SOGI Laws and Religious Freedom for Faith-Based Organizations

After the Supreme Court decision Obergefell v. Hodges, public discourse has shifted to addressing the discrimination often targeted toward LGBT individuals in areas such as employment, housing, and credit opportunity. Obergefell requires states to accept same-sex marriage but does not tell governments what they must require of private persons and organizations with respect to same-sex marriage.  One consequence:  a gay couple can get married but then both people get fired or they can’t find housing in those many states and localities without laws protecting the LGBT community from discrimination.  The federal government itself does not have any comprehensive SOGI protections. One consequence is a heightened push to create new laws, including at the federal level, that would make SOGI a new protected class.  But unless well written, such laws, while protecting LGBT people in their identity, will harm faith-based organizations that have a different religious paradigm regarding human sexuality and desire to live in conformity to it without denying the legal rights of others.


In our society, we have a diversity of views regarding expressions and behavior associated with sexual orientation and gender identity.  While it has become popular to support these expressions, many individuals and organizations of faith remain committed to their religion’s historical understanding of human sexuality. A law that simply implements SOGI nondiscrimination, without regard for religious organizations that retain a traditional sexual ethic consistent with their understanding of sacred texts, makes it impossible for such organizations to consistently live out their deeply rooted religious convictions. SOGI protections are a great advance, albeit not the same as race and sex.  But these protections should and can exist without the massive negative consequence of impeding the ability of faith-based organizations with an orthodox sexual ethic from serving according to their faith doctrine.  This is why religious freedom is so important.


Sexual orientation and gender identity may not have the same historical implications as race and sex, but that does not make it any less important to challenge mistreatment. At the same time, attempts to pass SOGI legislation without proper religious accommodations will have consequences for the freedom of faith-based organizations in how they staff and how they provide services. It seems that, in general, requiring SOGI nondiscrimination in housing (beyond the smallest facilities and religious shelters) and in credit fulfills the civil rights and religious value of fairness to all, and rarely will pose religious freedom problems.  People and organizations of faith should then support SOGI laws focused on housing and credit opportunity without much reservation.    But other areas are much more complex.  I’ll focus particularly on private employment and on services provided by government funded FBOs.


A Theology of Mutual Respect


Mutual respect between people who differ, and a “curtain,” not a wall, between government and religious institutions were the prescriptions for social harmony proposed by LDS Church Elder Dallin H. Oaks in an October 20, 2015, speech. He said,


“My thesis is that we all want to live together in happiness, harmony, and peace.  To achieve that common goal, and for all contending parties to achieve their most important personal goals, we must learn and practice mutual respect for others whose beliefs, values, and behaviors differ from our own.”


Mutual respect requires that people and institutions of faith and those that are secular acknowledge that others are different, without engaging in culture wars.


And it requires respect for religious institutions and also for government.  Oaks urged those opposed to religious organizations to “recognize the reality—borne out by experience—that religious principles and teachings and their organizations are here to stay.”  And he urged religious organizations to not look upon the government as an enemy, but as a potential ally and protector. I agree with his assessment that religious organizations, have the capacity to create an environment for human flourishing. For that, there needs to be a proper relationship between church and state.


Often that relationship is described as a “wall of separation,” but Elder Oaks proposed an alternative picture: “The more appropriate metaphor to express that relation—reinforced by government decisions of the Supreme Court—is a curtain that defines boundaries but is not a barrier to the passage of light and love and mutual support from one side to another.” Such a curtain, Oaks suggested, creates the space for a “fairness for all” approach when freedoms seemingly clash.


He used as his example the championing earlier this year by the Mormon church of state legislation in Utah that bans discrimination on the basis of sexual orientation and gender identity in housing and employment while creating robust religious freedom protections for faith-based organizations.  The legislation advances both LGBT and religious rights, an outcome unlikely if such decisions are made by judges rather than legislators, because courts can only declare, not work out complex issues.


