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After Bostock

Is the Supreme Court’s expansion of the Civil Rights Act a liberties setback or a liberties apocalypse?

After <em>Bostock</em>

The Supreme Court in Washington (Susan Walsh/AP)

Like some other pastors, David Howell is wrestling with the impact of Monday’s Supreme Court decision extending civil rights protections to gay and transgender persons. Howell, executive pastor of the multicampus Crossroads Fellowship in Raleigh, N.C., said that while his church supports fair treatment of all people in the workplace, he has concerns about “the right of churches to maintain a staff that aligns with moral and spiritual convictions.”

In its 6-3 ruling in Bostock v. Clayton County, the court found that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex.” Justice Neil Gorsuch, who penned the opinion, broke ranks with conservative colleagues, saying that even if no one in 1964 would have viewed the word “sex” in this expansive manner, it didn’t matter, as sex was inevitably a part of discrimination based on sexual orientation or gender identity.

Gorsuch sought to limit the ruling to the employment situation before the court, yet court watchers say transgender activists will inevitably push to apply the case’s rationale in other situations. In a critical dissenting opinion, Justice Samuel Alito had sharp words for Gorsuch’s rationale, calling it “arrogant” and “wrong.” “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” said Alito, adding that the decision “is virtually certain to have far-reaching consequences.”

Susan Walsh/AP

Samuel Alito (Susan Walsh/AP)

Alito laid out a laundry list of areas potentially impacted by the ruling, including hiring decisions by religious organizations, transgender use of bathrooms and locker rooms, transgender males' participation in women’s sports, housing of those of opposite biological sex as college roommates, requiring healthcare providers to provide sex reassignment surgeries against their consciences, and compelling teachers to use pronouns of students’ choice to address students. The decision is rippling through the Christian community, though the full consequences are as yet unknown.

According to Larry Taylor, president of the Association of Christian Schools International, the ruling’s impact on hiring policies in the approximately 2,400 schools they represent—all of which teach the Biblical view of marriage—is not yet clear. The Colorado-based organization plans to give additional guidance to schools in the near future.

Schools, churches, and other religious organizations may be helped by twin cases pending before the Supreme Court, St. James Catholic School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, that focus on the firing of teachers from two California Catholic schools.

Argued last month, the cases address the scope of the “ministerial exception” under the First Amendment, a doctrine that bars the government from interfering in employment decisions made by religious organizations, regardless of the basis of the decision. Yet while the doctrine may shield organizations from decisions about ministerial staff and those who teach religion, questions remain as to whether it applies to employees not directly involved in teaching religion.

Churches and religious nonprofits may also seek refuge in Section 702(a) of the Civil Rights Act, which says Title VII shall not apply” to a religious corporation” regarding the employment of individuals of a particular religion to perform work connected with … its activities.” Yet whether the concern for religious autonomy at the heart of Section 702(a) trumps a religious organization employee’s claim of sex discrimination under Title VII remains to be seen.

So is this a religious liberty apocalypse? “We’re going to see about that over the next several years,” said Luke Goodrich, senior counsel for Becket, a religious liberties law firm. Goodrich ticked off other important protections for religious organizations and churches that remain, including the “expressive association” doctrine, which may apply to both religious and nonreligious organizations, as well as the Religious Freedom Restoration Act, a law that requires government to have a compelling interest and use the least restrictive means when substantially burdening religion. 

Rooted in the free speech and freedom of assembly clauses of the First Amendment, the expressive association doctrine protects an organization from being compelled to send a message with which it disagrees. That was at the heart of the court’s 2000 decision in Boy Scouts of America v. Dale, which held that applying New Jersey’s public accommodations law to require the Boy Scouts to admit a gay scoutmaster violated the Boy Scouts’ First Amendment right of expressive association. Even though the Boy Scouts has changed its position on sexuality since Dale, the doctrine remains viable, said Goodrich.

Pat Eaton-Robb/AP

Chelsea Mitchell (Pat Eaton-Robb/AP)

The ruling’s impact is not all about religion, either. Connecticut athlete Chelsea Mitchell would have won the 2019 state high-school championship in the women’s 55-meter indoor track competition, but she didn’t receive the gold medal because two biological males took first and second place. With men who identify as women seeking to participate in women’s athletics, there is a chance that Bostock’s rationale may bleed over into Title IX, which has a similar bar on discrimination based on sex.

