Advocates for religious colleges say Monday’s Supreme Court decision ruling that employment discrimination on the basis of sexual orientation or gender identity is illegal under federal law raises unanswered questions and concerns for them.
The 6-to-3 ruling holds that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, by extension protects gay and transgender individuals from being fired for reasons related to their sexual orientation or gender identity.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” says the opinion, which was authored by Associate Justice Neil Gorsuch, who was appointed by President Trump. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Twenty-two states, plus the District of Columbia, already have laws prohibiting employers from discriminating against employees based on sexual orientation or gender identity.
Some in higher education praised the ruling. Peter McPherson, the president of the Association of Public and Land-grant Universities, issued a statement applauding "this landmark advancement of human rights." Lily Eskelsen García, the president of the National Education Association, a labor organization that includes K-12 teachers as well as college faculty among its membership, similarly praised the decision as a significant step toward LGBTQ equality. "The message is plain and simple: Our LGBTQ educators and students matter. Full stop," she said.
But some religious colleges viewed the ruling with concern.
Some religious colleges have rules against hiring LGBT employees and view sexual activity outside the bounds of a marriage between a man and a woman as grounds for termination. Advocates for religious colleges see their ability to consider sexual orientation and gender identity in employment decisions as matters of religious liberty, and they worry that opening up a new front for individuals to sue religious colleges over their policies on LGBTQ employees under federal antidiscrimination law will make them more vulnerable to lawsuits.
Religious colleges wouldn’t be defenseless in such lawsuits. Title VII includes an exemption for religious employers, including religious educational institutions, giving them the right to prioritize members of their own religion in hiring, and there are other established legal avenues through which colleges can seek exemptions from federal and state antidiscrimination laws. None of the employers whose cases were before the Supreme Court claimed religious exemptions -- one of the employers, a funeral home, unsuccessfully pursued a defense based on religious freedom grounds, but it had not sought review of its religious liberty claim by the Supreme Court -- and Gorsuch wrote that future cases would have to take up questions regarding the applicability of such exemptions.
Gorsuch wrote that “worries about how Title VII may intersect with religious liberties are nothing new,” and he cited the “express statutory exception for religious organizations” written into Title VII. “This court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers,’” he wrote. “And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 … That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.”
“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too,” Gorsuch wrote.
The Council of Christian Colleges and Universities, along with Catholic University of America, a Roman Catholic institution, and Brigham Young University, an institution affiliated with the Church of Jesus Christ of Latter-day Saints, submitted an amicus brief in the case arguing that Title VII’s prohibition on sex discrimination should not be interpreted to include discrimination based on sexual orientation or gender identity. The religious colleges argued in the brief that “altering the settled meaning of Title VII would negatively impact faith-based institutions of higher education in significant and far-reaching ways.” They argued that Congress, not the Supreme Court, "is better suited to address issues concerning LGBTQ rights in employment, while protecting the ability of religious educational institutions to continue pursuing their unique religious missions."
The amicus brief acknowledges the exemptions that apply to religious universities, but it said the scope of the exemptions “is contested among lower courts.” The colleges argued, “Any uncertainty associated with the application of these statutory exemptions to sex-discrimination claims would be even greater if a religious university had to rely on a statutory exemption to protect its religious standards against a claim of LGBTQ discrimination.”
“The particular concerns are how this new clear statement of civil rights for LGBTQ people will intersect with very clear Title VII religious protections,” said Shirley Hoogstra, president of the Council of Christian Colleges and Universities.
Under Title VII, “religious organizations are permitted to give employment preference to members of their own religion,” Hoogstra continued. “Will that include the beliefs of that religion? For instance, let’s say that whether you’re Jewish, Muslim, Christian -- if you believe counterculturally that marriage is between a man and a woman and you prefer to hire people who share that religious belief as your faculty and staff, will you be able to do that in the employment context? We would say yes. That was the purpose of the religious protections. It’s to actually allow belief to be practiced in an unfettered way. But it’s possible that that would be challenged.”
John Garvey, the president of Catholic University of America, said the impact of the decision “remains to be seen. When we wrote the brief, our concern was there’s any number of ways in which this can affect us not only under Title VII but also under Title IX” of the Education Amendments Act of 1972, which prohibits sex-based discrimination in educational institutions. The brief raises questions about potential impacts on student housing, for example. (At least one expert on Title IX expects the Supreme Court decision will lead to an increase in court cases challenging colleges on policies related to gender-separated living facilities and sports teams.)
“The people who signed onto the brief at various Catholic, Lutheran, Presbyterian, LDS, evangelical schools, they’re all pretty serious about the way they run their universities,” Garvey said. “It’s a matter of bringing up young men and women to live their lives in a certain way, and we don’t like to be hypocritical in doing that. So we take seriously the fact that marriage is a sacrament that we administer for men and women and not others, and we take seriously the idea that God created men and women and separate sexes and that’s part of the natural order of things.”
Greg Nevins, the director of the Employment Fairness Project and senior counsel at Lambda Legal, a nonprofit organization that advocates for LGBTQ civil rights, said it’s striking that much of the opposition to interpreting Title VII to include LGBTQ protections came from religious entities in light of the fact that religiously claimed exemptions were not at issue in the specific cases before the Supreme Court.
“The decision would seem to affect them less than many other employers just in terms of the exemptions that already exist in the law,” Nevins said. “They do have a lot of arrows in the quiver, but it is a matter of figuring out which one is appropriate -- or maybe, if none of them are, they have to follow the law like everybody else.”