Religious Liberty after Bostock and Our Lady of Guadalupe

Religious Liberty after Bostock and Our Lady of Guadalupe
A cherub figure with a book, symbolizing learning, at the Supreme Court building in Washington, D.C., July 2, 2020. (Jonathan Ernst/File Photo/Reuters)

Some questions have been resolved, but much remains unknown.

In 2017, a public-school teacher in Florida named Amanda Bressack told fifth-grade students that their teacher should be referred to as “Mx.” Bressack — pronounced “Mix” — and that Bressack’s pronouns were “they, them, their instead of he, his, she, hers.”

Some parents objected to teaching ten-year-olds about the concept of transgenderism. Several removed their children from Bressack’s class. “It’s not up to our teachers to teach these kinds of ideas (after all — a boy is a boy and a girl is a girl),” one member of the community wrote on Facebook. The school district then transferred Bressack “from working with children into a classroom with adults,” the Washington Post reported at the time.

But in light of the Supreme Court’s 6–3 Bostock decision — which held that employment discrimination on the basis of transgender status and sexual orientation are forms of sex discrimination outlawed under Title VII of the 1964 Civil Rights Act — it’s now pretty clear that removing a public-school teacher under such circumstances would amount to illegal discrimination in the eyes of Neil Gorsuch.

So, what recourse do concerned parents have if their child’s elementary-school teacher Mr. Smith comes back from Christmas break wearing a dress and tells students their teacher is now “Miss Smith”?

For those with the patience, ability, and financial means, homeschooling is an option. And for those with nearby access (and, again, the financial means or assistance), private religious schools will still be an option as well, thanks to the Supreme Court’s 7–2 ruling in Our Lady of Guadalupe School v. Morrissey-Berru, which was handed down last week.

In Guadalupe, the court held that two schoolteachers who taught religion as part of their jobs at Catholic elementary schools qualify as ministers, and therefore the teachers could not sue for employment discrimination because of the so-called “ministerial exception” — the legal doctrine that holds that the free-exercise clause of the First Amendment protects the right of religious bodies to hire and fire ministers as they see fit.

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Justice Samuel Alito wrote in the court’s majority opinion. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

“What matters, at bottom, is what an employee does. And implicit in our decision in [the 2012 Supreme Court case] Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school,” Alito added.

Although Guadalupe was a clear win for the First Amendment, there is still a great deal of uncertainty about whether the Bostock decision will impinge on religious freedom in the years to come.

One outstanding question, for example: Does the “ministerial exception” apply to high-school teachers at a religious school who teach a particular subject — say, math or computer science — and don’t explicitly instruct students in religion? It’s not clear.

Ryan Anderson of the Heritage Foundation thinks it would. “Even if you’re the math teacher, the logic of this opinion [in Guadalupe] is that if the school asks you to embody the faith, that you’re a minister,” he tells National Review. Anderson points to several passages from the majority opinion, including the fact that Alito noted the schoolteachers were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”

But University of Virginia law professor Douglas Laycock disagrees with that interpretation of the majority opinion. “I don’t think the Court will expand this to say that those who teach only secular subjects are ministers, even if they are expected to be role models,” Laycock tells National Review in an email. “Time will tell, of course. But if I’m right about that, then most teachers in religious elementary schools may be ministers, because they teach the whole curriculum, including religion. But most teachers in middle schools and high schools will not be, because they each teach a particular subject, and most of those subjects are secular.”

But there are other sources of protection of religious liberty in federal law that could apply in those cases. For example, Laycock notes, Title VII of the Civil Rights Act of 1964 “says a religious institution can hire people of a particular religion. That has been sensibly interpreted to permit hiring on the basis of religion more generally. A Baptist institution that hires Methodists does not forfeit its right to refuse to hire outspoken atheists.”

“There is an issue in the lower courts about whether this just means the employee’s self-proclaimed religious identity, or whether the employer can insist on some basic level of adherence to the faith,” he adds. “If I say I’m Catholic, can the employer say that because I’m in a same-sex marriage and I’m moonlighting in an abortion clinic, I am obviously not a real Catholic? That issue now becomes much more important. The statute says that it shall not apply when the employer hires on the basis of religion, so it shouldn’t matter that sex and sexual orientation are also protected classes. Adherence to the institution’s religious teachings ought to be within the exception.”

