Will the Supreme Court decision about sexual orientation and gender identity impact religious entities?

Don Balasa (JD, MBA) is a member of the Council on Biblical Manhood and Womanhood, serves as CBMW’s legal counsel, and is an adjunct professor at Trinity International University.

On June 15, 2020, the United States Supreme Court announced its decision in Bostock v. Clayton County, Georgia, an important federal employment law case.  The Court decided that employers covered by Title VII of the Civil Rights Act of 1964 are prohibited from discriminating against employees (or prospective employees) because of homosexuality or transgender status.

I have been asked whether this decision will interfere with the hiring and firing decisions of religious entities.  The following analysis answers this question.

Title VII of the Civil Rights Act of 1964 forbids employers that fall within its jurisdiction from discriminating against employees on the basis of “race, color, religion, sex, or national origin.”  The issue presented to the Supreme Court in Bostock was whether the protected category of “sex” includes sexual orientation and gender identity.  The Court ruled that Title VII employment discrimination against individuals because of homosexuality or transgender status is a type of sex discrimination and therefore illegal.

At first it would appear that religious bodies covered by Title VII could be threatened by this ruling.  However, there are specific religious exclusions in Title VII.  Note the following from Title VII:

This subchapter shall not apply to…a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities (emphasis added).

Title VII also has specific language exempting faith-based schools from charges of religious discrimination:

(2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion (emphasis added).

One obvious question arises from a plain reading of these exclusions: What if employees of a religious entity covered by Title VII are members of a religion, church, or denomination, but engage in a homosexual or transgender lifestyle?  Is a religious entity required to continue to employ them because of their religious affiliation, despite their lifestyles being inconsistent with the tenets of the entity?

To answer this question, we must begin with the definitions section of Title VII:

(j) The term “religion” includes all aspects of religious observance and practice, as well as belief…(emphasis added).

Because Title VII defines “religion” to include “all aspects of religious observance and practice,” it would seem that employees who profess a doctrinal belief but live contrary to it may be deemed as not being “individuals of a particular religion” and may be terminated by a religious employer.  However, there is an additional factor that must be taken into consideration.

In order to avail itself of the Title VII exclusion that allows religious bodies to employ only individuals of a particular religious belief and practice, a religious entity must have a clearly-articulated and unambiguous assertion in its doctrinal statements and governance documents (e.g., articles of incorporation, constitution, bylaws) that a homosexual or transgender lifestyle is antithetical to its core religious and moral principles.  The religious entity’s teachings on: sexuality and marriage; what its adherents must do to live consistently with them; and the consequences of disobeying them, should be explained in writing and made publicly available.  A good way of doing so is by posting them on the website of the entity.

A religious body’s tenets of sexuality and marriage should be incorporated into the employee policy manual of the body and explained to prospective and new employees.  Consequences of failing to abide by these tenets should be delineated clearly in the manual.  New employees should be required to read the manual and sign a statement that they agree to abide by its doctrinal and lifestyle requirements.  All employees should be required periodically to reread the manual and affirm in writing that they will continue to follow its provisions.  All these signed statements should be kept on file by the employer.

If religious bodies have moral objections to homosexual and transgender lifestyles, and if they publicize and provide the doctrinal bases for these objections, they should be able to avail themselves of the religious exclusions set forth in Title VII.  The Bostock decision, although of enormous significance and potential effect, should not interfere with the employment practices of religious entities that consider homosexuality and transgender ways of life to be morally unacceptable.