Archive for category: Anti-Discrimination Laws

I think Kathryn and I have many more agreements than we have differences on this issue, though that might not be apparent based on the perspectives from which we approach this issue. I would like to devote this last essay to hope: hope that Kathryn and I, both relatively young women who know the law and may be on the forefront of shaping these conversations for years to come, could try to create an ongoing forum for understanding and working toward common goals.  Real respect is not based on complete affirmation of each others’ opinions or worldviews, for it is easy to give respect to those with whom you agree.  But rather, I am seeking a respect between people who will, most probably, not come to a common understanding of what is God’s best for Christian faithfulness and human sexuality.  

Let me underscore again that I completely agree with Kathryn when she states: “If we are building a theology of mutual respect, how is leaving LGBT people to sleep on the streets because a religious shelter refuses to take them a sign of respect?” This is not respect.  Turning away some of the most marginalized members of a community from social services they desperately need is especially egregious for faith-based organizations that follow the teachings of Christ. As we see time and again in the New Testament, Jesus directed His ministry to the disenfranchised, the oppressed, those on the fringes of society.  I have, on more than one occasion, advocated for conservative faith-based organizational leaders to support protections against SOGI discrimination in services offered to the community. Often, leaders in faith communities do not know about the very real challenges the LGBT community faces, especially the many young people who have been turned away by their families.  For them to be open to supporting SOGI legislation, they first have to be educated about the tangible harms being done to the LGBT community.  From Kathryn’s perspective, and honestly, from my perspective as well, this may seem silly.  How could people not know about the harm suffered by the LGBT community at the hands of landlords who have denied them housing, employers who have denied them employment, and places of accommodation that have denied them services?  But the truth is, there are great cultural, generational, religious and political divides in this country.  Many Americans, especially those over 50, haven’t ever heard the personal stories of hardship that many LGBT people face. 

For a meaningful, respectful dialogue to take place, people who have disparate views of sexuality have to be willing to come together and really listen to one another.  Proximity is usually the best antidote to misunderstanding and enmity.  I have seen more than one faith leader come to realize that their (conservative) theological view of same-sex relationships does not preclude them from coming to a theologically sound position of supporting the idea of SOGI legislation.  I am sure that Kathryn would want to see these faith leaders change their theological views of human sexuality to become inclusive and affirming of same-sex relationships, as well.  This is a reasonable thing for her to hope for.  And perhaps, in time, some faith-based institutions and leaders will come to a different doctrinal stance on same-sex relationships.  And many, probably, will maintain their current doctrinal views. But, especially for the purposes of this conversation, we must recognize that it is important to demonstrate to people who wont change their views on biblical sexuality that they can still support legal protections for marginalized people (with, sometimes, well-crafted exemptions for religious nonprofits to staff based on their faith precepts).  

Kathryn’s language about respect, in part, concerns me. She makes the argument that a religious person or institution cannot show respect for members of the LGBT community unless they can affirm the ways in which these individuals express themselves and engage in relationships.  I wholeheartedly disagree.  Religious institutions often exist mainly to daily serve with respect those daily of different religions and worldviews than themselves. Respect is treating another person with dignity and care, even though there are significant, even vast differences.  In our society with so many different religions, philosophical views, races, ethnicities, ethical systems, and more, we need to learn genuine respect–precisely because we do differ on so many important things.  

Part of respect is language. Kathryn’s broad-stroke assumptions that all who support man-woman marriage must believe that LGBT individuals are “abominations” who should be “stoned” or “fried,” I believe, demonstrate a lack of respect for the many people who hold conservative sexual views yet deeply value that lives and human dignity of their gay and transgender neighbors. Many who hold the view that same-sex relationships are not biblically supported express their views with love and compassion. Even Justice Kennedy stated in his majority opinion in Obergefell: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” In other words, not everyone who opposes same-sex marriage does so with the hate and venom Kathryn alluded to. They do not have to affirm conduct they believe to be outside of God’s paradigm for human flourishing to be able to affirm that all people, of every sexual orientation, race, class, or identity, are children of God, beautifully and wonderfully made.  

