Did the U.S. Supreme Court just threaten freedom of religion?
“It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives. SCOTUS, the highest legal authority in the land, has declared that homosexuality and transgenderism are like race. If you disagree, you are on the side of Klansmen, in effect.”
So fumes Rod Dreher, best known for writing The Benedict Option. Indeed, his recent column about the decision of the U.S. Supreme Court to outlaw hiring discrimination against sexual minorities and trans people gives him opportunity to tell us all again how right he is in that book.
One might not agree with Dreher’s recommendations in that book. (This one doesn’t.) And Dreher’s overheated rhetoric here likewise isn’t helpful.
The Court is not saying that homosexuality and “transgenderism” (whatever that means) are just the same as race. The Court is saying that, like race, and sex, and ethnicity, and national origin, and religion, one ought not to be discriminated against in the workplace because one is a gay man or a transgender woman.
But what about Dreher’s concern over religious freedom? He is far from being the only prominent conservative who is worried about that.
In an impressively argued dissent, Supreme Court Justice Samuel Alito contends that the 1964 Title VII statute did not entail protection for sexual minorities and people of fluid gender identities. It meant by “sex” simply biological males and females. The Court therefore has turned from interpretation to legislation, adding new meaning and new implications to the law, rather than referring the matter to Congress for proper deliberation.
That’s the legal objection to the decision, and Justice Kavanaugh agrees with it in his own dissent. But Alito’s brief also lists a worrying number of implications of the Court’s decision that he wishes had been dealt with via the long process of legislation, not the quick opinion of nine judges over a few days. He mentions, for instance, biological males disrobing in women’s change rooms in the presence of sexual assault victims likely to be traumatized by that experience. And he mentions the unfairness of trans women with male bodies competing in women’s sports. The list goes on. There is a lot at stake.
Alito points also to concerns about religious organizations, and in this his dissent confirms Dreher’s anxiety that the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012) will be lost. (This decision affirmed religious organizations’ right to insist on conformity to their values by “ministers” of their group.)
Indeed, SCOTUS is to hear two cases later this year on the question of whether conservative sexual practices can be required of all employees of religious institutions, and Alito and Dreher fear that this new decision will make it harder to defend the religious freedom to act differently than the social norm.
Four points, then, as a Canadian reflects on this matter.
First, I’m not a legal expert, but it seems to me that Alito and Kavanaugh have the better argument on the law. Justice Gorsuch wrote for the majority (and let’s take a moment to consider that many people voted for Donald Trump precisely so he would appoint the “right” people to the Court—and one wonders how they’re feeling about that now). Gorsuch argues that sex is always involved in such decisions.
Alito, however, makes it clear that sex is not the basis of discrimination in these cases. And he seems right that if Congress had wanted Title VII protection for homosexuals or trans people in 1964, which it manifestly did not, it would have said so.
Second, Alito nonetheless agrees with the majority that being a member of a sexual minority or being a trans person ought not to be discriminated against. He just wants Congress to legislate the appropriate changes in law, not the Court.
How can a Christian disagree? How is it right for someone to be fired from a job merely because he also plays on a gay softball team? (I’m not making this up. One of the cases is exactly this situation.) How is it right for someone who did a good job on Monday as a man to then be fired for showing up to work on Tuesday looking like a woman and asking to be treated as one? (Again, that’s pretty much the third case of the three.)
Third, there are indeed exceptions made in American law, as in Canadian law, for bona fide religious ethical objections in the workplace. This recent SCOTUS decision does not directly speak to those exceptions (as Dreher grudgingly allows, in seeming contradiction to his initial consternation).
Alito and Dreher may be right that this decision makes it harder to defend religious exceptions. But they don’t specify how it does. The Big Question remains just as it did before this decision: whether American jurists and legislators will continue to protect religious freedom to dissent on such matters, regardless of this particular decision.
It is obvious which way the cultural tide is flowing in the United States. And up here, Trinity Western University’s loss at the Supreme Court of Canada over its law school, having won a very similar case a decade before over its education school, is one of several recent court decisions that indicate the direction of that tide on our side of the border.
Maintaining the religious freedom to be different and to speak differently about matters such as sex and sexuality has become an increasingly tough battle. But the battle has been going on a while now, and this recent decision is only one more step along the way.
Finally, as concerned as Christians may be about protecting the religious freedom to insist on ethical difference in our own institutions, we must not keep making the same mistake we made in the past—namely, to insist that our distinctive Biblical values be enforced in general legislation. It may be proper for a Christian school to insist that all of its staff members practice traditional Biblical sexual ethics. (For the record, I think it is.) But it isn’t right to protect the freedom of secular employers to fire people for refusing heteronormativity.
In fact, when we Christians did run the cultural show, we should never have criminalized homosexuality and allowed discrimination against sexual minorities in the workplace (or the courts, or in renting and real estate). Just because the majority believe something is wrong doesn’t mean the majority should make it illegal—which is a principle that we Christians are increasingly going to have to insist upon in our own defense.
So, yes, maybe SCOTUS overreached with this decision. But it surely was coming. And, alongside Justice Alito, we can agree that some such decision should have come, even if it ought to have come by legislative rather than judicial means.
As for Alito’s fears, and Dreher’s, on behalf of religious freedom—well, any traditional Christian paying attention was already alarmed. We thus wait—in faith, in hope, and in love—to see what the U. S. Supreme Court decides about religious freedom later this year when it actually does address the issue.