The Supreme Court decision extending protection to LGBTQ community will have no immediate effects to BYU-Idaho hiring and firing in the near future. However, down the road some aspects of employment at BYU-I could be impacted.
On June 15 the Supreme Court ruled that Title VII includes civil right protection for individuals who are LGBTQ against being fired because of their sexuality. In the document which contained the ruling for the case Bostock v. Clayton County, Justice Neil M. Gorsuch, the judge who delivered the Supreme Court decision explains, “An employer who fires an individual merely for being gay or transgender defies the law.”
Title VII is a specific part of the Civil Rights Act passed in 1964. Title VII specifically deals with employment rights.
Gorsuch acknowledges that if Congress had originally written “solely because of sex,” there would be a less clear decision, but instead, Congress supplemented Title VII in 1991 to only require sex to be a “motivating factor” in discrimination. For example, a woman who is fired for dating another woman would not have been fired if she was dating a man. Therefore, the ultimate underlying reason can still be traced to a form of sex-based discrimination.
“There is only one word for what the Court has done today: legislation,” writes Justice Samuel Alito, one of the three dissenting judges. “Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.”
Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.”
Alito essentially argues that the Supreme Court is required to interpret terms of statues to “mean what they conveyed to reasonable people at the time they were written.”
Private, religious organizations
With this decision comes a question asked by private and church institutions: How does this impact hiring and firing? On first thought, many might think that it will have no impact because Title VII exempts religious organizations from needing to comply by all of those standards with its clause, “This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation…”
John Thomas, a religion professor who teaches the religious freedom classes at BYU-Idaho, explains what this may mean for BYU-I and other private universities.
“Nobody doubts that BYU-Idaho is a religious employer, BYU-Idaho has a temple recommend requirement that basically requires a level of fidelity with religious norms,” Thomas said. “So that to me you call it discrimination if you want but it’s essentially protecting the religious mission of an institution.”
He said if BYU-I were to discriminate in hiring based on what sex an individual is, that would be illegal. No institution or university can turn someone away just because they are a woman or a man.
However, this ruling from the Supreme Court essentially redefined the term sex to include individual sexual orientation. Due to this, discrimination from hiring someone at BYU-I because they identify as LGBTQ could walk the line of legality in the future.
Thomas said that he could see a lawsuit resulting if an individual applies and signifies that he is gay on the application but holds a temple recommend and gets rejected from an interview, then hears people would feel uncomfortable if he, as a gay professor, worked on BYU-I’s campus.
However, he did say that as of right now if an employee of BYU-I were to change gender and be fired as a result, there wouldn’t be much ground on which a lawsuit could stand due to the religious nature and standards of the university.
Justice Brett Kavanaugh, another one of the dissenting judges, explains in the dissension part of the case document his sympathy for the plight of LGBTQ Americans while affirming his belief for the role of the Supreme Court.
“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgement.”
Alliance Defending Freedom, an organization whose mission is to protect religious freedom, said in a press release on June 15, after the Supreme Court ruling, “The Supreme Court concluded that courts and the government may redefine that term in Title VII, even though Congress clearly did not intend that meaning when it wrote the law and is the only body with the constitutional authority to change it.”
Essentially what would have to happen for BYU-I to be directly impacted by all of the aspects of Title VII would be for Congress to make a change reversing the exemption of religious organizations from the law. As mentioned in the quote from the press release, Congress is the only body that can change it.
The Equality Act
In the long term look for BYU-I and other private universities, Thomas refers to a piece of legislation called the Equality Act which passed the House of Representatives last year.
“[The Equality Act] wants to include sexual orientation and gender identity in every aspect of every federal civil rights law; and it has essentially no exceptions,” Thomas said. “So a piece of law like that would tremendously complicate things, and would almost certainly get challenged in court, many times.”
It is highly unlikely that the Equality Act would include an exemption for religious organizations as there would be almost no exemptions.
Short term, Thomas does not think the Court decision would threaten BYU-I or other universities like it. He said that Congress does not have power to decide religious questions about gender or chastity that would affect religious institutions. Congress is supposed to let religious groups live up to their mission and standards.
“I still don’t think it’s going to have a huge impact on religious organizations,” Thomas said. “But I have to admit, Title VII does not say religious organizations are excused from all of the requirements, it just says they’re excused from requirements about not discriminating by religion.”