Kathryn also takes liberties when it comes to how she (mis)characterizes religious homeless shelters. I completely support SOGI laws that would not wholesale exempt religious shelters from serving everyone eligible regardless of their sexual orientation and gender identity. At the same time, in my work with hundreds of faith-based social service organizations, I have never come across a shelter, food bank, or jobs program that denied services to an individual because of their sexual orientation or gender identity.  That is not to say that these instances of SOGI discrimination by faith-based social services providers (those providing housing, food, workforce training, or other such services) do not happen.  I am sure there are instances where members of the LGBT community have been denied admittance to a shelter because of their sexual orientation.  But I point this out simply to say that my organization has worked closely with a large segment of the faith-based nonprofit social services sector, and SOGI discrimination in these sorts of services simply is not the standard practice, nor would it be accepted or tolerated by the larger faith-based community. For example, Rev. Michael Brown, Executive Director of the Kalamazoo Rescue Mission wrote in an open letter in MLive “Because we recognize that Muslims observe different eating habits, we have attempted to accommodate this and to ensure that an alternative is available when pork is served as the main course. There are [also] persons from our community residing at the Gospel Mission who are gay or transgender and many who are not Christian. They are all welcomed to the services of the Mission.” 

Religious Freedom Restoration Acts (RFRAs)

So what is a proper way to determine which exemptions should be given in SOGI for religious institutions?  I have already stated my view that religious exemptions are most needed in SOGI employment nondiscrimination laws for religious nonprofit employers.  I have also explained, at length, why this sort of exemption is entirely different from broad exemptions for religious businesses and social services agencies serving the community. Here is an explanation of my reasoning: I believe that that Religious Freedom Restoration Act outlines a proper balancing test for weighing the rights of religious actors vs the government’s interests.  The federal RFRA establishes the strict scrutiny test– if a generally applicable law “substantially burdens” one’s free exercise of religion, only the existence of the government’s “compelling interest” can allow the burdening of the claimant’s religious freedom. In addition, the government’s compelling interest has to be fulfilled in the “least restrictive means” possible. 

I would like to suggest to Kathryn that using this balancing inquiry, exemptions for religious nonprofit organizations to staff consistently and transparently on a faith basis are justified. Here’s why: a religious institution must be able to employ people who fully embody its religious mission and doctrinal practices.  The ability of a religious organization to hire based on faith is central to its ability to exercise its religion without substantial burden. This is the first inquiry of the RFRA balancing test.  Yet, as this current language from   USAID demonstrates, even the Obama administration recognizes the vital importance of allowing a faith-based organization to exercise its faith in staffing:

“This special provision [Title VII provision allowing religious organizations to hire based on faith] for faith-based groups protects the religious liberty of communities of faith. It permits faith-based groups to promote common values, a sense of community and unity of purpose, and shared experiences through service – all of which contribute to a religious organization’s effectiveness. In order for a religious organization to define or carry out its mission, it is important that it be able to take religion into account in hiring staff. Just as a college or university can take the academic credentials of an applicant for a professorship into consideration in order to maintain high standards, or an environmental organization can consider the views of potential employees on conservation, so too should a faith-based organization be able to take into account an applicant’s religious belief when making a hiring decision.” 

https://www.usaid.gov/work-usaid/partnership-opportunities/faith-based-community-organizations/faith-based-organizations#Q9

Therefore, I would argue that under a RFRA balancing inquiry, it is clear that a religious organization’s religious practices are substantially burdened if they are forced to hire employees who are engaging in conduct or expressions that are in direct conflict with the doctrinal beliefs and practices of the faith-based institution.  I hope Kathryn and I can both agree on this, even if we disagree about whether an exemption is appropriate. I believe it is clear that there is harm being done to the faith-based organization when it is not allowed to hire employees aligned with its faith-shaped mission and practices.  Along the same lines, there would be harm done to an organization like Believe Out Loud, a faith-based organization “that empowers Christians to work for lesbian, gay, bisexual, transgender, and queer (LGBTQ) equality” if they were not allowed to staff according to their faith-based mission and were expected to hire all Christians indiscriminately, including those whose religious beliefs did not support same-sex relationships or gender variant identity expressions.

