Last week, the Equal Employment Opportunity Commission dropped an astounding ruling: By a 3-2 vote, it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
This is a big deal: The Commission’s recommendations shape rulings on federal employees’ workplace-discrimination claims, and its field offices deal with claims made by employees at private organizations, as well. But the ruling is also a reminder of how complicated—and unresolved—the post-Obergefell legal landscape is. The Supreme Court’s ruling in favor of same-sex marriage at the end of June has set the country up for two new waves of discrimination claims: those made by same-sex couples and LGBT workers, and those made by religious Americans who oppose same-sex marriage. The two may seem distinct or even opposed, but they’re actually intertwined: In certain cases, extending new rights to LBGT workers will necessarily lead to religious-freedom objections, and vice versa.
Right now, it’s impossible to know how these claims will fall out. It’s been less than a month since the ruling, and much of the legal theory on these issues is just that: theory. In Congress, there’s at least some effort to reconcile the two sides. As my colleague Russell Berman wrote on Friday, Democrats are pushing for legislation which would include prohibitions on discrimination in education, housing, and public accommodation, and Republicans may well sign on—if that legislation allows for religious exemptions. No matter what passes, the issues will remain tangled. These will be some of the questions courts and legislatures have to untangle in the wake of Obergefell.
Workplace and Hiring Discrimination
Many Americans may assume the Supreme Court’s decision in Obergefell will have a direct bearing on cases of discrimination on the basis of sexual orientation. That’s not quite right, said Andrew Koppelman, a law professor at Northwestern University. “The question of how you treat discrimination against gay people is just a different question [than] whether you allow them to marry,” he said. “Allowing them to marry is a question of what the state does. The other question is a question of how you regulate private actors and for what reason.”
A 2014 survey found that roughly 75 percent of Americans believed that federal law prohibits firing or refusing to hire someone on the basis of sexual orientation. Roughly 75 percent of Americans were wrong. Despite repeated attempts to pass the Employment Non-Discrimination Act and similar pieces of legislation in Congress, no federal protection has ever been put in place. As my colleague Joe Pinsker wrote in The Atlantic on Wednesday, the recent EEOC decision is an important first step toward creating these protections at the federal level, but lower courts could dispute the Commission’s interpretation of Title VII. The final interpretation of this statute would have to come from the Supreme Court, particularly if lower courts challenge the Commission’s decision.
“The question of how you treat discrimination against gay people is just a different question [than] whether you allow them to marry.”
Twenty-two states and the District of Columbia have laws covering sexual-orientation discrimination in areas like housing and employment, which means 28 states don’t have them. Last March, Utah passed a law prohibiting sexual-orientation-based discrimination, but with an important caveat: All religious organizations, including colleges, charities, and some miscellaneous organizations like the Boy Scouts are exempt.
Which leaves an open question: What about private employers who claim to have a religious objection to having gay employees? Douglas Laycock, a law professor at the University of Virginia, was skeptical that these kinds of claims could make it very far in court—or that they’d even come up that often. “When you say, I can’t have any gay person working in my [business], and it’s against my religion, judges are going to be skeptical that that’s a religious belief,” he said. “Non-discrimination laws serve a compelling interest.”
For now, the bigger issue is the ambiguity. In the absence of explicit federal protections—and in many places, state protections—someone who believed he or she was being discriminated against on the basis of sexual orientation would be totally dependent on the interpretation of the courts.
Where things get trickier, though, is with spousal benefits. To help explain why, a bit of background: Often, when people sue for religious exemptions to certain laws, they do it under the auspices of the Religious Freedom Restoration Act, or RFRA. This June, before the same-sex-marriage ruling, the ACLU ran an op-ed in The Washington Post declaring that it could no longer support the federal version of RFRA. The reason it cited was the Supreme Court’s decision in Hobby Lobby, in which the Court ruled that most private businesses could legitimately claim a religious objection to covering certain kinds of birth control in their employees’ health-insurance plans, something that’s now required by the Affordable Care act. “The RFRA wasn’t meant to force employees to pay a price for their employer’s faith,” the op-ed’s author, Louise Melling, wrote. “Efforts of this nature will likely only increase should the Supreme Court rule—as is expected—that same-sex couples have the freedom to marry.”
This may certainly be a symbolic political play on the part of the ACLU—just as political organizations on the right have drummed up fears about religious discrimination, so political organizations on the left have drummed up fears about LGBT discrimination. But now that the Supreme Court has set a precedent for private businesses to push for religious exemptions, it’s possible that business owners will make these claims with regards to laws like the Family and Medical Leave Act, a federal statute which guarantees employees the right to unpaid leave and continued health-insurance coverage in the case of certain family or medical emergencies.
“I do anticipate the kinds of claims,” said Douglas NeJaime, a law professor at UCLA. “The kind of claim that you saw in Hobby Lobby—you could see similar kinds of claims in the same-sex marriage context: The employer objects to providing benefits to the same-sex spouse, claiming that it makes the employer complicit in the sinful conduct it objects to.”
“Everyone makes a lot of the religious-liberty claim, but in some states, there isn’t even an obligation to serve gay people equally.”
Most of these claims would probably be brought under state versions of the Religious Freedom Restoration Act, rather than the federal version. This is because the federal version of RFRA only applies to federal laws, and as I wrote above, most anti-discrimination laws exist only at the state level.
But if you compare the states that have their own version of RFRA and those that have sexual-orientation discrimination laws, “it’s like the inverse map almost,” said NeJaime. “A lot of the states that don’t have sexual-orientation anti-discrimination laws also have RFRAs. Everyone makes a lot of the religious-liberty claim, but in some states, there isn’t even an obligation to serve gay people equally.”
