WASHINGTON—Lawmakers have filed bills to make sexual orientation and gender identity protected classes in the workplace during every session of Congress since 1994, but none have made it to a president’s desk. Now, as Justice Samuel Alito wrote in a dissenting opinion this week, the U.S. Supreme Court has done much of their job for them.
In a landmark ruling on Monday in Bostock v. Clayton County, Georgia, the high court decreed 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.” While the court expanded the definition “sex,” it did not address other major issues, including religious liberty in the workplace.
“I personally think the decision shows us that if you’re socially conservative and care about religious freedom, you’ll want to engage in the legislative space to protect religious liberty as much as possible,” said Tim Schultz, president of First Amendment Partnership.
Schultz is one of the leading proponents of “Fairness for All,” a legislative approach based on the 2015 “Utah Compromise.” The measure in Utah changed the state’s employment and housing anti-discrimination law to include lesbian, gay, bisexual, and transgender persons while including some religious exemptions. It made exceptions for churches, religious organizations, and private speech but not on-the-job speech or Christian business owners with more than 15 employees.
Since then, the debate over a similar effort at the federal level has split Christian conservatives without drawing the LGBT support needed to get a bill eventually signed into law.
In December 2019, Rep. Chris Stewart, R-Utah, introduced a Fairness for All bill, but it attracted only eight co-sponsors, all Republicans. In a statement released this week, Stewart said the Bostock decision “only highlights the importance of my Fairness for All Act.”
Last year, House Democrats passed the Equality Act, sweeping legislation that would make sexual orientation and gender identity (SOGI) protected classes on par with race, religion, and ethnicity while stripping most protections for religious people from federal law.
Fairness for All supporters have cast their bill as an effective alternative to the Equality Act and argued that if Congress did not act, the courts would—and now they have.
But critics of the Fairness for All approach maintain the courts will likely preserve more religious freedoms than the legislative process would.
“I’m not sure Fairness for All is a better vehicle now than it was before,” said Jamison Coppola, legislative director of the American Association of Christian Schools. And with more and more states adopting SOGI laws, LGBT advocacy groups have fewer reasons to come to the negotiating table.
But supporters of Fairness for All insist that incentive remains for both sides.
“Bostock doesn’t extend to federal public accommodation protections,” said Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance. “In key areas, Congress still has to act—so there remains a rationale for [Fairness for All] on the LGBT side.”
Regardless, legislative action seems highly unlikely. Democrats still back the Equality Act, and most Republicans were either supportive or silent on the Bostock decision. Sen. Josh Hawley, R-Mo.—a former law clerk for Chief Justice John Roberts—went so far to call Bostock the “end of the conservative legal movement.”
Greg Baylor, a higher education attorney for the religious liberty law firm Alliance Defending Freedom, said he still views Fairness for All with skepticism.
“The impossibility of passing Fairness for All was confirmed for all the world to see last December when the bill was introduced and Democrats and the powerful LGBT advocacy organizations condemned it in no uncertain terms,” he said. “Bostock doesn’t change that.”