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.