Bench Memos

Law & the Courts

Title VII Amicus Brief of Religious Organizations: Don’t ‘Open the Floodgates’

In an amicus brief in one of the Title VII cases pending before the Supreme Court, a coalition of seven national religious organizations—including the United States Conference of Catholic Bishops, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Anglican Church in North America—warns that a ruling that Title VII’s ban on discrimination based on “sex” extends to discrimination based on gender identity “would open the floodgates to a host of problems, including for persons and institutions with religious and moral convictions about sexual identity and sexual difference.”

As the brief points out, when a legislature “creates a new right, it can fashion a comprehensive code that anticipates problems, provides definitions, sets out important qualifications, articulates exceptions, and allows or requires accommodations for religious and other objectors.” By contrast, when courts invent or redefine a new right, they must proceed case by case and thus “cannot, in systematic fashion, anticipate, prevent, or ameliorate the serious religious and other burdens that such a redefinition can be expected to create.”

The brief explains that “[i]nterpreting Title VII’s ban on sex discrimination to reach gender identity would entangle the Judiciary in a constitutional and statutory thicket.” It surveys the “vexing questions [that] will be multiplied and amplified” for churches (pp. 10-14), religious schools (pp. 15-17), religious charities (pp. 17-18), individual religious believers (pp. 18-20), health-care services (pp. 21-25), and all schools subject to Title IX (pp. 25-27).

Here is an excerpt from the brief’s discussion regarding churches (emphasis in original):

Given its expressive mission, a church understandably and legitimately may wish to hire only those whose speech and conduct is consistent with its own teaching. It could sow confusion among the members of a church (and the public) if in contravention of the church’s religious beliefs it were, for example, forced to hire or retain an individual who publicly violates the church’s teaching on a significant moral issue.

For many churches, this religious teaching includes acceptance of—indeed, celebration of and gratitude for—one’s created nature as male or female and the moral norms associated with sexual identity and differentiation. Men and women are often the beneficiaries of church ministries and outreach based on their distinctive needs as men and women. This includes programs and activities that are premised on or promote a theologically-shaped understanding of human sexual difference. A church would not be able to effectively minister to, or meet the distinctive needs of, men and women were it forced to hire and retain people who reject or, by word or conduct, contradict this vision of human sexual difference and its moral consequence even for themselves.

If, for argument’s sake, a church were required to hire or retain a “gender-transitioning” employee under the theory that “sex” discrimination means “gender identity” discrimination, it would set the stage for associated “harassment” claims when the church—in salutations and use of pronouns, for example—refers to the employee in the workplace by his or her actual sex, thus pitting the claim to be free of gender identity “harassment” against the free speech, free exercise, and associational rights of the church, its members, and other employees. In addition, if the church, adhering to its own religiously-held view of sexual difference, were to continue arranging restroom and locker room access based on biological sex, notwithstanding an employee’s self-designated gender identity, it may find itself charged with gender identity discrimination. Alternatively, if the church were to allow access to restrooms and locker rooms on the basis of gender identity, it may precipitate competing claims by co-workers that their right to be free of unwelcome contact with members of the opposite sex in a state of undress has been compromised in violation of a more traditional understanding of sex discrimination.

In short, compelling a church by law to hire and retain employees who, by speech or conduct, do not espouse or have not integrated its mission and message into their own lives, or who by their speech or conduct contradict that message, would invariably bring harm to a church. It would also undercut the church’s right to decide for itself what its mission and message are. And if churches were forced to hire and retain such employees, it would almost certainly bring in its wake the sorts of intractable harassment, privacy, free speech, religious liberty, and associational claims described above.

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