Supreme Court LGBT decision puts pressure on religious employers, employees

Denver Newsroom, Jun 16, 2020 / 05:56 pm (CNA).- The U.S. Supreme Court’s decision that a federal ban on sex discrimination also protects sexual orientation and gender-identity will have far-reaching consequences for religions, employers and employees because it enshrines a certain view of sexuality and gender into law, according to legal and religious liberty experts.

“We’re going to have future litigation, in many other cases, on whether the anti-discrimination principle or the religious liberty principle trumps the other at the end of the day,” John Bursch, director of legal advocacy and senior counsel at Alliance Defending Freedom legal group, told CNA.

The Supreme Court ruled on Monday that employers cannot fire workers because of their sexual orientation or self-determined gender identity, while dissenting justices argued the Court was legislating from the bench.

Justice Neil Gorsuch wrote the majority opinion for the Court in a 6-3 decision, joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They ruled that protections against sex discrimination in Title VII of the Civil Rights Act also applied to discrimination on the basis of sexual orientation and gender identity.

The decision considered a trio of discrimination cases before the Court, two of which involved employees who said they were fired because of their sexual orientation in Bostock v. Clayton County and Altitude Express, Inc. v. Zarda.

A third case, Harris Funeral Homes, Inc. v. EEOC, involved a man who lost his job at a Michigan funeral home after he had gender-transition surgery and returned to work dressed as a woman. The funeral home had sex-specific dress code policies for employees.

According to Bursch, who argued Harris Funeral Homes’ case before the Supreme Court, the majority opinion “really embraces the modern cultural view of human sexuality and what it means to be male and female,” he said.

“It accepts the precept that human sexuality is really irrelevant. It’s really about how you feel, and what’s in your head, and what you subjectively proclaim yourself to be, your gender.”

“That kind of thinking is dangerous, not only because it maligns those who hold the opposite view, like the Catholic Church, but also because it does great harm to those who hold that view of themselves. Anytime we reject god’s will for ourselves, including the bodies that he gave us, bad things happen,” he added.

Bursch said the opinion holds that disapproving of choices made related to sexual orientation or gender identity is “wrong” or “discriminatory” or “hateful.”

“If people start to imbibe that and start to agree with that, and the law says ‘but there’s an exception for religious beliefs,’ they’re going to start to think that those religious beliefs themselves are hateful, that they are discriminatory, that they are bigoted,” he said.

“The arc of history shows that when you’ve got something that society deems to be bigotry and hateful, it doesn’t last very long. And most of the time that’s a good thing,” he said.

However, he predicted this view will continue to lead some to castigate the Catholic Church and Catholic views on sexuality as being “hateful and bigoted.”

Churches themselves are exempt from Title VII legislation, but religiously motivated employers do not have the same protection. Bursch expects that the Religious Freedom Restoration Act will “certainly help” such employers, but it is unclear how safe they will be.

The U.S. bishops were also critical. Archbishop Jose Gomez, president of the U.S. Conference of Catholic Bishops, said in a June 15 statement that the is “deeply concerned” that the court “effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law.”

“This is an injustice that will have implications in many areas of life,” he said, voicing concern that the court’s opinion erased “the beautiful differences and complementary relationship between man and woman.”

“Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect,” he added. “Protecting our neighbors from unjust discrimination does not require redefining human nature.”

Tom Venzor, executive director of the Nebraska Catholic Conference, echoed Archbishop Gomez.

“The Church’s teaching on sexuality and the human person is and always has been motivated by love,” he said. “Those who feel they have the wrong body, or are attracted to persons of the same sex, are not cast out by the Church. The Church embraces them, seeks to understand their pain and suffering, and offers them a way to self-understanding, healing, and peace.  This is not offered by the bodily autonomy movement that has gained so much purchase in the last several decades. Regardless of any Supreme Court decision, that will continue to be a mission of the Church—institutionally and individually, at Mass and in our conversations, in public and in private.”

The Supreme Court case could have consequences for Christian employees.