Elder Oaks, in his speech, had said that “religious faith . . . is the key to human dignity.”  Many disagree, of course.  Indeed, as he noted, many now see other identifying factors, such as race or sexual orientation, as the axis on which human dignity hinges. Thus, our society has at least two different concepts of human dignity.  One response has been to place “freedom from discrimination on these [new bases of human dignity] above the constitutional guarantee of free exercise of religion”—marginalizing religion.  Better is to do what Utah did, safeguarding both concepts of dignity by protecting religion as well as LGBT rights.


Will The Equality Act Provide Space for Religious Organizations to Serve on Equal Footing?


There are no comprehensive SOGI protections in federal law.  Approximately 22 number states, and many, especially large, municipalities and some counties do protect sexual orientation and a fewer number add gender identity.  Over the years there have been many, so far unsuccessful, efforts to protect sexual orientation from discrimination in federal employment law, and some federal administrative changes have provided limited protections.  Obergefell gave new impetus to pushing for federal protections to make this uniform across the US.  That impetus has yielded the Equality Act, a bill introduced into both the House and Senate this summer.

Because it is a piece of federal legislation that could become a model for states and localities, I will first consider the Equality Act, a bill in Congress that would add sexual orientation and gender identity to the other protected classes (race, color, religion, sex, national origin) in our classic federal civil rights laws. The Equality Act has a broad sweep. It would forbid in federal law sexual orientation and gender identity discrimination in private employment, housing, public accommodations (a category that would be expanded almost without limit), public education, federal grants and contracts, consumer credit, and jury selection. Introduced shortly after the US Supreme Court’s same-sex marriage decision, it quickly gained many Democratic co-sponsors and the approval of many progressive organizations. It has been endorsed by Democratic presidential candidates and by Vice President Joe Biden.


Yet the White House did not speak about the bill until three months after its introduction. Then White House spokesman Josh Earnest said that the Obama administration, while supportive of the intentions of the bill, was not prepared to endorse its specific provisions, pointing out, “There are significant consequences to this bill going into effect. It has an impact in housing law and other policies in the federal government, so it is something that is still being reviewed by the federal government.”


After a lengthy administration review, Earnest gave the qualified approval of the White House on November 10: “Upon that review it is now clear that the administration strongly supports the Equality Act… We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights…with the religious liberty that we hold dear in this country.”


How should faith-based organizations and religious leaders interpret the administration’s statement? Cautious optimism and careful engagement may be the best approach.


Because SOGI protections, without specific religious freedom protection, will undermine the freedom of people and organizations with a religiously conservative view of human sexuality to live consistently with their convictions, we should be glad the administration took a long and careful look at the bill, notwithstanding progressives’ enthusiasm for it. The measured language of the administration’s endorsement of the bill also provides (some) reason for optimism. Earnest, after announcing the endorsement, said that the administration anticipated working with Congress to make sure that “the legislative process produces a result that balances” LGBT rights with religious rights. Does that mean that the apparent endorsement is qualified and that the White House will only support a bill that has stronger religious freedom protections?


In my view, there is no good reason that Americans who are certain that LGBT rights deserve the same protections that people of different races and ethnicities receive should for that reason devalue the fundamental rights of religious exercise, both individual and institutional. Historically, first among our “bedrock principles of civil rights” is the right to practice religion. We do this individually and institutionally, privately and publicly, in ways that are inherently religious, like prayer, and in ways that are outwardly focused on serving others, like feeding the homeless.


Civil rights and religious liberty are not two opposing ideals to put into rhetorical contrast. The administration would have done a great service for the nation by using language that acknowledges religious freedom as a key civil right, not as something different or lesser. Civil rights laws specifically protect religious freedom, and the civil rights movement itself depended specifically on religion motivating people to seek justice.


