Supreme Court decision on L.G.B.T. discrimination sets up religious liberty clash

Activists and supporters block the street outside the U.S. Supreme Court in Washington on Oct. 8, 2019, as it hears arguments in three major employment discrimination cases on whether federal civil rights law prohibiting workplace discrimination on the "basis of sex" covers gay and transgender employees. (CNS photo/Jonathan Ernst, Reuters)Activists and supporters block the street outside the U.S. Supreme Court in Washington on Oct. 8, 2019, as it hears arguments in three major employment discrimination cases on whether federal civil rights law prohibiting workplace discrimination on the "basis of sex" covers gay and transgender employees. (CNS photo/Jonathan Ernst, Reuters)

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.

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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.

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“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.

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“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.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
JR Cosgrove
1 month 1 week ago

Will the Supreme Court rule that you can not discriminate against people who are not LGBT?

I am making a point that groups who are singled out seem to be exalted and favored and become a cause with the end result that the non group are treated differently not the same. LGBT are only the latest and I am sure not the last in identity politics.

Rob Schroeder
1 month 1 week ago

This sort of response adds nothing to the discussion. A court ruling that rules against discrimination based on sexual orientation obviously applies to...all Americans.

Tim O'Leary
1 month 1 week ago

Rob - It is actually an important point that Cosgrove makes. As people are further and further divided into groups and subgroups, those left behind are implicitly or explicitly discriminated against, in many ways. For example, most non-discrimination laws are later used for some kind of affirmative action or selective process. If Irish-Americans or Croatian-Americans or Latter Day Saints, or straight men were be explicitly included in non-discrimination laws (and there is ample historical evidence of discrimination of these groups from other groups) it would be harder to exclude them from any Affirmative action program. For example, the "white privilege" prejudice, while not yet in law, is an emotional appeal to demand more from this specific (and soon to be minority) group of society, based solely on skin color. We are Balkanizing our society into smaller and smaller groups (e.g. count the number of vanishingly small genders that claim reality today). Nothing good can come of this.

rose-ellen caminer
1 month 1 week ago

White privilege is a very real thing now.If one day Whites are no longer privileged but become a discriminated group, then we will cross that bridge when we get there. Today saying you can shoot someone on fifth avenue and get away with it, is a statement expressing White privilege attitude.

Tim O'Leary
1 month 1 week ago

Rose-ellen - notice how this sounds so similar to some past segregationists, who would offer some possibility of racial equality in the future (when they show they deserve it), just to justify their racist laws today. What possible test could one come up with that would justify the end of a racial test? It is amazing how ingrained racist categorization is on the left today.

rose-ellen caminer
1 month 1 week ago

What you are saying is ;how dare you challenge white privilege.Getting rid of white privilege is a slippery slope. Are you suggesting that white privilege will disappear on its own (when they show that they no longer deserve it)?

JR Cosgrove
1 month 1 week ago

Just what is white privilege? It doesn't seem to work in a lot of the world?
I can think of white liberal privilege, in academia, in the press, in the arts, in popular entertainment. Wait, in the last, a lot of people of color are making a fortune in entertainment.
The real privilege is being born into a family with two parents. That is available to anyone of any color. Highest percentage is among Asians who are I believe considered people of color.

Tim O'Leary
1 month 1 week ago

Rose-Ellen: there you go again - blaming the victim for their skin color. I can see you now, on your porch, saying to a dirt poor woman in Appalachia "you are privileged and don't you dare question my prejudice based on your skin color." What exactly is "white" that triggers your discrimination? Does it only apply to Americans? What about Spanish in Mexico or Portuguese in Brazil (just 4% of the slave trade went to the US and Canada)? Or just those who had colonies (excludes the Irish and Eastern Europeans)? Or all Caucasians (including Indians and Afghanis)? Can you get out of the epithet if you convert to Islam or any religion but Christianity? Does it matter if you come from an oppressed region like Croatia or Bosnia or parts of Russia? SHould there be a genetic test? If this makes you uncomfortable, then listen to your inner voice.

rose-ellen caminer
1 month 1 week ago

Pointing out that there is white privilege is not an epithet of white people.You sound like you are nostalgic for when whites ruled the world and the sun never set on the British empire; for what was wrong with that!