The next inquiry is whether there is a compelling interest in passing a SOGI employment nondiscrimination act.  I believe that a case can be made that there is a compelling interest to end workplace discrimination in the secular and governmental spheres for members of the LGBT community.  According to the William Institute on Sexual Orientation Law and Public Policy, 15 to 43 percent of gay and transgender employees have experienced discrimination of some form in the workplace and a full 90 percent of transgender have been mistreated in their places of employment.   

The final inquiry in a RFRA balancing test is whether the law is achieving its compelling interest through the “least restrictive means” necessary.  With respect to a SOGI nondiscrimination law without a religious accommodation for religious organizations, I believe the law is not narrowly tailored enough under a strict scrutiny test.  Providing a clarification that religious employers are still allowed to hire based on faith would not impinge on the capacity of LGBT people to be protected from adverse actions in the vast majority of workplaces in this country.  In fact, if the argument is that LGBT people suffer higher levels of unemployment now because they are not protected from discrimination by law, then passing such a SOGI employment nondiscrimination act with a properly tailored provision for religious organizations to hire based on religion would still achieve the goal of protecting LGBT workers from baseless discrimination by secular and governmental employers. And such a provision could be tailored in a way as to prevent any potential abuse: a religious employer could be required to certify that it is a religious organization which considers religion in hiring and that it would substantially burden its religious exercise if the religious organization was mandated to exercise employment practices contrary to its religious precepts and practices. This certification process could be subject to governmental inquiry as to ensure that employers were not merely claiming a pre-textual reason for SOGI discrimination, as opposed to a sincerely held and consistently practiced religious reason.

Thus, I believe that SOGI accommodations are justified for religious organizations in an employment context under a strict scrutiny balancing inquiry.  Specifically, I believe that such an accommodation accomplishes beautifully the “least restrictive means” part of the test, achieving both the protection of the religious exercise of faith-based organizations and the compelling interest of preventing LGBT workplace discrimination, simultaneously.  Win-win might not be the right expression.  After all, some staunch LGBT advocates would rather see no religious accommodations under any circumstance.  And some staunch religious leaders would rather see SOGI laws never pass under any circumstance.  But balancing interests is not a zero-sum game.  In fact, it isn’t a game at all.  Real injustices, both for LGBT people and for the religious freedom of faith-based organizations, are on the line. This may be a perfect solution to no one.  But it is, or at least should be, a possible, livable solution for everyone.

I want to begin by saying how thankful I am for the opportunity to engage in this dialogue with Kathryn on these very complex subjects.  I want to affirm her willingness to share her personal connections and stories that have shaped how she thinks about these challenging topics.  In light of her openness in her first post, I would also like to acknowledge some personal truths.  I am 29 years old, squarely within the millennial generation. There are many people in my life who identify as LGBT that I love, and I deeply care about their well-being and treatment. I identify, with every fiber of my being, with the Gospel: with the unconditional love of Christ, with the physical embodiment of grace, from which all love and redemption springs.  I also identify as a heterosexual female.  I recognize that, in some ways, I speak from a place of privilege.  Just as I have learned that it is a privilege that I am not daily confronted with racial challenges because I am white, I have also learned that I’m privileged because I am not daily and personally confronted with the challenges of sexual orientation because I am attracted to members of the opposite sex.  As I said in my opening post, race and sexual orientation (and/or gender identity) are not situated in the exact same historical context, yet I can acknowledge that there are limited, helpful comparisons that can be drawn.  These comparisons, however, are bounded in real ways that I will discuss further later in this response.

