Two decisions this month by the Supreme Court offer a workable compromise in the bitter conflict between LGBT rights and religious liberty. It decided in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects lesbian, gay, bisexual and transgender people from job discrimination. It also decided in Our Lady of Guadalupe School v. Morrissey-Berru that anti-discrimination laws cannot limit religious schools’ ability to choose teachers of religious subjects.
The court, in short, is working toward a regime with broad anti-discrimination protection, which however does not apply to religious groups within their own enclaves. That would be a good solution. Legislatures are, for the most part, too polarized to make that happen. The Supreme Court is performing a useful role.
Many religious conservatives are frightened by the gay rights movement. One of their most prominent writers, Rod Dreher, has expressed his concern that the law would soon “start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology.” After the Title VII decision, he wrote, “...there is no safe place to hide from what’s coming.” David French reports that conservative Christians “have never felt more isolated and culturally vulnerable.”
Fear over preserving religious rights
This kind of fear is a big part of the reason why white evangelicals supported, and continue to support, Donald Trump. While campaigning in January 2016 he declared, “There is an assault on Christianity...there's an assault on everything we stand for and we’re going to stop the assault.” The ruthless use of political power was the only answer: “We’re going to protect Christianity, and I can say that. I don’t have to be politically correct.”
In the Republican primaries, evangelicals rejected their coreligionists in favor of someone who promised to be a tough guy, and then remained loyal to him even after he was caught on tape admitting to sexually abusing women. Hillary Clinton got only 16% of their votes, the lowest of any Democratic presidential nominee in U.S. history. Had she received Barack Obama’s 2012 percentage of the white evangelical vote in Michigan and Florida, she would be president.
Religious conservatives wondered, after the Title VII decision, whether there was any safe place for them anymore. Our Lady of Guadalupe is the beginning of an answer. Within their own religious institutions, the court held, the First Amendment’s religion clauses mandate substantial protection: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith,” the state may not intervene in the school’s choice of teachers.
The good news for religious schools is even broader than that, and some of it comes from Bostock, which conservatives are worried about. The court held that the law protects gay and trans people because discrimination against them always involves sex discrimination, which the statute expressly forbids: “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” It enforced the plain words of the statute.
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Sen. Josh Hawley, R-Mo., reasonably asks: “What will this rewrite of Title VII mean for churches? What will it mean for religious schools? What will it mean for religious charities?” The answer is there in the statute. Title VII also permits religious associations, corporations, educational institutions and societies to make employment decisions based on religion in a range of ways that other entities may not. Religious organizations may hire only individuals “of a particular religion,” where religion is defined to include “all aspects of religious observance and practice as well as belief.”
A safer world for LGBT people
The same adherence to the law’s plain text that supported the result in Bostock also applies to Title VII’s protection of “all aspects of religious observance and practice as well as belief.” All means all. So the answer to Sen. Hawley’s question — and keep in mind that I’m a very liberal law professor, who filed a brief on the winning side in Bostock — is that religious institutions can demand that everyone who works for them conform to the rules of conduct taught by that religion.
Compare the proposed Equality Act, a comprehensive anti-discrimination statute for LGBT — reaching not only the employment discrimination at issue in Bostock, but also housing, public accommodations, adoption, foster care and education. It passed the House of Representatives in May 2019. It includes only the sparsest religious accommodations: churches get to discriminate, but not other religious institutions such as schools. An alternative with broad religious exemptions, like the Fairness for All Act, has no Democratic cosponsors. Neither side will budge, and nothing is likely to pass.
But the court is finding a decent compromise within existing law. Within religious institutions, conservatives will indeed be able to enforce their own standards, even if those standards are out of step with the rest of the country. Meanwhile, this world is a safer place for lesbian, gay and trans people. That’s not a bad place to end up.
Andrew Koppelman is a professor of law at Northwestern Pritzker School of Law and author of the recently published "Gay Rights v. Religious Liberty? The Unnecessary Conflict." Follow him on Twitter: @AndrewKoppelman
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This article originally appeared on USA TODAY: Supreme Court finds way to protect conservative values and LGBT people