Does the Recent Supreme Court Ruling on Sex Discrimination Threaten Religious Freedom?

June 22, 2020 | David French
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In the case of Bostock v. Clayton County, the Supreme Court ruled that protections against discrimination on the basis of sex found in the 1964 Civil-Right Act apply to homosexuals and transsexuals as well. That means, for instance, a company cannot refuse to hire someone because he is gay, or transsexual. To the traditionally religious, the ruling, issued last week, raises some serious concerns. Can an Orthodox synagogue be sued for not hiring a gay rabbi? Must conservative Christian schools allow men who identify as women to live in women’s dormitories? David French believes the threat to religious liberty, although not negligible, is nowhere as grave as some fear:

Title VII of the Civil Rights Act of 1964—the same statute at issue in Bostock—contains a provision specifically designed to protect the autonomy of religious organizations. . . . It’s true that this carveout does not allow the religious organization to discriminate on other grounds (such as race or sex), but it does allow them to filter out all applicants who do not share the group’s faith.

Religious employers, [moreover], are completely exempt from nondiscrimination statutes when hiring and firing “ministerial” employees. The ministerial exception may well be the key firewall protecting church from state.

If there’s a single question I’ve received more than any other, it’s this: does Bostock mean that religious schools will now have to alter policies regarding dorm rooms or sexual conduct to comply with federal prohibitions against sexual orientation and gender identity discrimination? The short answer is no. The longer answer is nope, not unless they choose to be subject to Title IX, the federal statute that prohibits sex discrimination in federally funded educational programs and activities.

If anything, French writes, the trend in the federal jurisprudence of recent years has been to strengthen such protections for religious freedom, suggesting that these will survive new challenges as well. He concludes:

[I]t is true that in some respects religious liberty is “under siege.” There are activists and lawmakers who want to push back at multiple doctrines and some radicals even dream of revoking tax exemptions from religious organizations that maintain traditional teachings on sex and sexuality. But if the siege is real, then so is the citadel. People of faith in the United States of America enjoy more liberty and more real political power than any faith community in the developed world.

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