williams Institute at the U.C.L.A. law school.
Material from the Associated Press and Catholic News Service was used in this report.