Where things get more interesting, he said, is at the local level. Some cities and counties in states without sexual-orientation-discrimination protections have their own ordinances that prohibit such discrimination—this includes places like Little Rock, Arkansas, and Nashville, Tennessee. If that state also had a version of RFRA on the books—as, for example, Arkansas and Tennessee both do—an employer could plausibly claim that his or her religious beliefs were being violated by the requirement to provide benefits to employees in a same-sex marriage.
Providing Goods and Services for Same-Sex Functions
Photographers, florists, and bakers all have two things in common: They all get mad business from weddings, and they all have colleagues who have refused to provide services at a same-sex marriage ceremony because of religious objections. A number of cases over the past several years have asked whether these private business owners should be required by law to serve at these weddings, and some courts have definitively answered: Yes. The husband-and-wife duo who owned Sweet Cakes bakery in Oregon was fined $135,000 this summer for turning away a lesbian couple. The New Mexico Supreme Court found last spring that the couple who owned Elane Photography violated the state's public-accommodations law when they refused to photograph a commitment ceremony between two lesbian partners. Another baker case is currently pending appeal in Colorado.
The geographic pattern of these disputes has been interesting—even though people in the South are most strongly opposed to gay marriage and partnerships, many of these religious-freedom claims have taken place outside of the South. But that’s precisely because most Southern states don’t have sexual-orientation-anti-discrimination laws. As NeJaime put it, “The gay person who gets turned away in Oregon can go to his lawyer and do something. The gay person who get turned away in Alabama just goes to his friends and complains.”
“The gay person who get turned away in Alabama just goes to his friends and complains.”
There have been a few claims popping up elsewhere, outside of the context of weddings. In June, a Maryland DJ refused to work at the birthday party of a gay man, and in April, a Kentucky court upheld the religious-freedom claim of Hands on Originals, a T-shirt company that refused to print shirts for a gay-pride parade. NeJaime said that there’s an important distinction here, though: At least in the T-shirt case, the court ruled the claim was an issue of free speech, rather than discrimination. “It’s the difference between not providing service because the person’s gay and not doing something in particular because it’s particular speech," he said.
Even before the Supreme Court decision, many gay couples could already adopt children. Different states have different guidelines: Some allow non-biological parents to adopt only within the context of marriage. Others allow gay partners to adopt their partner’s child even if the couple isn’t married, which is called a second-parent adoption. “The big distinction after Obergefell is really about marital status rather than sexual orientation,” NeJaime said.
But there may be complications coming. In June, Michigan passed a law allowing religious adoption agencies to turn down prospective parents whose lifestyles don’t accord with their religious beliefs, including gay or unmarried couples. Florida considered a similar measure this spring, although that bill died in the senate in May. This was one of the religious-freedom concerns John Roberts specifically called out in his dissent to the Court’s decision in Obergefell.
The other consideration, NeJaime said, is healthcare-refusal laws: “In every state, there are laws that allow people to refuse to provide services in healthcare based on a religious or moral objection.” Most of these have to do with abortion, he said, but some now include provisions about assisted reproductive technologies, like artificial insemination, which could potentially have a big effect on lesbian couples who are trying to get pregnant.
Issuing Same-Sex Marriage Licenses and Performing Wedding Ceremonies
As the possibility of legal, nationwide gay marriage loomed nearer this summer, many politicians voiced their concern for the religious freedom of clerks, judges, and clergy members who didn’t want to issue same-sex marriage licenses or perform ceremonies. North Carolina, for example, passed a law in advance of the ruling stating that any judge who doesn’t want to perform same-sex-marriage ceremonies can choose not to perform marriages of any kind for a period of six months.
Now that the ruling has passed, several cases like this have already come up. For example, Kim Davis, the clerk of Rowan County, Kentucky, is being sued for refusing to issue marriage licenses to gay couples. And Joyce Lewis-Kugle, the clerk of Rusk County, Texas, resigned a few weeks after the Supreme Court’s decision because, she said, “the laws I swore to protect have changed.” Any clerk or judge who makes this kind of claim may face litigation, but they’ll also have ample resources to defend themselves—as Texas Attorney General Ken Paxton announced after the ruling, “numerous lawyers stand ready to assist clerks defending their religious beliefs.”
A county clerk in Texas resigned because, she said, “the laws I swore to protect have changed.”
The legal facts are a bit different for clergy, though. After the ruling, several states, including Texas and Tennessee, put together “pastor protection acts,” allegedly to ensure that pastors wouldn’t have to perform gay marriages if those unions violate their religious beliefs.
“The pastor protection acts are purely symbolic politics for the following reason: The government cannot discriminate ... when recognizing marriage, but certainly my rabbi can,” said Mark Graber, a law professor at the University of Maryland. “My rabbi had that right before Obergefell, and my rabbi has that right afterwards. My rabbi, by the First Amendment, only has to perform religious marriages that my rabbi believes are sanctified by Jewish law.”
Sexual-Conduct Policies at Religious Universities
One final arena to keep an eye on is that of religious colleges and universities. Some leaders at Christian schools, including many that identify as evangelical, fear they may be stripped of their tax-exempt status, lose their access to federal funding, or face other problems because of their policies on homosexuality. There haven’t been many instances of this in action yet—the most prominent example is that of Gordon College, which faced the possible loss of its accreditation from the New England Association of Schools and Colleges in 2014 because of its ban on “homosexual practice.” After nearly a year of internal review, the school announced it would keep its sexual-conduct guidelines … and nothing happened. But other issues, like whether these schools must provide equal housing accommodations to straight and gay married couples, may arise.