Tim O'Leary
1 month 1 week ago

Rose-ellen - I have no love for the British Empire, and am not British. I am also morally opposed to any race-based prejudice. Don't you see that believers in white supremacy and white privilege ("the white man's burden") are two sides of the same supremacy coin. They both believe that it is a white man's natural responsibility to fix the world, and define people by their skin color. It is unjust and immoral. Please consider stopping it.

J Jones
1 month 1 week ago

Tim, this is the oddest and most leading representation of white privilege I have ever encountered. It does rival your continued effort to derail discussions of white privilege and racism targeting African Americans in the US by distracting to racial conflicts in non-US contexts.

rose-ellen caminer
1 month 1 week ago

White supremacy and white privilege are not two sides of the same coin.White supremacy is the belief that whites are superior.White privilege is an of shoot of that but is not that. White people who are not white supremacist benefit nevertheless from white privilege whether they want to or not.The dirt poor Appalachian white person[ a stereotype that one] who wins a contest to go to New York for Thanksgiving Macy's parade, and decides to take a cab,and gets the cab before the Black person does;that is white privilege. I don't know for sure but I suspect that if if a call comes in in the middle of the night to the police about a neighbor's door being open, the cop will not shoot the person in their home, at the sight of her if she is white.That is white privilege. Black Lives Matter.
Just because white privilege exists , it does not mean it is absolute; there are poor marginalized white people who never get breaks, there are whites in prison for crimes they never committed.
The white man's burden came from the Europeans belief that they were obligated to spread Christianity throughout the world.Their perceived higher calling justified atrocities that led to the concept of white supremacy.

Tim O'Leary
1 month ago

Rose-Ellen & JJ: If white privilege were only illogical and idiosyncratic, it would not be so bad. But, as my examples above show, the militant progressives are trying to get these definitions into law. It is all so-counterproductive and just perpetuates race-based thinking. No wonder we are over half a century since MLK Jr. and racial discord is only getting worse. There are privileges in all societies, by wealth, appearances (a woman is chosen for a lift over a man, better dressed over badly dressed, long v. short hair, cleancut vs. nose tattoo, etc), by sex (women approaching 60% of college undergraduates), by looks (attractive people often given more attention), by youth, etc. Its part of life and cannot be eradicated fully. But, given US history, all Americans against racism should have consciously adopted a race-blind attitude, especially in our laws. That they are unwilling to do so just shows how ingrained racial categorization is - especially on the left today. We would have far less racism in America today if Democrats had stayed with MLK's ideal, and skin color would just be a pigment of the imagination. Sadly, one cannot see a media story where race is not highlighted, just perpetuating the problem. Please try to understand the damage this is doing. It's not making anyone feel or act better and not protecting anyone.

J Jones
1 month ago

Rose-Ellen - I appreciate this comment. Tim and others here persust in using the term "white man's burden" in an ahistorical way. They are ridiculing but, in their zeal to distract from discussions of racism and white privilege, they strip the phrase of its meaning: the missionary or civilizing "burden" of imperialist nations and peoples referenced in Kipling's poem "The White Man's Burden(https://www.merriam-webster.com/dictionary/white%20man's%20burden ; https://sourcebooks.fordham.edu/mod/Kipling.asp; https://en.wikipedia.org/wiki/The_White_Man%27s_Burden). Thanks for addressing that.

Thanks, too, for clarifying the terms white supremacy and white privilege. I think you articulated it very well.

Tim O'Leary
1 month ago

Sorry JJ - To be more up-to-date, I should have said "white woman's burden" since that seems to be the coalition on this blog.

