A Threat to Religious Liberty? Hardly.
June was a tough month for the religious right. They counted on Supreme Court support for their “pro-family” agenda only to come up short. On June 15th, Justice Gorsuch led a 6-3 ruling protecting LGBTQ workers from employment discrimination under the Civil Rights Act of 1964. Two weeks later, Chief Justice Roberts cast a deciding (but luke-warm) vote to overturn a Louisiana law restricting abortion clinics.
Mainstream media outlets immediately highlighted Gorsuch and Roberts as wild cards in the battle for a conservative Court. Liberals are celebrating the possibility of Roberts and Gorsuch as potential allies and the GOP’s failure to secure Court victories.
Religious rights activists have matched liberal elation with conservative derision. For instance, Senator John Kennedy described Roberts as “flip-flopping like a banked catfish” and federal judges as “nothing but politicians.”
Carrie Severino, president of the Judicial Crisis Network — which spent millions on Gorsuch — charged the Scalia replacement with leading a “brute force attack on our constitutional system.”
Sen. Josh Hawley described the LGBTQ rights ruling as the “end of the conservative legal movement.” And Tony Perkins, president of the Family Research Council, deccried it as a “grave threat to religious liberty.”
Their disappointment is understandable—especially towards Gorsuch. Conservative Senators bankrupted Senate credibility to steal a Supreme Court nomination from President Obama. Religious conservatives supported Trump (and subverted their values) to secure the coveted nomination. Conservative groups spent billions to champion Gorsuch. In the eyes of religious conservatives, Gorsuch betrayed the conservative hands that fed him.
In reality, though, religious conservatives do not have much to fear from the Roberts Court. The decisions leave ample opportunity for conservatives to continue to berate LGBTQ workers and restrict women’s reproductive choice.
Limits on Reproductive Choice
But, the significance of these decisions depends on the willingness of institutions, organizations and ordinary people to comply. Opponents can minimize or even obliterate a court decision’s influence—particularly with highly contested rulings. And if courts provide a loophole or an escape hatch, you can bet opponents will exploit it.
Past abortion decisions highlight this point. Even with Roe v. Wade intact many women are unable to access a safe or affordable abortion. This is because anti-abortion activists have been limiting it’s reach since day one.
After the Roe Court’s decision to protect a woman’s right to choose an abortion, opponents initiated attacks on reproductive choice. They have pursued legislation to restrict, subvert and eviscerate the reach of Roe–and have largely succeeded.
Today, access to abortion services is appallingly low. Some of this stems from a simple, but effective, strategy of limiting supply. Many states have only a couple of providers. Currently, more than 11 million women of reproductive age must travel over an hour to find a provider. With mandatory 24-hour waiting periods, distance becomes a time consuming, expensive and (for many) impossible hurdle.
Even with Roe, public officials can keep abortions out of reach, by making them costly or imposing eligibility requirements. And states implemented these restrictions with full Court support.
In 1980, the Court, in Harris v. McRae, refused to require governments to provide financial support for abortions. While a woman has the right to choose abortion, government does not have to provide them.
In 1992, the Court dealt an even more significant blow to Roe—leaving women with the flimsiest of judicial protections. In Planned Parenthood of Pennsylvania v. Casey the Court upheld a Pennsylvania law imposing restrictions on women seeking abortions. Under Roe, states could not interfere during the first trimester. Casey overturned that crucial element. Now states have far more latitude to enact regulations in all phases of a woman’s pregnancy.
These rulings permit states to erect significant barriers for women seeking abortions. They are especially burdensome to income-constrained women whose freedom of choice is already severely restricted. Last month’s abortion decision does nothing to alter this reality. It simply preserves the last shred of Roe–which, thanks to past decisions, provides women with little protection from state interference.
Furthermore, this small reprieve is likely temporary. Roberts’ clear ambivalence towards pro-choice arguments leaves abortion rights firmly in the line of fire.
Still Room for LGBTQ Opposition
LGBTQ workers will likely face similar roadblocks. Even with the Court ruling, workers will face hostile work environments that go unchecked by the rule of law. We can see the options for continued resistance within the ruling itself. Gorsuch provides an obvious lifeline to religious conservatives.
First, the Court has a longstanding commitment to free speech and religious rights–a common defense in conservative arguments. Employers may be able to use speech or religious beliefs to legally defend their discriminatory behaviors against gay or trans workers.
This is nothing new. The Court has a long history of upholding speech challenges to policies supporting gay rights. In 1995, the Court protected the right of parade organizers to block the Irish-American Gay, Lesbian and Bisexual Group of Boston from marching as a group in Boston’s St. Patrick’s Day Parade.
Massachusetts prohibited sexual orientation discrimination and imposed a fine on the parade organizers. However, the Court sided with the parade organizers. They reasoned that the First Amendment protected the organizers’ rights to exclude any participants whose expressed views conflicted with their own. A gay rights group holding up a gay rights banner in a St. Patrick’s Day Parade posed a constitutional threat to the organizer’s protected speech rights.
In 2000, the Court upheld the right of a private organization, the Boy Scouts, to revoke James Dale’s status and membership as an assistant scoutmaster, after they found out that he was a member of and advocate for the LGBTQ community. The Court argued that the Scouts had a First Amendment right to exclude any individual who expressed ideas that ran afoul of the organization’s explicit and institutionalized values.