There is no perfect legislative way to advance LGBT rights without some limitations on other rights, including religious freedom. But it is possible to advance the former without suppressing the latter. As I previously mentioned, earlier in 2015, the LDS Church in Utah worked with LGBT advocates on a legislative package that has been termed a “fairness for all” approach. While not a perfect solution, LGBT people gained needed protection from discrimination and religious organizations were assured protections that enable them to maintain their beliefs and practices—their freedom to serve as God has called them to serve. Our president and Congress ought to be aiming for an outcome at least this good.


It is possible for LGBT rights to be expanded in a way that does not extinguish the freedoms faith-based organizations need.  In a recent Philadelphia Tribute article that covered a debate on religious freedom and sexual freedom, law professor Robin Fretwell Wilson said “the major takeaway is that we see religious freedom as being at odds with gay rights. It doesn’t have to be that way. [W]e can advance the interests of the LGBT community and make it possible for people to adhere to a traditional view of marriage… It happened with the Utah Compromise. We need to have more solutions like that to problems instead of solutions that have us being at odds all the time and litigating.”


The Current Legal Framework

 Although the Equality Act has been introduced at the federal level, it has very little chance of passing soon.  But at state and local level there are SOGI laws.  These all have religious freedom protections to varying degrees.


SOGI Legislation and Religious Staffing


While the Civil Rights Act of 1964 prohibited employment discrimination based on race, color, national origin, sex, and religion, it upheld religious freedom by allowing organizations whose “purpose and character are primarily religious” an exemption to consider religion in staffing decisions. The 1972 amendment to the Civil Rights Act expanded the exemption to cover every position in a religious organization, and not only positions with religious duties.

In 1987, the U.S. Supreme unanimously affirmed the religious staffing exemption for all positions in a case concerning a Mormon-run gymnasium’s practice of hiring only Mormons in janitorial positions (Corporation of the Presiding Bishop v. Amos).


Because of the religious staffing exemption, faith-based organizations generally have the freedom to hire employees who fully embody their religious mission, and thus are best equipped to share it. Generally, courts interpret this so-called religious staffing or religious hiring freedom to mean that the religious organization can consider the conduct, and not just stated beliefs, of job applicants, so that the religious employer is able to decide whether an applicant is sincerely committed to the religious convictions that animate the organization. 


In most sexual orientation and gender identity nondiscrimination legislation, there is not clarity about whether religious employers sued for SOGI discrimination can base their defense off Title VII’s religious exemption. Essentially, will religious employers be able to define religious identity and thus employability not just by a title (Baptist, Muslim, Baha’i) but also by faith-inspired conduct (not smoking, certain expectations of sexual behavior?) May the government decide what counts as essential to true religion?


Clearing up the confusion surrounding the religious staffing exemption will demand more than just inserting Title VII’s religious exemption into SOGI legislation. Existing and pending federal, state, and local sexual orientation and gender identity non-discrimination laws ought to include a clarification of the religious staffing right from Title VII to continue the protection of religious staffing for faith-based organizations, even when it extends to employee conduct.


What will be the consequences for religious staffing practices like these if sexual orientation and gender identity become prohibited bases of job discrimination, as the Equality Act proposes? A religious organization will remain free to consider religion staffing, but is unclear what will happen if a faith-based organization decides a potential employee is religiously unsuitable because of his same-sex marriage or other conduct or relationships related to the new protected categories?  For example, if the organization is Catholic and he says he is Catholic, but the organization prizes not just a declaration of Catholic belief but a lifestyle that is compatible with the teachings of the Catholic Church, including generosity toward the poor, the cherishing of life from conception onward, and marriage as a life-long union of one man and one woman.  Is its decision not to hire the applicant a (legal) employment decision based on religion or an (illegal) decision based on sexual orientation?


The Equal Employment Opportunity Commission will likely claim the decision is an illegal act of sexual orientation discrimination.  Will the courts agree?  In general, they have ruled that the religious staffing exemption protects religion-based employment decisions beyond the narrow and formalistic question of whether the person claims to be of the same religion as the employer, and instead have accepted that the employer has to be free to assess the authenticity of that claim.