Frank Elliott
1 month 1 week ago

Nothing good came of adding religion to the Civil Rights Act of 1964. Now they demand that any “sincerely held religious belief” can act as a basis for special rights for religious people to discriminate. there are over 1,000 different Christian denominations. Nothing good can come from a license to fabricate excuses to discriminate against people, while those discriminating are protected under the Civil rights act of 1964.

Tim O'Leary
1 month 1 week ago

Frank - Religious freedom is in the Constitution, so it trumps any congressional laws. Sincerely held religious belief is the bedrock of freedom, and goes beyond the 30,000 Protestant denominations. It includes Jews, Muslims, Hindus, etc. LGBTQIA ideology has taken possession of the minds of the left, so much that they want to upend the whole history of natural law, religious rights of all people and constitutional law.

Judith Jordan
1 month 1 week ago

Tim O'Leary:
Segregationists used to say the same kind of thing when people fought for civil rights for blacks.
Take any law that people want to discriminate against some group; take that group’s name out and replace it with “black” and you can see instantly if you are trying to discriminate.

Tim O'Leary
1 month 1 week ago

Judith - it seems that you are agreeing with me that prejudice against someone for their race, skin color or ethnic group is wrong, no matter what the color. I grew up in a family that supported Martin Luther King, Jr. He became a hero to me and I am flabbergasted that the proponents of a race-based judging are now mostly on the Democratic wing of politics.

Frank Elliott
1 month 1 week ago

Tim, the rights protected in the Civil
Rights Act go beyond government interference in religion and the establishment clause. The religious rights in the Constitution protect you from the Government, they don’t compel private citizens to serve you.

Moreover the right to disbelieve is essential to freedom of religion.

Tim O'Leary
1 month ago

Frank - I completely agree. Anyone who comes to believe in the mission of a religious institution should be permitted to leave. If someone working for an Amish construction company converts to Catholicism, then he should be permitted to leave the Amish company, not stay and undermine their mission. The government should stay out of it unless there are no other non-Amish opportunities for that person's skill set. Otherwise, a nefarious sect could try to ruin any religious denomination by signing up and then rebelling against the mission. Imagine if a bunch of Christians joined PP and then worked to stop abortions from within, claiming discrimination. it might be the quickest way to shut PP down if a court said PP must hire pro-life Christians.

Judith Jordan
1 month ago

Tim:
PP does have lots of Christians working for them.

Tim O'Leary
1 month ago

Perhaps, but they would be bad Christians. The Nazis also had so-called Christians work for them.

Ben U
1 month 1 week ago

Anti-discrimination laws protect us all.

Michael Bindner
1 month 1 week ago

Yes. Straight bartenders would have a cause of action if fired by a gay bar for their gender identity.

J Jones
1 month 1 week ago

Absolutely.

Tim O'Leary
1 month 1 week ago

Michael - what if they were fired because of white privilege?

J Jones
1 month 1 week ago

Tim, what do you imagine "being fired because of white privilege" would look like? Can you give us a scenario?

And then can we get back to the focus of the article: the cases before the SCOTUS.

Tim O'Leary
1 month ago

Simple - a downsizing of a company decides it needs to selectively fire or hire one racial group to increase diversity. There have been a few cases hitting the news of fire fighters or other public workers pretending to be black so they would be eligible for a promotion, only to be found out and fired. This pathological response can only happen if they think their employers are judging a promotion in part on skin color.

J Jones
1 month ago

This is pure nonsense.

