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Don't be fooled: this Supreme Court is intent on stripping LGBTQ rights
Conservatives, including Gorsuch and Roberts, proved this week their allegiance is with religious extremists
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Many people were heartened when the Supreme Court ruled last month that Title VII of the 1964 Civil Rights Act banned employment discrimination based on sexual orientation and gender identity — with conservative Justice Neil Gorsuch writing the majority decision, and fellow conservative Chief Justice John Roberts joining the majority.
But it took less than a month for both justices to show, in two cases handed down last week, their continued dangerous adherence to the agenda of theocratic forces hellbent on making their religious beliefs the law of he land.
Let me be clear: There’s no question that the 6-3 ruling for LGBTQ equality, Bostok v. Clayton County, Georgia, was a hard-fought victory and a landmark decision. But much of the media heralded it — and the fact that the majority opinion was written by Gorsuch —without enough analysis concluding that this wasn’t a new day at the court and surely didn’t represent a transformation by hardline conservatives on the court. As I noted after the ruling, the cases ruled upon came up to the Supreme Court because of years of work at the Equal Employment Opportunity Commission during President Obama’s administration under commissioners he appointed.
More than that, Gorsuch was being consistent to his theory of textualism, his belief that the Constitution or laws should be read as the text reads now, not as meant in the time they were written. Protecting people on the basis of “sex,” as the statute stated, didn’t mean to include LGBTQ people when it was written — something Gorsuch even noted. But because it has that meaning now, that’s how it should be understood.
But Gorsuch qualified his majority opinion by stating that “religious liberty” concerns could narrow it.
“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,” Gorsuch wrote, explaining that none of the employers’ cases before the court raised religious liberty concerns. “[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases, too.”
And then this week, less than a month later, came another decision by the Supreme Court on employment protections, Our Lady of Guadalupe School v. Morrissey-Berru, allowing religious schools to discriminate against teachers — or perhaps any employees — they deemed as being in a “ministerial” role. And it was clearly pointing to what Gorsuch meant in Bostok when he talked about “religious liberty” and “future cases.”
The Supreme Court has always upheld that churches and religious institutions have a right to hire and fire those in ministerial positions based on their religious beliefs. But as Mark Joseph Stern wrote at Slate, “[N]o one seriously argues that the government should be able to tell a church it can’t fire its priest. But religious institutions employ a lot of people, and not all of them play a key role in the overarching spiritual mission.”
This ruling could allow a religious school to determine that anyone — a math teacher, perhaps even a receptionist — is in a ministerial role, and all the school has to do is provide a fig leaf: make sure that the individual performs one or two duties that are religious in nature, like leading children in prayer. As Stern notes:
Consider, for instance, the two plaintiffs here. Kristen Biel was a fifth grade teacher at a Catholic school that classified her as a lay employee. It did not require these employees to have religious training, and she had none. Biel primarily taught secular subjects; her chief religious duty was joining the class in twice-daily prayer. Agnes Morrissey-Berru was also a fifth grade teacher at a different Catholic school. Like Biel, she was considered a lay employee, taught secular subjects, and had no religious training. She also led her students in a brief prayer once a day.
Justice Samuel Alito in his majority opinion dramatically expanded what is considered a ministerial role. Ian Milhiser writing at Vox explained that “one upshot is that many teachers — perhaps all teachers in religious schools with good lawyers — are no longer protected from discrimination,” and noted how institutions could very easily deem many employees as being in a ministerial role:
Consider, for example, a 2015 manual called Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits, which was published by the Southern Baptist Convention and a leading Christian-right law firm. That manual advised religious employers to assign religious duties to low-level employees in an attempt to bring them under the ministerial exception.
It’s not hard to see how this case will affect gay, lesbian, bisexual and transgender teachers and other employees at religious institutions that are anti-LGBTQ, and those cases are already on their way up through the courts. While Justice Stephen Breyer and Justice Elena Kagan joined the majority in this decision, their history strongly suggests that though they saw these particular cases as falling under the ministerial exception, they would defer to the Bostok ruling as well as the Obergefell marriage equality decision in defending the employment rights of an LGBTQ person.
But Gorsuch, who is a “religious liberty” fanatic, and Roberts, who wrote the stinging dissent in the Obergefell ruling (which he read from the bench for emphasis), have given indication they would see it differently. Gorsuch’s qualification on religious liberty in Bostok would likely come into play.
And in the Morrissey-Berru case this week, Gorsuch joined a radical concurring opinion written by Justice Clarence Thomas, that went much further than Alito’s majority opinion, which Thomas called merely “a step in the right direction.” Thomas essentially argues that the Constitution requires that courts always defer to religious institutions’ claims on what is a ministerial role because, “What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.”
To Thomas —and Gorsuch —religious institutions have free rein to discriminate, and should rarely if ever be questioned. That’s dangerous — and combined with the court’s other ruling this week, Little Sisters of the Poor v. Pennsylvania, allowing employers’ “religious liberty” claims to trump including contraception in health care benefits for employees — is further evidence of how the high court is steering in a direction of broad “religious liberty” exemptions on LGBTQ rights, which would affect not only employment, but housing, public accommodations and a whole array of areas.
That’s why it’s not only vital that Donald Trump is not re-elected this fall but that key Senate races are won by the Democrats and control of the Senate is taken away from the GOP.
We not only need to stop the Supreme Court’s further tilt to the extreme right with any new appointments; we must also get the Equality Act passed in Congress and signed into law — something that will only happen if Democrats have control of both the Senate and the White House — to finally get full civil rights protections for LGBTQ people under federal law.