Bostock v. Clayton County and the uncertainty of religious freedom
There are reasons to be concerned about the future of religious freedom, but last year's Bostock decision is not one of them
In previous weeks I’ve shared short pieces from my original website on this platform, mainly so they’re all in one place.
Today, my thoughts on last summer’s major Supreme Court decision on LGBT rights and its implications for religious freedom (from June 29, 2020).
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Last week the U.S. Supreme Court issued its decision in Bostock v. Clayton County. The 6-3 ruling, authored by none other than Neil Gorsuch (yes, that Neil Gorsuch), held that sexual orientation and gender identity are protected under Title VII, the federal law that prohibits employment discrimination.
For decades businesses and government agencies have been barred from firing someone on account of their race, gender, religion, nationality, and the like. Now, we can add sexual orientation and gender to the list. Gorsuch argued that because orientation and identity in this context are "inextricably bound up with sex," these characteristics should be protected under a textualist reading of Title VII.
It is hard to overstate the importance of this decision. As far as LGBT rights are concerned, only two judicial decisions are remotely comparable: Lawrence v. Texas, the 2003 case that struck down laws criminalizing homosexual conduct; and Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage across the country.
At the same time, Bostock also has tremendous implications on the future of religious freedom in the United States. Why is that? No, it's not because churches will suddenly be required to ignore sexual identity when employing pastors; as recently as 2012 the Supreme Court ruled unanimously on behalf of a strong interpretation of the ministerial exception, which exempts churches from employment discrimination laws.
Rather, think of all those organizations in the country who have religious underpinnings and missions, but are decidedly not houses of worship. Instead, they are nonprofit service organizations, such as World Relief and Compassion International. They are parachurch ministries, such as Intervarsity and Cru. And they are institutions of learning, such as my own place of employment, John Brown University. How these organizations and institutions should fare under the new Bostock precedent is very much an open question -- indeed, for those concerned with religious freedom, it is the million-dollar open question.
Among advocates of religious freedom there are essentially two approaches to reacting to Bostock. The first is what we'll call cautious optimism. This is my approach, as I argued in this Christianity Today article. It is also David French's approach, who said it much better than I did. Basically, the cautious optimist sees Bostock as potentially posing real challenges for religious freedom. But the key here is potentially: since this decision did not say, "Religious institutions, you'd better get ready, because this is going to affect you," the cautious optimist looks at existing legal precedent and the dynamics of the Supreme Court and breathes a sigh of relief.
Speaking of the Supreme Court, its current composition is very friendly to religious freedom. Going back nearly a decade, the Court has ruled in favor of religious freedom in the vast majority of such cases it has heard. And the two most recent justices--Gorsuch and Brett Kavanaugh--are at least just as predisposed (if not more so) to religious freedom than the pair of justices they replaced (Antonin Scalia and Anthony Kennedy).
Obviously, the composition of the Supreme Court does not last forever. The past five presidential administrations have each made two appointments, so, as always, future elections matter. But at the moment, there is little reason to believe that the same Supreme Court that decided Bostock would somehow take a turn against religious freedom in the future. And we won't need to wait long for an answer, as the Court is poised to decide two cases with implications for religious freedom in the coming weeks, including one that will weigh the reach of the aforementioned ministerial exception.1
Opposed to cautious optimism is what we'll call principled pessimism (another term might be "pessimistic realist," but I like alliteration). Many notable social and religious conservatives seem to align with this approach, including Andrew Walker, who stated the perspective well in a rebuttal to my article. For the principled pessimist, Bostock is just the latest in a line of political and legal signals that culture has shifted away from Judeo-Christian values, and that eventually those adhering to these values will be left out in the cold. Our options are limited as a result, but they include turning to and embracing Rod Dreher's "Benedict Option."
I understand the approach and the concerns of the principled pessimist, and I agree that Christians need to be vigilante in preparing for the future in a culture that is becoming less and less friendly to our views. At the same time, I'm not sure what to do with some of the concerns of the principled pessimist. For example, in Walker's article for Christianity Today, he argues two things: First, that opponents of robust religious protections don't actually want a compromise of the sort envisioned by cautious optimists; and second, that protections in the Religious Freedom Restoration Act (RFRA) are not as strong as we'd hope.
I don't necessarily disagree with Walker on either point. I, too, am skeptical that progressive critics of religious conservatism would like to see a compromise akin to "Fairness for All" enacted. Furthermore, support for RFRA is certainly weaker today than when it was unanimously enacted in 1993. Even still, my optimism that Bostock is not the death knell for religious freedom does not stem from a naive or willing ignorance of the intensity of the culture wars, but rather from the (likely?) possibility that the Court's jurisprudence will eventually foist a balance between religious freedom rights and equal rights for LGBT Americans on an unwilling public. This is not to say that such an approach is preferable to legislative efforts, nor will it satisfy those on either side of the chasm spanning LGBT rights and religious freedom protections. But given the options available, I'll take it.
Moreover, if I'm reading Walker correctly, Bostock isn't a radical departure from where the culture is already headed. Indeed, with the Equality Act very likely to be passed under the next period of unified Democratic government,2 one could argue that Bostock took the wind out of the sails of those seeking to make employment protections for LGBT Americans an electoral rallying cry. Moreover, Gorsuch's opinion waxing eloquently about the importance of religious freedom and emphatically stating that the Court's decision does not mean much for religious freedom issues (seriously, just read his language in the opinion) does not give me trepidation for the future of these inevitable clashes. If the lasting power of RFRA is in doubt, then there are worse things for advocates of religious freedom than a supportive majority on the Supreme Court.
As Walker's piece noted, there certainly are reasons to be concerned about the future of religious freedom, given shifts in culture and present (and future) political realities. But the decision in Bostock shouldn't be among them. Until this Court departs from its current trajectory concerning religious freedom, I will remain cautiously optimistic.
After I wrote this last year, the Court decided Our Lady of Guadalupe School v. Morrissey-Berru, which expanded the ministerial exception to employees at religious schools whose duties do not necessarily include religious instruction. This decision was precisely what I had envisioned when writing this paragraph.
The House of Representatives passed the Equality Act earlier this year, yet it remains unlikely to pass the Senate due to the body’s razor-thin, 50-50 margin. And even if conservatives Democrats (e.g., Sens. Manchin and Synema) decide to support the Act, the Senate would almost certainly need to change its rules governing the filibuster for the Act to reach President Biden’s desk.
Thank you sharing this with us, Dr. Bennett! I very much enjoy your writing style. It feels very personal and flows elegantly.
P.S. I think you'd want for Christians to be "vigilant" not "vigilantes"