But the courts could rule the other way, narrowing the concept of “religion” when it intersects with SOGI.  Such a formalistic religious hiring freedom will do little to enable religious organizations to maintain a robust religious identity, to constitute a community of like-minded people whose lives are witnesses to the religious commitments the organization professes to follow. The Equality Act would better protect the religious freedom of faith-based organizations by exempting authentic religious organizations entirely from the proposed new SOGI employment nondiscrimination requirements. The religious staffing freedom would not be undermined even as LGBT employees and job seekers are protected in organizations with no religiously based convictions about LGBT conduct. 


The question of how protective Title VII exemptions will be when SOGI nondiscrimination public policies are in place has already been put on the table by President Obama’s Executive Order of July 2014, prohibiting job discrimination on the bases of sexual orientation and gender identity by federal contractors.  The federal contracting rules include a religious exemption like those in Title VII. Now religious organizations that do or might engage in federal contracting are facing a big question and significant legal risk:  if their religious employment policies include a conduct standard requiring conservative sexual morality, have those employment policies now become illegal, with the freedom to consider religion radically narrowed by the SOGI nondiscrimination requirements?


For the Equality Act to protect LGBT rights without undermining the religious freedom of faith-based organizations, its employment protections need to be significantly modified.  One solution:  a religious organization exemption can be added.  The language for the exemption, and the accompanying non-retaliation language, can be taken directly from the Employment Nondiscrimination Act (ENDA) bill that the US Senate adopted in November, 2013 (the House never took up the bill).  Another solution:  the addition of some words of clarification to Title VII.  Those words would explain that the “religion” that religious employers are legally free to consider is more than a formalism but instead encompasses not only religious beliefs but also conduct standards rooted in those religious beliefs.  Then religious employers who have religion-based employment policies and consistently apply them will continue to be free to build and safeguard staffs that reflect and embody the religious convictions that the organizations desire to honor.


SOGI Legislation and Federal Grant Funding

From the earliest days of this nation, government funded partnerships. These got a new impetus and legal clarity with the federal faith-based initiative which was started during the Clinton administration, expanded under the Bush admin, and has been maintained by Obama.


There have been some recent efforts to add SOGI nondiscrimination to federal grant programs.  These efforts have raised two questions.  One has to do with religious staffing:  whether, as with the LGBT Executive Order for federal contracting, a new job nondiscrimination rule in federal grants will be written in a way that affirms that the religious staffing freedom includes conduct.  The other concerns how FBOs serve beneficiaries entitled to federally funded services.  Everyone eligible should be able to get respectful services. But is there room for diversity in the way each federally supported faith-based organization provides those services in exactly the same way or can and should there be diversity, given the moral differences we have?  The all-encompassing nature of some SOGI laws creates concerns that some faith-based organizations may be prevented from receiving federal funding for engaging in staffing and services aligned with their faith-based missions. Supporters of faith-based organizations should hope that the administration is considering how to bring together its support for expanded federal LGBT protections with its policies in favor of ensuring a welcoming environment in federal programs for participation by faith-based organizations.


Since 2008 President Obama has maintained the federal faith-based initiative and its work to create a level playing field in federal funding programs and unfunded partnerships so that faith-based organizations have the same opportunity to participate as secular organizations do.  And the administration has stood against outside pressure to limit the exemption in federal law that permits religious organizations to consider religion when making staffing decisions.


Most recently, as noted in a blog post from the White House Office of Faith-Based and Neighborhood Partnerships, the administration has maintained the equal treatment approach as it has proposed slight changes to the federal regulations concerning government partnerships with faith-based organizations:


“[T]he Obama Administration is taking an important step toward common-ground reforms that strengthen the partnerships the federal government forms with faith-based and community organizations for the purpose of serving people in need…[These reforms] assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents.”


