Bloomberg Law
July 8, 2020, 7:16 PM

Religion, LGBT Rights Again on Collision Course at High Court

Erin Mulvaney
Erin Mulvaney

Funeral home owner Thomas Rost said he would be “violating God’s commands” if he allowed his transgender employee Aimee Stephens to work as a woman, during the Michigan business’s battle over gender identity discrimination that ultimately reached the U.S. Supreme Court.

While the high court ruled in that case that Title VII of the Civil Rights Act of 1964 protects LGBT workers, it left open questions of whether employers like Rost can fire or refuse to hire gay or transgender individuals based on religion.

Employers with religious objections to anti-bias enforcement will likely continue to mount those defenses in the wake of the Supreme Court’s LGBT decision, as well as two religion-focused rulings the justices handed down on Wednesday. One expanded the scope of a religious defense against bias claims of “ministers,” while the other upheld a Trump administration rule on religious opt outs to birth control requirements.

Those decisions, as well as a First Amendment case the high court will tackle next term involving a Catholic foster agency and same-sex parents, set up future clashes between religious freedoms and LGBT rights in the workplace, attorneys said.

“Religion is one of the few areas that conservatives have to hang their hat on,” said Jillian Weiss, special co-counsel to Outten & Golden, who works with the firm’s LGBTQ workplace rights practice group. “It will definitely be a major area of litigation.”

Certain employers can invoke the Religious Freedom Restoration Act to defend against discrimination lawsuits brought by the government. Religious organizations, such as churches and religious schools, are allowed to hire only workers of their particular faith under a Title VII carveout. The Trump administration also has advocated for regulations that expand religious protections. These defenses to discrimination liability could strip LGBT individuals of various protections in the workplace, as well as in health care and education, some advocates say.

“This is a legal question that needs to be resolved,” said Chai Feldblum, a former commissioner at the Equal Employment Opportunity Commission and an attorney with management-side firm Morgan, Lewis & Bockius. “There are two legal rights that exist right now under our systems.”

Supreme Court Weighs In

The court in June settled three LGBT employment discrimination cases in its 6-3 ruling on June 15Altitude Express v. Zarda, Bostock v. Clayton County, GA, and R.G. & G.R. Harris Funeral Homes v. EEOC. Justice Neil Gorsuch, who wrote the opinion, emphasized that the ruling didn’t answer questions about religious clashes and said that would be left for another day.

On Wednesday, the court provided more clarification on a “ministerial exception” defense available to religious organizations. The high court ruled in consolidated cases—Our Lady of Guadalupe School v. Morrissey and St. James School v. Bielthat Catholic school teachers are “ministers” who can’t bring discrimination claims against their religious employers.

“While the Supreme Court has made it clear that it is against the law to fire someone for being LGBTQ, today they made it easier for religiously-affiliated employers to discriminate—including against LGBTQ people,” said James Esseks, director of the ACLU’s LGBT & HIV Project. “The court must not expand a license to discriminate any further than it has today.”

Also on Wednesday, the court issued Little Sisters of the Poor v. Pennsylvania, which said the Trump administration could allow employers and universities to opt out of the Affordable Care Act’s requirement to provide contraceptive care because of religious or moral objections.

Next term, the justices will hear arguments in Fulton v. Philadelphia on whether the city could ban a Catholic group from foster care programs because the organization said it wouldn’t work with same-sex couples from serving as foster parents. The case will have a wide influence on the interplay between anti-bias laws and First Amendment protections for religious groups, attorneys said.

“The result of the court’s decision means that Christian owners of small businesses will be faced with the same Hobson’s choice: violate their religious beliefs, or get sued for the free exercise of religion,” said Matthew Clark, an attorney with the Foundation for Moral Law, which filed amicus briefs in the Bostock cases, and warned of an “impending clash with religious liberty” if the court ruled to expand LGBT protections.

Clark said he hopes the court in Fulton will bolster religious protections or solve the “no-win dilemma that Bostock created for Christian employers and employees.”

The potential for conflict between the religious beliefs of the owners of private businesses and Title VII isn’t new, said Shannon Farmer, an attorney with Ballard Spahr who represents employers. Cases have covered questions such as whether employers can take action against unwed mothers or women who have had abortions, for example, she said.

“Although employers may have the right to terminate at will employees for conduct that violates the employer’s rules of conduct or the employer’s standards, that right is not absolute and may remain subject to employee protections under Title VII and other employment protections. This is not limited to the area of LGBT rights,” she said.

Religious Precedent

In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores Inc. that the Religious Freedom Restoration Act protected owners of closely held corporations, where more than half of the shares are owned by a few individuals, from being forced to include certain contraceptives in their employee insurance plans.

In 2018, the justices held in Masterpiece Cake Shop v. Colorado Civil Rights Commission that government agencies must neutrally analyze employers’ religious defenses before pursuing discrimination enforcement. However, they punted a ruling on whether a baker could cite his religious beliefs in refusing to bake a cake for a same-sex couple.

There’s a question about whether the Supreme Court is going to change the way it treats religious defenses, but there’s no general entitlement to religious exemptions from neutral and generally applicable law, said Charlotte Garden, a law professor at Seattle University School of Law. She said a religious employer that claimed an exemption from Title VII based on the First Amendment’s free exercise of religion clause would “almost certainly lose.”

Religious Freedom Restoration Act questions mostly aren’t going to be relevant to Title VII claims, she said. She said the law provides a broad right to religious exemptions and accommodations, but it applies only to people who think their religious exercise is substantially burdened by government entities. She said courts aren’t on that list.

That religious law, however, can be raised in discrimination suits brought by federal agencies like the EEOC, which sued Harris Funeral Homes. Rost, the company’s owner, testified that as a Christian he leaned on the Bible’s teaching that a person’s sex is an “immutable God-given gift” in firing Stephens for being transgender.

The U.S. Court of Appeals for the Sixth Circuit sided with Stephens and rejected Rost’s Religious Freedom Restoration Act defense, but the attorneys didn’t appeal that question to the Supreme Court as it did the gender identity issue.

The Supreme Court decision in Bostock and Harris Funeral left many issues to be addressed in future cases, said John Bursch, senior counsel for the Alliance Defending Freedom, who represented the funeral home before the Supreme Court. He said religious freedom and LGBT rights don’t necessarily have to clash, and instead there is room for compromise.

“When no one is willing to give, there can be litigation,” Bursch said. “The opinion invites religious claims.”

Courts are going to have to figure out how to harmonize religious exemptions and the Supreme Court’s ruling in Bostock, said Jim Paretti, a management-side attorney with Littler Mendelson. That will be fertile ground for litigation on how to accommodate the laws.

“It’s absolutely an open question what requirements will be to harmonize the two statutory rights,” Paretti said.

To contact the reporter on this story: Erin Mulvaney in Washington at

To contact the editors responsible for this story: Karl Hardy at; Jay-Anne B. Casuga at