Employees with traditional Christian views on marriage and gender identity could “absolutely” be perceived by their employers as a liability risk for creating a hostile work environment that is sexually discriminatory, Bursch said.

“If you had a Catholic employee who in a lunchroom conversation was asked what their views on gender identity were, and they explained John Paul II’s beautiful theology of the body, and the Church’s understanding about what it means to be created male and female and embracing your identity in Christ, not any identity you want to express in yourself, they could be deemed to have created a hostile environment to an employee who feels threatened by that language and disagrees with it. Now all of a sudden that Catholic employee is now on the chopping block”.

“There too we are going to have conflict and religious liberty differences that will have to be litigated in the courts,” Bursch said. “Far from solving any problems, this opens up Pandora’s Box, the next 20 years of court cases.”

Burch cited the case of former Atlanta fire chief Kelvin Cochran, who, in a long firefighting career, was appointed US Fire Administrator by President Barack Obama before working as Atlanta’s fire chief. He was fired after writing a book in his personal capacity that defended Christian views on sex.

Bursch said the Cochran case was “particularly scary to me because it involves non-work conduct.”

According to Bursch, the city of Atlanta considered Cochran’s views bigoted and unwelcome in the workplace and fired him. Though Cochran’s lawsuit ended in a settlement, the city’s approach will likely be used by others, Bursch said.

Some companies circulate surveys asking employees whether they are LGBT “allies.” This can prompt an employee to wonder if this means endorsing same-sex marriage and gender ideology in ways that conflict with his or her religious belief, and to respond “no.”

“You’re being set up then because you could be punished in the future for not getting on board with the program and creating a hostile argument,” Bursch warned.

“This isn’t hypothetical, this isn’t the boogeyman, we’re going to see more of those cases moving forward,” Bursch said. “The goal of those who are pushing this agenda is nothing less than to destroy the church and stop everyone from talking publicly about those issues.

Venzor suggested that business owners will suffer from high uncertainty in the wake of the decision, given that jurisprudence is rapidly changing.

“Business owners must be able to expect predictability from the law and the courts, and not radical, overnight shifts in what the law expects of them as participants in the free market,” he said.

“Bostock already has and will violate the religious freedom of business owners, despite Justice Gorsuch’s claims that the case was not addressing those particular issues. Justice Anthony Kennedy, in Obergefell v. Hodges, underscored the fact that ‘reasonable and sincere people’ have held for millennia and continue to hold onto traditional views of marriage and human sexuality.”

“Yesterday, in Bostock, Justice Gorsuch told those same religious business owners that their religious values have no place in a 21st century ‘woke’ marketplace,” Veznor told CNA.

Justice Neil Gorsuch, writing for the Court’s majority, acknowledged religious freedom concerns for employers in the Court’s decision. Religious organizations and employers do have certain protections from discrimination lawsuits under the First Amendment and the Religious Freedom Restoration Act, which the decision noted.

However, the religious freedom question would be a matter of future consideration since “none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way,” Gorsuch wrote.


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  1. The mutating “civil rights” landscape resembles that of early 20th-century China and post-World War II eastern Europe.

    In “modern” China the peasants (today’s general populace) were broken down by communal sessions of amnesiac self-denunciation punctuated with loudspeaker propaganda (read prime-time talking-head media). And, in Eastern Europe, “the key to understanding—and resisting—the communist system was to recognize that it was a STRUCTURE OF MENDACITY: a ‘WORLD OF APPEARANCES TRYING TO PASS FOR REALITY’” (Weigel, the Final Revolution, 1992, citing Czech leader Vaclev Havel).

    QUO VADIS SCIENCE? Galileo rolls over in his grave. Apart from mere “conservatives” now thrown under the bus, in our grafitti world of “appearances” what is to become of science?

