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 1st 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.