 

I want to acknowledge our agreements, as I believe we have significant areas of consensus.  I agree that SOGI laws should be passed on a local, state and federal level that protect LGBT individuals from discrimination in the areas of housing and consumer protection, and that such laws generally do not require exemptions for religious institutions. I agree that a landlord should not be able to turn away a same-sex couple for “religious reasons.”  I agree a transgender woman should not be denied access to credit.  Such acts of baseless discrimination do happen, disproportionately, to members of the LGBT community. These are not hypothetical wrongs, but real instances of invidious discrimination that have unfairly impacted LGBT individuals.  SOGI laws are especially necessary in light of Obergefell.  It is wrong that a same-sex couple now has the legal right to marry, yet their doing so could still result in discrimination or disparate treatment in housing, credit opportunity, secular employment, and/or public accommodations.

 

I also acknowledge, although Kathryn did not specifically take up employment in her initial post, that I venture that we would both agree about the importance of passing laws protecting LGBT individuals from wrongful employment discrimination, on a local, state, and federal level.  We would probably diverge when it comes to whether SOGI employment nondiscrimination laws should contain an accommodation for religious institutions.  It is important to note that on a real and pragmatic level, all the state SOGI laws do contain an accommodation of some sort for religious institutions to continue to hire based on faith.  This is important, both in principle and in practice.  

 

In practice, adding an accommodation to a SOGI employment law means that the statue is more likely to pass. When passed, such employment laws, even with religious accommodations, offer complete protection against sexual orientation or gender identity discrimination in all secular and governmental workplaces. This level of protection, sadly, is still absent in over half of the states.  Right now, in approximately 38 states in this country, LGBT employees have no legal recourse if their employer were to fire them tomorrow for their sexual orientation or gender identity. Trying to pass SOGI employment nondiscrimination laws without religious accommodations will, on a pragmatic level, just delay or completely halt the passage of the legal protection in employment that LGBT individuals deserve.  As religious freedom legal scholar and University of Virginia Law Professor Doug Laycock stated, with respect to the Utah Compromise: “The religious exemptions made it possible to enact a gay rights law….The gay rights side increasingly appears to oppose any exemptions at all, except that they still seem to agree that the clergy don’t have to do the weddings. And we can’t even enact basic gay rights laws in most of the red states.”

 

In principle, religious accommodations also make sense, specifically for explicitly religious nonprofit organizations which hold themselves out to the public as having a faith-based mission for their services. As I previously mentioned, Title VII of the Civil Rights Act recognizes the civil rights not just of individuals to not be discriminated against in their employment because of their religion.  Title VII also recognizes the civil right of religious organizations to engage in employment practices aligned with their faith-based missions.  As my former law professor, Doug Laycock, put it: “A right to believe your religion, with no right to practice it, is meaningless. It is no more reasonable to expect religious believers not to act on their understanding of God’s will than to expect all gays and lesbians to remain celibate.” It is, on principle, sound policy to hold up and reaffirm, through explicit accommodations for religious nonprofit organizations in SOGI employment nondiscrimination laws, that they retain their right to hire based on faith, even if their religious precepts preclude them from hiring individuals who engage in behaviors that are incongruous to their religious beliefs. 

 

The LeBoon case supports this logic. In this case, a Jewish Community Center dismissed an Evangelical Christian employee after she attended a “Jews for Jesus” meeting. She sued, claiming employment discrimination on the basis of religion.  The Court of Appeals for the Third Circuit upheld the rights of the Jewish Community Center, under section 702 of Title VII, to consider religion in employment decisions. The LeBoon court spelled out nine factors that other courts have considered to determine whether an organization meets the standard of religious organization for the capacity to hire based on faith under 702, including whether: “(1) the entity operates for a profit, (2) it produces a secular product,(3) its articles of incorporation or other pertinent documents state a religious

purpose, (4) it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) a formally religious entity participates in its management, (6) it holds itself out to the public as secular or sectarian, (7) it regularly includes prayer or other forms of worship in its activities, (8) it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) its membership is made up by coreligionists.” 