Some religious Americans are still very worried that the existence of many religious schools will be threatened eventually by the IRS.

During oral arguments in the 2015 Obergefell case — in which the Court held by a 5–4 majority that there is a constitutional right to same-sex marriage — Justice Alito asked solicitor general Donald Verrilli if a religious college that doesn’t support same-sex marriage could lose its tax-exempt status, just as Bob Jones University lost its tax-exempt status for opposing interracial marriage. Verilli replied that “it’s certainly going to be an issue. I don’t deny that.”

Bob Jones was a case about racial discrimination in education. In 37 years now, it has not been extended to any other context,” Laycock notes. He believes there’s no chance the IRS would make such a move in the short term, but if it did, the Religious Freedom Restoration Act “would likely provide a defense.”

The Religious Freedom Restoration Act is a 1993 federal law that reestablished a balancing test for courts to apply in religious-liberty cases (a standard that had been used by the Supreme Court for decades but was abandoned in the 1990 decision Employment Division v. Smith). RFRA allows a person’s free exercise of religion to be substantially burdened by a federal law only if the law furthers a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.”

“Race is constitutionally unique in our history,” says Laycock. “No matter how bad gays were treated, there’s no 250 years of slavery, it didn’t take 750,000 deaths to emancipate them, it didn’t take three constitutional amendments. It didn’t take a century or more before they were finally enforced.”

“All those things are deeply in our constitutional history and structure, so the court may well say there’s compelling interest in race in a context where there’s not necessarily a compelling interest in the other category,” he says.

RFRA doesn’t mean, however, that religious believers will have a broad carveout from Title VII of the Civil Rights Act of 1964 (as interpreted by a majority of the Supreme Court).

I asked Laycock what might happen if, say, an evangelical Christian who runs a gymnastics studio didn’t want to expose children to the concept of transgenderism and fired an instructor who was transitioning from one gender to the other. A RFRA defense for the evangelical employer in that scenario is “a slam-dunk loser in [federal courts in] blue states and probably a loser in red states,” he says.

Writing at The Public Discourse, Ryan Anderson notes that there are a variety of employment-discrimination cases that will surely pop up in the years to come. Will an evangelical business owner, for example, be compelled to offer health insurance that covers transgender hormonal treatments under the Supreme Court’s interpretation of non-discrimination laws? That may depend on the makeup of the Supreme Court. (Clarence Thomas turned 72 last month.)

What’s more, once Bostock’s logic — that transgender discrimination is a form of sex discrimination — is applied to Title IX, that will affect schools in a number of ways, from girls’ sports to locker rooms. The Obama administration interpreted the 1972 law to mean that teenage boys who think they are girls must be granted access to girls’ locker rooms and showers in public schools. As David French noted in 2015: “Exposing a penis to girls in a public high school is generally considered an act of sexual harassment, not part of the sexual revolution.”

That point may have been “common sense” in 2015, but in a few short years the transgender revolution has led to a radical redefinition of common sense and common decency that has implications for children who attend our common schools. Bostock was yet another victory for that revolution, and its consequences for public schools are a big reason why many religious Americans feel angst despite a string of victories that preserve the First Amendment rights of religious schools.

Uncertainty about how the courts will handle future religious-liberty cases and the real possibility that Congress may gut the Religious Freedom Restoration Act next year are other sources of angst.

If Democrats win unified control of the government in November and scrap the Senate filibuster next year, they would certainly enact the Equality Act. That piece of legislation would “crush” religious dissenters, according to Professor Laycock. The Equality Act would add “sexual orientation” and “gender identity” to Title II of the 1964 Civil Rights Act (which bans discrimination in public accommodations) and broadly expand the law’s definition of public accommodations. The legislation also says the Religious Freedom Restoration Act does not apply to any claim under the Equality Act. “This would be the first time Congress has limited the reach of RFRA,” Laycock told National Review last year. “This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

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