Christian bosses hoping for guidance from the U.S. Supreme Court in dealing with LGBT workers will have to wait. In a 6-3 ruling on Monday, the high court ruled 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.” But the justices did not address what happens if an employer wants an exception to the rule because of his or her religious beliefs about marriage, sexuality, and gender.
In one of the cases argued before the court, a male funeral home employee sued his Christian employers at Harris Funeral Homes in Michigan for not allowing him to dress as a woman at work. Owner Thomas Rost, represented by Alliance Defending Freedom, said he could not in good conscience permit Anthony Stephens (who has since died) to present himself as a woman to grieving clients. The other cases dealt with several individuals who claimed their bosses fired them for their sexual orientation.
Generally conservative Justice Neil Gorsuch and Chief Justice John Roberts sided with the liberal wing of the court to rule in favor of the LGBT employees. In the opinion, Gorsuch wrote that the text of Title VII clearly covered sexual orientation and gender identity. The court, he said, leaned on “straightforward application of legal terms with plain and settled meanings” in deciding that discrimination against an employee at least in part for being homosexual or transgender is always sex discrimination.
But Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas didn’t find the meaning of the original law so clear. In a scathing dissent joined by Thomas, Alito said the average American in 1964 could not have thought that “sex” meant sexual orientation or gender identity.
“The arrogance of this argument is breathtaking,” he wrote. “There is only one word for what the court has done today: legislation.”
In a separate dissent, Kavanaugh accused the majority of “seizing on literal meaning and overlooking the ordinary meaning of the phrase ‘discriminate on the basis of sex.’”
Gorsuch attempted to confine his opinion to the question before the court: whether a business can fire someone for being homosexual or transgender. But dissenters noted that the effects of the sweeping decision could quickly go beyond those constraints.
ADF’s John Bursch, who defended Harris Funeral Homes, laid out some of the ramifications of expanding Title VII protections: “Redefining ‘sex’ to include gender identity and sexual orientation creates chaos and is unfair to women and girls in athletics and many other contexts.”
Alito issued a similar warning in his dissent, writing that the decision threatened freedom of religion, freedom of speech, and personal privacy and safety. Courts could use it, he said, to sanction biological males using women’s locker rooms and restrooms, even in elementary and secondary schools—already a fraught issue in many states. The ruling also could affect whether a man who identifies as transgender can compete in women’s sports. The ripple effects could reach into housing, healthcare, and employment by religious organizations.
In the opinion, Gorsuch pointed to the Religious Freedom Restoration Act—which prohibits the government from substantially burdening the free exercise of religion without a compelling reason and requires it to use the least restrictive means in doing so—as a “kind of super statute” that might supersede Title VII in some cases.
But that, per Gorsuch, is for another day. Or, more likely, for many other days before many other courts.