The Equality Act, as introduced, with its sweeping protections for LGBT rights but very limited protection for religious freedom, would undermine the capacity of the White House Office of Faith-Based and Neighborhood Partnerships to create a hospitable environment in federal funding for faith-based organizations.  The Equality Act, for example, would bar from federal grants and contracts any organization that because of religious hiring and a conservative conduct standard for employees was deemed discriminatory—even though it would serve everyone eligible for the federally funded services. This provision, without a protection to preserve the capacity of faith-based organizations to partner with federal government in government grants and contracts, would be detrimental to the religious freedom of faith-based organizations. Moreover, if the Equality Act became federal law without significant changes to better protect religious freedom, it would most likely serve as a model for state and local legislation, which could further limit the freedom of FBOs to partner with state and local governments.




Engage – Partner with the LGBT Community to Create Stronger Legislation

People of faith and faith-based organizations should recognize that blindly dismissing sexual orientation and gender identity legislation is not a wise long-term move toward the goal of religious freedom. Instead, faith-based organizations should care about efforts to include strong religious protection language in sexual orientation and gender identity legislation. Because humans are diverse, justice and human dignity require that governments protect everyone. Diversity is inherent to human dignity and faith-based organizations should seek to respect differences in community, even when there are important disagreements. Likewise, LGBT advocates should respect the diversity of faiths and traditions that make up the many civil society institutions in America today.


It is worth mentioning again that Utah is an example of a state where religious groups, led by the Mormon church, and LGBT advocates came together to create an effective “fairness for all” piece of legislation, titled S.B. 296 Antidiscrimination and Religious Freedom Amendments.  This law, passed in March 2015, prohibits secular organizations from hiring or firing someone based on sexual orientation or gender identity. In addition, it outlaws discriminatory decisions by landlords that prevented LGBT individuals from having equal access to housing. At the same time, S.B. 296 provides a religious exemption for faith-based charities, schools, religious leaders and affiliated corporations. It protects employees’ reasonable expression of religious or moral beliefs in the workplace. While the compromise did not address public accommodations or questions about wedding business’ services, it shows what is possible when groups work toward principled pluralism instead of just advancing their own interests, valid as they might be.

Douglas Laycock, a religious freedom scholar at the University of Virginia, supports SOGI laws and religious organizations’ right to serve according to their religious precepts. He elaborates, The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity… Both same-sex couples and religious dissenters also seek to live out their identities in ways that are public in the sense of being socially apparent and socially acknowledged.”


Policymakers need help from FBOs in seeing the connection between the essential services they provide and the religious precepts that motivate that belief. Others may need help understanding that religious exemptions in SOGIs have the aim of preserving the historic freedom for organizations to act on the core tenets of their faith- not rejecting services to anyone because of their sexual orientation or gender identity, but having the freedom to provide services in a distinctively faith-shaped manner.



In Conclusion

Our constitutional and historical tradition is to honor conscience and religion, even as government has increasingly acted to ensure that different groups will not suffer invidious discrimination because of their characteristics.  This tradition has been honored in civil rights laws, and—although it could be strengthened—in SOGI laws up to now.  In addition, legislators have federally and in many states enacted RFRAs to be sure the government has a sufficient reason before it can curtail religious exercise.   However with increased misunderstanding of the value of faith-based organizations, it is essential that faith-based organizations show their societal contributions and the advocate for public policies that make them possible. FBOs must also take advantage of opportunities to be engaged in the crafting of SOGI legislation, as SOGI laws without religious exemptions have the ability to endanger some of the practices that distinguish FBOs.


Since many of the SOGI laws will draw from the Civil Rights Act of 1964, it is beneficial to revisit this signature piece of legislation to see how religious exemptions were included. Religious freedom advocates ought to consider not just collaborating with other religious freedom advocates, but actively build bridges to groups pushing for SOGI protections.  Invidious discrimination is wrong; but suppressing wrongful discrimination by undermining legitimate religious freedom is also wrong and makes it ever more important to partner with the LGBT community and other organizations passionate about religious freedom. Together, we can promote an atmosphere that will preserve the unique character of organizations of all faiths and allow different groups to place their claims upon society.

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