The statute was intended to increase female participation in sports, yet Kate Anderson, senior counsel for Alliance Defending Freedom, said transgender males have unfairly argued that they should be able to compete with women. “Biology is not bigotry,” said Anderson, who argues gains made by women by virtue of Title IX will be lost if physiologically different biological males are allowed to compete.

It’s important to speak up, said Anderson. “I am encouraging people of faith to speak truth about their beliefs on marriage and sexuality, on what it means to be male and female. The more we talk about these matters, the more we can bring about understanding.”

Steve West

Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

Comments

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  • Janet B
    Posted: Sat, 06/20/2020 09:26 pm

    Though I found the name of the three plaintiffs in this case, I cannot find when they were fired or who they were working for at the time.

    Can anyone help me out here?

  • PN
    Posted: Sun, 06/21/2020 02:13 pm

    Here is the first case:

     

    In the summer of 2010, Rosanna Orellana (“Orellana”) and her boyfriend, David Kengle (“Kengle”), went skydiving at Altitude Express. App. 11-12, 144-45. Each purchased tandem skydives, in which the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client so that the instructor can deploy the parachute and supervise the jump. Donald Zarda was Orellana’s instructor.1 Id. at 144-45. At some point during the experience, Zarda informed Orellana that he was homosexual and “ha[d] an ex-husband” Id. at 12, 145. After a successful skydive, Orellana told Kengle that Zarda had inappropriately touched her in a flirtatious manner and disclosed his sexual orientation in an effort to excuse his otherwise inappropriate behavior. Id. at 12. Zarda alleges that he often informed female clients of his sexual orientation to allay any awkwardness that they may have felt about being strapped to a man for a tandem skydive. Id. at 145. Upon hearing about Zarda’s inappropriate touching, Kengle called Altitude Express and its owner, Ray Maynard, to complain. Id. at 12. Zarda, who had a history of similar complaints of inappropriate behavior, was terminated shortly thereafter. Id. at 145.

     

    Second Case:

    Harris Homes is a small, family-owned funeral business that has helped its clients mourn the loss of loved ones since 1910. App. 90a. Thomas Rost is its current president and owner.

    Rost hired Respondent Stephens as a funeral director in 2007. App. 93a–94a. During Stephens’s six years of employment, it is undisputed that Stephens “presented as a man.” Id. at 6a. All relevant employment records—“including driver’s license, tax records, and mortuary science license— identif[ied] Stephens as a male.” Id. at 93a–94a. Nothing during Stephens’s employment with Harris Homes, as Stephens testified, would have suggested to anyone at work that Stephens was “anything other than a man.” Id. at 200a. In a July 2013 letter, Stephens first told Rost that Stephens identifies as female. App. 8a, 94a–95a. “Stephens ‘intend[ed] to have sex reassignment surgery,’ and explained that ‘[t]he first step . . . is to live and work full-time as a woman for one year.’” Id. at 8a. Stephens’s plan was to present as a woman and wear female attire at work. Id. at 95a. 5 A few weeks later, after seeking legal counsel, Rost told Stephens that the situation was “not going to work out.” App. 9a, 96a. Because Rost wanted to reach “a fair agreement,” he offered Stephens a severance package. Id. at 203a. Stephens declined it.

     

    Third case:

    Petitioner Bostock began working for the Respondent Clayton County in January 2003. Id. at 27. For over ten years, he advocated passionately for the interests of at risk children as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. Id. He received favorable performance evaluations and was given primary responsibility for the Clayton County Court Appointed Special Advocates program (“CASA”).

    In May 2013, during a meeting of the Friends of Clayton County CASA Advisory Board at which Mr. Bostock’s supervisor was present, at least one person disparaged Mr. Bostock’s sexual orientation and his participation in the Hotlanta Softball League. Id. One month later, on June 3, 2013, Mr. Bostock was fired. Id. at 28. The stated reason for his termination was “conduct unbecoming of a county employee.” Id. Mr. Bostock maintains that he never engaged in any misconduct and Clayton County’s representation to the contrary is pretext for discrimination against him on the basis of his sexual orientation. Id.

     

    These are all taken from the Supreme Court filings. Hope that helps.