 

Not all of these factors will be relevant or present in every case, the court underscored.  In LeBoon, the court found that the Jewish Community Center did qualify as a religious organization that could hire based on faith because, among other reasons, it stated a religious purpose in its incorporation documents, several Rabbis of local synagogues sat on its board, it received support from local houses of worship, it offered educational programs with Jewish content, and it was a non-profit. I believe that if an organization can prove through consideration of the LeBoon factors that it is a religious organization under section 702, it should be allowed to express a religiously based preference for its employees, those who embody the organization’s mission to those it serves in the organization’s name.  This necessarily means that the religious organization, not the employee, must be able to decide what its religious standards and convictions are, not just in name, but in practice. 

 

The dismissed employee in LeBoon who attended a “Jews for Jesus” meeting may have considered herself a Messianic Jew, but the JCC had a very different idea about what it meant to practice the tenets of Judaism. Ultimately, the employee’s conduct (her attendance of a Jews for Jesus meeting) was incongruous with the religious precepts of her religious employer, making her continued employment there incompatible with the faith-based mission of the Jewish Community Center. Likewise, a Catholic  nonprofit social services organization with a preference for employing Catholics willing to live out Catholic ethics at work and in personal life should be able to have a preference for Catholic employees who are not only Catholic by self-identification, but willing to live out the teachings of the church in their conduct toward the poor, in their regular church attendance, and in their sexual conduct or expressions of identity.

 

If I had to pick one area to press for accommodations for religious institutions in SOGI nondiscrimination laws, it would be this: the capacity of faith-based nonprofits who hold themselves out as explicitly religious to be able to continue to select employees who embody, in belief and practice, the religious precepts (including conduct standards) that shape their institutional DNA. I am concerned that Kathryn spent much of her essay discussing the question of public accommodations for the LGBT community, yet this was not part of the question asked of us for the purposes of this discussion.  I will discuss public accommodations later in my response to this post, to adequately respond to points Kathryn raised.  I do think public accommodations is very important, but I also think there is an important difference to be drawn between a requirement for a religious service organization who provides services to the public to serve everyone regardless of sexual orientation and gender identity, and a requirement that the very same faith-based institution make employment decisions without consideration of it religious precepts.  I would love to hear Kathryn’s thoughts about the nuances and differences between public accommodations and employment.

 

In most instances, a faith-based organization that serves the public should not be exempt from serving a transgender or gay person.  I believe personally that in general, religious food banks, soup kitchens, jobs programs, and even shelters should not be exempt from serving LGBT individuals.  Many of these individuals, as Kathryn points out in the case of LGBT youth, are disproportionately represented in the homeless or vulnerable population.  There are a few noteworthy exceptions, such as Christian counseling and adoption, which I hope to discuss  in a later response. 

 

Yet there is an essential distinction to be made between provision of services and employment. Mission-centric employment practices are essential to most organizations, not just religious ones.   Many secular employers require their employees adhere to conduct aligned with their missions.  For example, PETA (People for the Ethical Treatment of Animals) lists right on their job descriptions that a requirement of employment is “adherence to a healthy vegan lifestyle.” It is easy to understand why it would undercut the organization’s mission for a PETA employee to be seen at the local Burger King enjoying a Whopper, even when she is off the clock.  Likewise, Planned Parenthood job descriptions specify that applicants must demonstrate “commitment to the goals and mission of Planned Parenthood.”  This would, most certainly, limit a Planned Parenthood employee’s ability to attend pro-life rallies on her own time, because this conduct would be inconsistent with the mission of her employer.  

 

In America, we see a diverse and differentiated spectrum of civil society organizations, many whose missions are often directly at odds with one another.  Faith-based organizations need the continued protection to be able to hire individuals who embody not just the specific service-sector mission of the organization, but the faith-centric aspects of the mission as well. 

 

Justice Kennedy, in his majority opinion in Obergefell, seems to echo just this sentiment: 

 

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” 

 

Merriam-Webster defines teach as “to instruct by precept, example, or experience.” Based on this expansive definition, a strong case could be made that teaching necessitates in lived examples and authentic expressions.  It would not make sense to affirm in a landmark Supreme Court ruling that a faith-based institution has the right to teach the traditional definition of  marriage as a man-woman lifelong union, but then not be permitted to carry out human resources practices that bring to life, through example and experience, these very teachings.  Further,  in his discussion of religious freedom, Kennedy could have omitted the term “religious organization” and replaced it with “houses of worship” or something else more akin to the narrow definition of church.  He did not.  