Tim O'Leary
1 month ago

JJ - Denial is not just a river in Egypt
NYT Article: "Philip and Paul Malone are fair-haired, fair-complexioned identical twins who worked for the Boston Fire Department for 10 years. Last month both were dismissed when a state agency ruled that they had lied on their job applications: They had contended they were black. The finding has sent shock waves through the city government, touching off charges that employees of other agencies may have misused plans designed to remedy past discrimination against black and Hispanic workers."
NY Post: "Why I faked being black for med school" by Vijay Chokal-Ingam (2015) - "The data suggested that an Indian-American with my grades (3.1 GPA) and test scores (31 MCAT) was unlikely to gain admission to medical school, but an African-American with the same grades and test scores had a high probability of admission."
WSJ: "Former engineer James Damore sues over discrimination"
NYTimes https://www.nytimes.com/1988/10/09/us/boston-case-raises-questions-on-misuse-of-affirmative-action.html.
NYPost: https://nypost.com/2015/04/12/mindy-kalings-brother-explains-why-he-pretended-to-be-black/
https://www.wsj.com/articles/former-google-engineer-who-wrote-diversity-memo-files-suit-1515440507

J Jones
1 month ago

The nonsense is your suggestion that legislation is faulty in essence and execution because a handful of people believed they were entitled to achieve their personal goals by committing fraud. I am getting worried, Tim. You have implied that worker conduct is not bound by job description and role (the front desk worker at a medical clinic providing medical education and counseling because of her religious beliefs) and now you object to employment law because of the existence of individuals who believe they are entitled to obtain what they want by committing fraud.

These arguments are utter nonsense, Tim.

Tim O'Leary
1 month ago

Nonsense JJ - I do not endorse the fraud, but show it as evidence these individuals thought they would need the "privilege" of being a different color to get a fair deal. It is your imagination that only a handful of people think the system is rigged against them - how many votes did Trump get?

J Jones
1 month ago

Tim, I believe that you are selling Trump supporters short. Very few of the Trump supporters I know (my best friend, some family/colleagues/friends) ------ very few of them believe that the country is rigged against them as white people. The few who do believe that are also the people I know who use racial and/or xenophobic slurs. Most of the white Trump supporters I know seem to believe the system is fair. That is, they don't seem to believe that the system benefits anyone unfairly. I disagree with them, AND I don't believe they would agree with your premise that these perpetrators of fraud are representative of Trump supporters in any meaningful way. You are engaged in nonsense here, Tim.

Jessica O
1 month 1 week ago

I feel your question is pure troll but I will treat you as if you were sincere. If the supreme Court rules that the law protecting people from discrimination by sex (it already exists) applies to any gender and sexuality, then it would still apply to males, females, and strait folks. So yes it means you could not be fired for being cis. The argument is that the protections should include also trans and other lgtbq folks and not just the male/female metric.

Your job should not care who you are boinking at home unless it's your boss, which is likely a no-no.

Edit: also as the article pointed out, religious groups already have protections in place. But Joe Smoe that runs a roof repair business should not be firing people because they are black, pregnant, Christian, or because they are trans. They might have to give the pregnant lady a desk job if she can't climb on roofs past a certain week, but the only firing offenses should be things like, shoddy work, ignoring safety rules, being nasty towards co-workers or customers, ect. That's why the non discrimination laws exist in the first place. You sound white and cis, so chillax, someone being protected doesn't make you less protected. It is not a zero sum game. (I mean being a jerk towards other people is a fireable offense, so if you fall into that category might want to adjust your work ethic).

J Jones
1 month 1 week ago

Hi Jessica, wonderfully and accurately stated.

Tim O'Leary
1 month 1 week ago

Jessica - are you responding to Michael about the bartender? You are being a bit of a jerk yourself. The article is all about religious people losing protections they already have in place. This is not about Joe Smoe firing someone for what they do privately at home, but what they do that affects the work. For example, would it be wrong to fire someone who got Nazi tattoos, or who joined an anti-roofing organization (possibly a future gender subset). If a person took a teaching job at a Catholic school and told people the Catholic Church was a false Church, or that it was wrong on adultery or abortion or whatever, it should be able to fire that person.

Judith Jordan
1 month 1 week ago

Tim O'Leary:

If we forbid discrimination against the LGBT community, how would that discriminate against religion?

