In the wake of the Bostock decision, 47 upper-chamber Democrats are pushing a bill that would further weaken protections for religious Americans.
On Monday, the Supreme Court ruled 6–3 that the 1964 Civil Rights Act’s prohibition on sex discrimination in employment also prohibits such discrimination on the basis of sexual orientation and “transgender status.”
In his dissent, Justice Samuel Alito warned that the decision presents clear threats to religious liberty, while Justice Neil Gorsuch countered in his majority opinion that there are still a variety of legal protections for religious Americans, including the Religious Freedom Restoration Act (RFRA).
“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,” Gorsuch wrote. “Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”
While it’s unknown what religious exemptions the Supreme Court “might” actually provide in cases involving claims of discrimination based on gender identity and sexual orientation, congressional Democrats made it clear this week that they don’t want to leave anything to chance, pushing forward with a bill that would explicitly strip religious Americans of the ability to defend themselves under the Religious Freedom Restoration Act in future employment-discrimination lawsuits.
The day after the decision was handed down, all 47 Senate Democrats, along with Republican Susan Collins of Maine, sent a letter to Senate majority leader Mitch McConnell demanding a vote on the Equality Act. On Thursday, Democrats took to the Senate floor to push for a vote, but Republicans Mike Lee of Utah, James Lankford of Oklahoma, and Josh Hawley of Missouri objected. Among other things, the bill would likely force public high schools to grant teenage boys who identify as girls access to girls’ locker rooms and open-bay showers. It would similarly end women’s sports and shelters. But above all, the senators warned, the legislation is a threat to religious liberty.
Indeed, University of Virginia law professor Douglas Laycock has warned that the Equality Act would “crush” religious dissenters. “It goes very far to stamp out religious exemptions,” Laycock told National Review in an interview last year. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
Justice Alito noted in his dissent that briefs “filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court ‘will trigger open conflict with faith based employment practices of numerous churches, synagogues, mosques, and other religious institutions.’ They argue that ‘[r]eligious organizations need employees who actually live the faith,’ and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.”
Under the Equality Act, “religious schools would be heavily regulated with respect to sexual orientation and gender identity,” Laycock said. “They would have left an array of constitutional defenses, most of which are undeveloped and uncertain at best.”
Laycock is a longtime supporter of same-sex marriage and a federal LGBT non-discrimination law, provided the law contains adequate protections for religious liberty. Following the Bostock decision, he says in an email that he is “cautiously optimistic” the Supreme Court will provide protection for religious employers in some future cases.
“Under either RFRA or a reinvigorated Free Exercise Clause, the courts will have to decide which applications of gay-rights discrimination law serve compelling government interests by the least restrictive means, or in the constitutional cases, perhaps by means that are narrowly tailored to the government’s interest in nondiscrimination,” Laycock writes. “The gay-rights side will say there is a compelling interest in stamping out every instance of discrimination; the religious side will likely say there is never a compelling interest. Judicial results should probably be somewhere in between.”
Of course, judicial results will depend on the composition of the Supreme Court at the time those cases are heard, and also on whether Congress acts first to “crush” religious dissenters before they are hauled before various tribunals.