Supreme Court justice signals openness to allowing religious beliefs to trump LGBTQ rights in hiring

When the Supreme Court issued its landmark June 2020 ruling banning employment discrimination based on sexual orientation or gender identity, author Justice Neil Gorsuch warned that the court was not reviewing arguments that hiring an LGBTQ worker would violate an employer’s religious beliefs.

These arguments may be coming soon. And some commentators think they will find sympathetic ears with a court that has handed down a series of rulings over the past year exempting institutions affiliated with religion from the rules governing secular bodies.

For example, the court ruled in a California case in July that religious schools were not bound by civil rights laws when hiring and firing teachers. In another California case in February, the court overturned Governor Gavin Newsom’s ban on indoor worship services during the coronavirus pandemic, which were similar to restrictions covering other large indoor gatherings.

And last week, judges unanimously ruled that Philadelphia violated religious freedom by deny foster care funding to a Catholic agency that does not place children in same-sex couples. The ruling was narrow, based on the city’s own rules to exempt foster care agencies from its equal treatment standards, but three judges said the court should go further and exempt religious institutions from all of those requirements. who violate their beliefs.

The Fulton v. Philadelphia decision shows that “this court is interested in finding ways to free religious entities, including employers, from the need to abide by anti-discrimination provisions protecting LGBTQ people,” said Cary Franklin, director of the faculty of the Williams Institute of UCLA Law School. , which focuses on gay and transgender issues. “There are more Fultons coming in various areas.”

Recent rulings indicate that a majority of judges would exempt religious employers and those with religious beliefs from any law protecting lesbian, gay or transgender employees from discrimination, said Steven Green, law professor and director of the Center for Religion. , Law. and Democracy at Willamette University in Salem, Oregon. He said Gorsuch gave that signal in the final passage of last year’s jobs decision.

Judge Neil Gorsuch has signaled his openness to allowing religious beliefs to trump LGBTQ rights when hiring.

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While declaring by a 6-3 majority that the prohibition on sex discrimination, under Title VII of the Civil Rights Act of 1964, protects LGBT employees and job seekers, the conservative justice said the 1964 law could be overturned by a “super-law”, the Religious Freedom Restoration Act of 1993. This law, known as RFRA, prohibits the government from significantly burdening someone’s exercise of religion, Gorsuch noted, unless it is the only way to protect a “compelling government interest.”

“How these doctrines protecting religious liberty interact with Title VII are questions for future cases,” Gorsuch said.

In other words, Green said, Gorsuch was assuring fellow conservatives who view LGBTQ protections as a violation of religious freedom, “I’ll back you, when a better case presents itself.”

One anticipating such a case is John Bursch, a lawyer with Alliance Defending Freedom, a nonprofit conservative religious organization. There is no need for the court to seek a religious exemption to employment discrimination laws, Bursch said, because “the federal government has already created one” with the RFRA.

“The protection of religious freedom can co-exist with members of the LGBTQ community,” Bursch said. He said he doesn’t know of any employers who won’t hire someone because of their sexual orientation, but there are some who would refuse to recognize an employee’s same-sex marriage or provide marital benefits.

The court would rule in favor of the employer, Bursch predicted, just as it did in the 2014 Hobby Lobby case that allowed corporate employers to deny birth control coverage to female employees because of religious objections.

RFRA applies only to federal laws, so a decision that relies on this law to override protections for LGBTQ employees would not affect those employees’ rights under laws in California and other jurisdictions. States. But state and federal discrimination laws would be struck down if the court finds that protecting gay rights violates an employer’s constitutional guarantee of religious freedom.

No such case is yet on the docket for the tribunal’s 2021-22 term, which begins in October. Not all commentators expect one.

“I think the judges understand that most Americans have come to terms with the idea that LGBTQ people have rights and should be protected by law,” said Joel Paul, a constitutional law professor at UC Hastings in San Francisco. He said the court had gradually increased religious institutions’ exemptions from civil rights laws, such as in the cases involving religious school teachers, but “it is difficult for a private employer to argue that there is a duty religion to discriminate”.

Paul noted that the decision in the Philadelphia foster care case was narrowly drafted, applying only to the city and its programs, and drew an outraged response from Justices Gorsuch, Clarence Thomas and Samuel Alito, who wanted the court to go much further. . He said Chief Justice John Roberts, author of the decision, was “clearly trying to create consensus on the tribunal and moderation on the tribunal in order to protect the legitimacy of the tribunal.”

The three justices want the court to overturn its 1990 decision in Division of Employment v. Smith, which said neutrally written laws that apply equally to people of all faiths do not violate freedom of religion. The ruling was written by one of the court’s most conservative members, the late Justice Antonin Scalia, and upheld Oregon’s refusal to grant unemployment benefits to American Indians who were fired for their religious use of peyote.

In response, Congress passed the RFRA with nearly unanimous support three years later, allowing people to challenge laws that interfered with their religious practices and did not serve a vital government interest. Recalling the law’s history – its main sponsor was Sen. Chuck Schumer, DN.Y. — Attorney Jennifer Pizer of the gay rights nonprofit Lambda Legal grimaced at Gorsuch’s description of the 1993 law as a “super-law” that could override LGBTQ legal protections.

It’s true, Pizer said, that a majority of the Supreme Court seems to “embrace the idea that conservative Christians are under attack in this country.” But she said some of those justices may not be willing to abandon past precedents, noting that Justices Amy Coney Barrett and Brett Kavanaugh, both appointed by former President Donald Trump, had signed a separate opinion to Fulton advising against to write a judicial blank check to the plaintiffs. of religious discrimination.

“I don’t know” whether the court will strike down protections for LGBT employees and job applicants, Pizer said, but “we’re doing our best to raise a red flag.”

Bob Egelko is a writer for the San Francisco Chronicle. Email: [email protected]: @BobEgelko