Tim O'Leary
1 month 1 week ago

Judith - The problem is, as Beto boldly said to great applause in a Democratic debate, the laws are intended primarily to go after Christian Churches and schools who stay true to the teaching of Scripture, including Catholicism. See here https://www.theatlantic.com/ideas/archive/2019/10/beto-orourkes-pluralism-failure/599953/

JR Cosgrove
1 month 1 week ago

Never thought my comment would generate some of these responses.

JOHN GRONDELSKI
1 month 1 week ago

Not just a religious liberty clash, but a right of conscience clash....

Frank Elliott
1 month 1 week ago

It is a violation of my conscience to subsidize Catholic institutions because they abuse the rights of lgbt people. Catholics have had special rights under federal law since the Civil Rights Act of 1964 and have used those protections to persecute even celibate gay people. All of this is a violation of Equal Protection under the Fourteenth Amendment,

Tim O'Leary
1 month 1 week ago

Frank - you are not subsidizing Catholic institutions. The government doesn't tax organizations that are not-for-profit. Not taxing is not subsidizing. But, I could come around to having all religious organizations and all charities lose their tax breaks, as long as all NGOs, schools and universities and libraries (many of which are anti-Catholic anyway) lose the same tax breaks.

Judith Jordan
1 month 1 week ago

Tim O'Leary:
Except for some religious schools, what schools, universities, and libraries are anti-Catholic?

Tim O'Leary
1 month 1 week ago

Any school that permits LGBT clubs but prevents Christian or Catholic clubs is obviously discriminating. See just one example here https://www.foxnews.com/us/university-evicts-christian-club-over-leadership-faith-requirement. For a longer article on the extent of the bullying, see here https://thefederalist.com/2018/03/09/universities-keep-kicking-christian-groups-off-their-campuses/

Frank Elliott
3 weeks 4 days ago

That club is in trouble for excluding non-Christians. Gay clubs that exclude heterosexuals or Christians would meet the same fate. So your martyr routine is bullshit.

Jessica O
1 month 1 week ago

You have the right to not marry another man John, you have the right to think it's foolish or gross to marry another man. but to try to say that you have the right to fire somebody because they do believe in marrying another man is folly. When the weakest in our society are protected we're all protected. Now if you're afraid about your right to criticize or belittle them, or mock them because of their sexual orientation, it's not because of this law that you would be fired is it would be because you are creating a toxic work environment. Nobody including other straight people want to work with the toxic jerk. You see how there's a difference they're your personal views versus how you treat others. much like when you're a believer interacting with other people that believe in different religions you don't have to treat them with toxicity, you let them live their own life it's not you in their bedroom. If a man wears a dress it doesn't hurt you, it's not contagious either.

J Jones
1 month 1 week ago

Keep writing, Jessica.

Jessica O
1 month 1 week ago

You have the right to not marry another man John, you have the right to think it's foolish or gross to marry another man. but to try to say that you have the right to fire somebody because they do believe in marrying another man is folly. When the weakest in our society are protected we're all protected. Now if you're afraid about your right to criticize or belittle them, or mock them because of their sexual orientation, it's not because of this law that you would be fired is it would be because you are creating a toxic work environment. Nobody including other straight people want to work with the toxic jerk. You see how there's a difference they're your personal views versus how you treat others. much like when you're a believer interacting with other people that believe in different religions you don't have to treat them with toxicity, you let them live their own life it's not you in their bedroom. If a man wears a dress it doesn't hurt you, it's not contagious either.

Tim O'Leary
1 month 1 week ago

Jessica - If there ever was a toxic work environment, it has got to be PP. They even hand out toxins. Can Planned Parenthood refuse to hire a faithful Catholic who wants to wear a cross at the desk? What if the Catholic claims to be gay? Should Mennonite carpenters be required to keep some one who converts to Catholicism and drives a car to work? My point is that the freedom of association (also in the first amendment) used to protect minorities from unreasonable interference, and the current proliferation of protected classes is overturning these protections for reasons that have not been really thought through.

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