We all are becoming more familiar with the landmark case handed down by the US Supreme Court on June 15, 2020, Terence Tramaine Andrus v. Texas. This was a highly-anticipated case that offered surprises, not only in its result, but also in the positions that the Supreme Court Justices took in deciding this case.
By Dennis W. Watkins, Legal Counsel, Church of God
The basic ruling of the case was that an employer who is covered by Title VII of the Civil Rights Act of 1964 and who fires an employee for being homosexual or transgender has engaged in discrimination based on “sex” in violation of the Act. The effect of the case was to elevate sexual orientation to the same protected status as other categories, such as race, color, national origin, sex or religion.
The Supreme Court case actually involved review of three separate cases: one from Georgia; one from New York; and one from Michigan. Each case involved an employee who had been fired based on some basis relating to that person’s sexual orientation as same-sex or transgender.
The Supreme Court’s ruling, in a 6-3 decision, was that Title VII’s ban on sex discrimination includes sexual orientation and gender identity, even though Congress has never enacted such legislation as part of civil rights laws. Even more surprising was the composition of the Court’s majority. All four of the Court’s liberal justices voted as a bloc, joined by conservative Justice Gorsuch, who wrote the majority opinion, and Chief Justice John Roberts. Three conservative Justices voted in the minority and Justice Alito wrote a dissenting opinion.
THE EFFECT OF THE DECISION ON CHURCHES
The actual long-lasting effect of the decision on churches and religious affiliates such as schools is still being evaluated. Many pastors and religious organizations are clearly disappointed in the ruling.
It should be pointed out that the Supreme Court took notice in its decision that there still remains an exemption for religious organizations under Section 702 of Title VII of the Civil Rights Act. That section reads:
“This title 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.”
Simply put, churches have long been entitled to discriminate on the basis of religion in employment decisions. And this right has been confirmed by recent cases in the US Supreme Court, such as Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C in 2012. The Title VII exemption afforded to churches also applies to religious schools, under certain conditions.
These exemptions, based on First Amendment protection, were not addressed by the Court in its decision and at this point likely would not be covered by this decision. In fact, the opinion seemed to attempt to limit concern regarding this by stating:
“. . .The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual’s sex. . .Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
The Court’s opinion also stated:
“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution. . .”
There also are other religious liberty cases pending before the US Supreme Court at this time, particularly dealing with schools. The Court did not speak to those matters.
THE FINAL ANALYSIS
Unfortunately at the present time, there can be no final analysis but only an interim analysis, because there predictably will be much more litigation stemming from this decision. My opinion is that under the present decisions, the right of churches to discriminate in employment based on religion still exists. We can only hope that the Court does not infringe on the right of churches to freely act according to their beliefs. The Court certainly, at least nominally, did not claim to attempt to do that in this decision.
Does this decision affect the rights of our ministers to preach against homosexuality, same-sex marriage, or other subjects about which we hold sincere religious and Biblical beliefs? I do not think so at this point. As with any other topic in this category, the basic advice is: Keep your preaching based on the Word of God and our sincerely held religious beliefs! That is our strongest Constitutional protection.
We will see much more activity in this area and we should all pray for the protection to espouse our beliefs based not on our personal, political, or social opinions, but on the basis of the Bible.
Church Law & Tax Report – Richard R. Hammar – “Supreme Court Rules that Title VII’s Ban on ‘Sex’ Discrimination Includes Sexual Orientation” – June 16, 2020