In more recent years, the Court’s commitment to religious rights and free speech has increased exponentially. When the Obama Administration enacted regulations requiring employers to provide certain forms of birth control under the Affordable Care Act, crafting empire Hobby Lobby opposed the regulation on religious grounds. Hobby Lobby is not a religious organization. Nevertheless, its owners argued that their small board of directors shared a collective and religiously-held opposition to certain forms of birth control. Any federal obligation to provide the contraceptives, they argued, would require them to subvert their deeply held religious beliefs.
In 2014, the Court sided with Hobby Lobby, basing their decision on the Religious Freedom and Restoration Act (RFRA). Signed into law in 1993, RFRA adds statutory sustenance to the Court’s “free exercise” doctrine, protecting individuals from having to sacrifice their religious beliefs in order to comply with public policy. The Court’s understanding of RFRA now makes it possible for “closely held corporations”—those with a majority of their holdings controlled by a small number of individuals—to claim religious exemptions from public policy. The vast majority of corporations in the United States fall within this category.
For Rea Carey, Executive Director of the National LGBTQ Task Force, the implications of Hobby Lobby for LGBTQ rights were obvious.
“If a private company can take its own religious beliefs and say you can’t have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them. We disagree with that trend. The implications of Hobby Lobby are becoming clear.”
Gay rights advocates agreed and instantly terminated negotiations with Congress to support the Employment Non-Discrimination Act (ENDA—legislation that would have barred employment discrimination on the basis of sexual orientation and gender identity. They understood that, with the Court’s expanded religious protections, ENDA would do little to protect LGBTQ workers from discrimination. If a crafting company could claim religious exemptions, what would stop any employer from using religion to bar LGBTQ workers?
R. G. Harris Funeral Home, a named defendant in the Bostock case, saw the applicability of Hobby Lobby and leaned heavily on a RFRA-based defense to support their decision to fire Aimee Stephens—a transgender woman. Inexplicably, however, the funeral parlor dropped this line of reasoning in their appeal to the Supreme Court—choosing the more aggressive argument to limit LGBTQ workers across the board.
This omission did not stop Gorsuch from speaking to religious protections, and referencing the funeral home’s RFRA claims. In the decision he provides a miles-wide window for future cases to pick up the point that Harris Funeral Home had dropped. Nothing in the decision, he argues, subverts the Court’s commitment “to preserving the promise of free exercise of religion enshrined in our Constitution.” RFRA, he reminds skeptics, further protects religious freedom by serving “as a kind of super statute, displacing the normal operation of other federal statutes. Given the right circumstances, he muses, “it might supersede Title VII’s commands.”
Discrimination is Difficult to Prove
Second, it is extremely difficult to win an employment discrimination case. For one, it is difficult to prove discirmination under the Civil Rights Act.
Individuals cannot simply offer evidence of poor treatment. They must demonstrate that employers either intentionally used race or gender to make hiring, firing or promotion decisions or that employers unintentionally burden workers because of their race or gender. Less than 1% of all employment discrimination complaints that make it to court prevail.
It is also risky to file these complaints—especially for workers who are being harassed or abused. Workers are frequently required to first report their harassment to supervisors or administrators before taking their claims to court. This leaves employees vulnerable to backlash—especially if the offender is a supervisor–and raises questions about the benefits of reporting harassment. This may be why, for instance, only 25% of women who are harassed at work initiate complaints.
Even if employees are able to report harassment the prospects for prevailing in court are slim. Courts have developed a formula (of sorts) for distinguishing between “run of the mill” and “hostile” work environments. First, the offending behaviors must be substantially severe or pervasive in order to be perceived as hostile. Second, the hostilty must be linked to characteristics like race or sex in order to be discriminatory.
This often becomes a numbers game. In order to determine “pervasiveness” judges actually count the number of offensive jokes or insults within a specific period. For a showing of “severity” judges often rely on some evidence of physical abuse. Mostly, these determinations are highly subjective—and equally unsupportive of employee claims.
These present specific challenges to LGBTQ workers, who are the frequent victims of workplace harassment. Recent surveys find that over 50% of LGBTQ employees hear anti-gay or trans jokes at work. Close to 20% have been subjected to inappropriate or harassing comments. Approximately 35% have experienced work-based verbal or physical harassment. And of course, these hostilities are all the more treacherous for LGBTQ workers of color.
This may reflect heterosexual ambivelance about having openly gay colleagues. For instance, 36% of heterosexual employees feel uncomfortable if their LGBTQ colleagues talked about dating. Almost 60% believe that any discussion of sexual orientation or gender identity is unprofessional.
These realities make coming out at work all the more difficult. Forty six percent of LGBTQ workers remain closeted at work out of fear that they will be harassed or judged and that no one will be held accountable. Twenty percent avoid workplace events altogether and 25 percent actively avoid biased co-workers.
On paper, the religious right did suffer setbacks to their flagship causes. Roe still stands. LGBTQ workers now have an avenue for reporting discrimination. But a glimpse below the surface of these decisions reveals a mountain of opportunities that “pro-family” advocates can pursue—and a Court that will be only too willing to lend their support.