Some Supreme Court terms promise to be momentous. This one actually was. There were decisions about presidents and their immunity from prosecution, opinions issued about limitations on the right to access abortions and birth control, precedential-setting cases on the breadth and nature of Native American property rights. But to my mind, the two most consequential decisions handed down over the past few weeks involved equally important, often contradictory principles: the right to define who we are, and the right to define how we will worship.
On June 15th, in a 6-3 ruling that included conservative Justices John Roberts and Neil Gorsuch (who penned the opinion,) the high court held that an employer who fires an employee based solely upon their sexual orientation or gender identity violates the Constitution. In Bostock v. Clayton County, the court was presented with the following issue: did the Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on gender, also cover discrimination based upon sexual orientation or gender identification? Answering that question in the affirmative, Justice Gorsuch concluded that “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
This is a landmark decision for the LGBT community, as well as a somewhat unexpected one, particularly when you consider that the individual who wrote the majority opinion was appointed by President Donald Trump, who had campaigned on a promise to support conservative jurisprudence and conservative nominees to the bench. He believed that in Neil Gorsuch, he had found just such a man. The fact that Gorsuch would not only support the rights of LGBT employees against the administration (which argued vociferously against the expansion of Title VII,) but also write the majority opinion, is noteworthy. Of course, justices have gone AWOL in the past, most famously Earl Warren who was appointed by President Dwight D. Eisenhower and ended up pushing the court far to the left in the 1960s. There is also the notorious example of Harry Blackmun, who was appointed by Richard Nixon and went on to write the majority decision in Roe v. Wade.
But the difference with Gorsuch is that his decisions appear to be motivated by his vision of the law, and not by political or social ideology (unlike the other two judges above). Gorsuch believes that the courts construe the laws — they do not write them. That is what seems to undergird his position that Title VII was meant to encompass discrimination against sex and gender, regardless of how that presents itself. According to his reasoning, Congress meant to proscribe discrimination based on a specific factor, and that firing someone based upon that factor is illegal. He clarified that point when he wrote that “When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.” Words that might have been written by Antonin Scalia, the justice he replaced.
Gorsuch believes that the courts construe the laws — they do not write them. That is what seems to undergird his position that Title VII was meant to encompass discrimination against sex and gender, regardless of how that presents itself.
In an almost prescient nod to what would happen a month later, Gorsuch mentioned that some might look at the decision in Bostock as infringing on the rights of religious organizations, who might want to avoid hiring somebody due to their sexual orientation, and would be prevented from doing so under his ruling. He wrote, somewhat reassuringly to his critics, that “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society… But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
Fast forward 23 days, a nanosecond in the universe of Supreme Court jurisprudence. On July 8th, the court chose to address Justice Gorsuch’s rumination about the intersection of the Free Exercise Clause of the First Amendment, and what he and the majority had just done in Bostock, by ruling in Our Lady of Guadalupe School v. Morrissey-Beru and the companion case of St. James School v. Biel that a religious school (in this case two Catholic schools) is not bound by anti-discrimination policies in its firing and hiring practices, if the employee occupies a “ministerial” function.
In other words, if a person is a religion teacher or executes duties which make them closely representative of the particular faith tradition at the school, he or she may be bound by the precepts of that religion, according to religiously-affiliated employers. Consequently, if they violate those precepts in their private conduct, they can legally be terminated.
This decision was even more unanimous than the Bostock ruling, with seven justices (including liberals Breyer and Kagan) joining with the majority. Justice Samuel Alito’s opinion broadened the First Amendment protections already enunciated by the court four years earlier in Hosanna Tabor Evangelical Lutheran School and Church v. EEOC. In that earlier case, the court held that an employee who was an ordained minister of the Lutheran church could not sue under the Americans with Disabilities Act because she was an actual minister of the church. In Guadalupe, Alito noted that the so-called “ministerial exception” should not be limited only to people who are actually ordained, but that it could apply to anyone who represents the faith traditions of the church:
“Religious education is vital to many faiths practiced in the United States…. In the Catholic tradition, religious education is ‘intimately bound up with the whole of the Church’s life.’ Catechism of the Catholic Church 8 (2d ed. 2016).” Under canon law, local bishops must satisfy themselves that “those who are designated teachers of religious instruction in schools . . . are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.” In other words, an explicitly religious mandate in employment brings with it a new level of rights for employers.
Alito noted that the so-called ‘ministerial exception’ should not be limited only to people who are actually ordained, but that it could apply to anyone who represents the faith traditions of the church.
This would seem to create a contradiction with the ruling in Bostock, but it is one that, as noted above, was already anticipated by Gorsuch. While the plaintiffs in the earlier case worked for employers who were not affiliated with any religion, the plaintiffs in Guadalupe and its companion case St. James worked for Catholic schools. The court was required to split the baby, so to speak, and they came up with what I believe to be a Solomonic solution. While gay or transgender employees may not be protected by federal anti-discrimination laws if they seek employment with religiously-affiliated employers — as long as these positions are “ministerial” in nature, as it where — neither will they be subject to unlawful and arbitrary termination in the vast majority of employment venues.
Equally important, religious schools will not be forced by the government to employ individuals who are living negations of their faith teachings. The wall between church and state protects the free exercise of religion, as well as prohibiting the establishing of a state creed.
This past term presented men and women of good faith and divergent philosophies with two compelling dilemmas. Based upon their decisions in Bostock and Guadalupe, I think the Court did a magnificent job resolving them.
Christine Flowers is an attorney and lifelong Philadelphian. @flowerlady61
Correction: An earlier version of this piece stated that the employee in the Hosanna Tabor case could not sue for age discrimination, not under the ADA.