 

I also respectfully disagree with Kathryn’s citation of the Bob Jones decision as evidence for why tax-exempt status should and can be pulled from religious institutions that adhere to an orthodox definition of marriage.  Kathryn states: “To allow non-profit organizations to discriminate is to force all taxpayers, regardless of religion, to contribute to a discriminatory institution. This is more than mere religious freedom, it is the imposition of a particular religion on the populous as a whole, and indeed is forcing LGBT people to subsidize an organization from which they are barred from participating.”  Yet tax-exempt status is given to groups who support gun control and those who support gun ownership, to those who still oppose abortion 42 years after Roe v Wade and to those who advocate for a woman’s right to choose.  Tax-exempt status does not confer governmental agreement on all the positions an organization makes.  Vegetarian societies are not going to lose their tax-exempt status because they force meat-eaters to “subsidize an organization from which they are barred from participating.”  Likewise, LGBT advocacy groups are not going to lose their tax-exempt status because they bar from employment and/or participation individuals who affirm a different paradigm of human sexuality and human flourishing, nor should they.

 

 The Council on Christian Colleges and Universities’ public statement on Obergefell correctly underscores how Kennedy’s words ensure that tax-exempt status of conservative religious institutions is not, and should not be, at stake:

 

“Christian colleges…are institutions whose graduates contribute to the public good as artists, health care providers, educators, public servants and entrepreneurs. At the core of this work are deeply held religious beliefs. The Supreme Court’s majority opinion named with respect the plurality of religious beliefs throughout the United States, and specifically affirmed the space in the public square for individuals to have those beliefs and opinions…it stands to reason, then, that the tax-exempt status and religious hiring rights of religious institutions will be protected when they advance the religious mission of a college or university.”

 

In his majority opinion, Chief Justice Warren E. Burger stated that Bob Jones University’s policies against inter-racial relationships violated “a most fundamental national public policy.” Ira C. Lupu, a law professor at George Washington University, put it this way: “Bob Jones has never been extended to any context other than race,” noting that loss of tax-exempt status has never even been revoked from an organization due to sex discrimination.  Why?  Because while comparisons between race discrimination and sex discrimination can be illuminating, there are ultimately important distinctions between the history of racial and sex mistreatment, as well as how society perceives of race and sex distinctions, and even how the law treats the two. For example, race discrimination always is held to a strict scrutiny test, whereas sex discrimination is generally held to the lesser intermediate scrutiny test. 

 

Indeed, only a month after the Supreme Court’s marriage decision,  when asked whether he could ensure the IRS would not revoke the tax exempt status of religious organizations with traditional marriage values, IRS Commissioner John Koskinen told the Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts: “I can make that commitment…we see no basis for changing our examination criteria as a result of this Supreme Court case.”

 

In response to Kathryn’s application of sphere sovereignty, I would agree with her that the challenge of this framework is that the spheres can be defined in many ways to change the outcomes.  I would suggest that, when it comes to overreach, the civic government is actually extending into the religious sphere when it tries to set requirements for how explicitly religious organizations, whether they are houses of worship or social services organizations, make employment decisions.  It is clear from contrasting the language in Bob Jones and the language in Obergefell that the Supreme Court makes a sharp distinction between using religion to justify racial discrimination and a religious organization adhering to a traditional definition of marriage based on its faith precepts. Kennedy not only explicitly says the 1^st Amendment permits this view, but affirms the legitimacy of such religious “principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

 

I want to conclude with what I perceive to be our largest point of agreement.  On faith-based social services making up much of the public safety net, Kathryn states “This is a good thing, and as a public policy matter we should be encouraging faith-based community development and relief work. The government cannot provide a total safety net, and dedicated individuals working in their communities often have a better sense of what their community needs than a bureaucrat hundreds of miles away.” 

 

I couldn’t agree more.  

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.