    NURTURE v. NATURE and behavioral addictions—a team at the Institute of Molecular Medicine in Finland finds that the genetic markers have “a very small effect” and, combined, explain “considerably less than 1% of the variance in the self-reported same-sex sexual behavior [….] This MEANS that non-genetic factors—such as environment, upbringing, personality, nurture, our post-1968 experimental-sex culture—are far more significant in influencing a person’s choice of sexual partner, just as with most other personality, behavioral and physical human traits.

    Then this, too: as with other ADDICTIONS, overindulgence in more innocuous digital and virtual reality games, for example, is even found to produce corresponding neuro-chemical and possibly cellular changes in the brain itself (e.g., dopamine which is responsible for reward-driven behavior). And, a recent MRI study strongly implies that a habit of lying (now institutionalized?) suppresses the part of the brain (the amygdala) that responds emotionally to a “slippery slope” pattern of small and then larger lies (Garrett/Ariely/Laxxaro, University College London, in Nature Neuroscience Journal, October 24, 2016; reported in the New York Times, October 25, 2016).

    Yet to come, surely, is another U.S. Supreme Court FATWA dragging the peasants even further back into the 19th or even Galileo’s 17th century. In the 1895 Harvard Law Review Associate Justice Oliver Wendell Holmes Jr. already set the course followed by today’s courtroom lemmings: “. . . I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether. . . .”

    • Peter I hadn’t read your post before I submitted mine, and I’m contented that I similarly perceived “Appearance” as the false substitute for Justice.

  2. If systemic racism is the current social issue we might add systemic sexual discrimination. A systemic phenomenon implies it is totally invasive, that all persons of a certain group are discriminatory whether they know it or not. Justices John Roberts and Neil Gorsuch both with Catholic origins Roberts practicing Gorsuch now Episcopalian unlike Clarence Thomas, Sam Alito, Brett Kavanaugh [Sonia Sotomayor an enlightened exception] by some stroke of intuition perceive what their Catholic counterparts do not. That the latter are systemic discriminators. Some Black intellectuals convinced of systemic racism might call the former enlightened justices guilt driven discriminators who offer platitudes. So convinced are they of racial discrimination that they deny reality, as when Rep James Clyburn refused to give any credence to Brett Baier’s assertion that Pres Trump enacted judicial reform in the First Step Act. That’s indication how deeply ingrained prejudice among conservative and liberal has become in a Nation torn asunder. Discrimination is virtually synonymous with prejudice. A combox comment on the issue stated with the Court’s new non definable definition of sexuality one can be uninterruptedly female one day male the next. ‘Even the learned can lack common sense’. They can also lack jurisprudence because of their conviction they are at heart sexual discriminators, driven by guilt to make amends. American legal scholar Laurence Tribe considers Chief Robert’s a fair minded jurist intending to keep a swing vote balance since Justice Kennedy’s retirement. That is an imposition of personal prejudice, for sake of appearance upon the legal system’s most consequential decisions. Far from Our Lord’s biblical admonition to Moses and Mankind to never make legal judgments motivated by partiality to any person or cause.

  3. The story that never ends. Torn between civil rights and religious freedom we, once again, bring that dichotomy to light. LGBTQ citizens seek protection of under Constitution Amendment number one while the religious right use that law to to advance religious freedom. Can there be common ground to settle this conflict? Perhaps not. So far, the only stance is “stand your ground”. But we must seek out “higher ground”. Interesting that the Catholic Church aligns with religious freedom when they proselytize other non-Catholic church groups to convert. Moreover, Catholic hierarchy defines LGBTQs as an aberration to society. Not much wiggle room. I try to soften my dictates since I am a proponent of human rights. We can only pray for a resolution to this dilemma. If Gays choose their lifestyle, they might be masochist because “coming out” would invite the wrath of society. Castigated and isolated by their “friends”. President Trump issued a recent edict to DOD Secretary Mattis to expel all LGBTQs from the military. Mattis reviewed the performances of a large number of military officers only to find that they were deemed to be excellent dedicated professionals. Trump withdrew his prejudiced order. As our loving savior Jesus told the crowd preparing to stone a prostitute “let he who is with sin, let him cast the first stone”.

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