Many have contacted our office concerning the Supreme Court decision in Bostock v. Clayton County. This case has caused concern for many who believe the Supreme Court legislated from the bench in the same way as in Roe v. Wade. Before providing post-decision analysis, this article will walk through the facts, legal question, and opinions by the Supreme Court, which is now part of official case law in our country.
What facts were presented to the Court?
Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly after, Bostock received criticism for his participation in the league and his sexual orientation and identity generally. During a meeting where Bostock's supervisor was present, at least one individual openly made disparaging remarks about Bostock's sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly after, Clayton County terminated Bostock allegedly for "conduct unbecoming of its employees."
What was the legal question presented to the Supreme Court?
Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of . . . sex,” encompass discrimination based on an individual’s sexual orientation?
How did the Supreme Court answer the legal question?
In a 6-3 majority, the Supreme Court ruled that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch authored the majority opinion. Before the Supreme Court ruling, Title VII prohibited employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” In 1964, sex was understood to refer to one’s biological gender at birth. An employer could not discriminate against an individual because he or she was biologically male or female.
However, looking to the ordinary, contemporary public meaning of each word and phrase comprising the provision, the Court interpreted that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex (albeit self-identified)—the very practice Title VII prohibits in all manifestations. Although it acknowledged that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, the Court gave no weight to legislative history because the language of the statute unambiguously prohibits the discriminatory practice.
Justice Samuel Alito authored a dissenting opinion, in which Justice Clarence Thomas joined, criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation” but actually revising Title VII to “better reflect the current values of society." In essence, Justice Alito and Justice Thomas stated that the Supreme Court updated or created new legislation to reflect current cultural thinking instead of forcing the legislature to revise or pass new legislation addressing the issue. Justice Brett Kavanaugh also authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).
What is the practical impact for churches and ministries?
Many church and ministry leaders are concerned this ruling will significantly impact their employment practices. At this time, religious, faith-based, and ecclesiastical employers are exempt from Title VII. This exemption means that churches, Christian schools, Christian daycares, etc., will not be required to comply with Title VII. This has historically been the case as well. So, a quick answer is that your church and ministry will not be impacted by this decision by the Supreme Court.
Who will be impacted?
Employers who are not faith-based, religious, or ecclesiastical and who employ fifteen or more employees fall under Title VII. These employers will need to clearly document reasons for any termination or adverse employment actions against an employee in a protected category. This documentation needs to clearly demonstrate that the adverse actions were for nondiscriminatory reasons.
As Christians, we understand the morality that once defined our legal system is no longer being upheld. The Truth of God's Word is no longer the basis for our court's decisions, including the Supreme Court. For now, this decision does not impact churches or Christian ministries in any way. However, we know that the push from the Left will continue to intensify on this topic in the coming days, months, and years. We must remember the passage from Scripture: "And now, Lord, behold their threatenings: and grant unto thy servants, that with all boldness they may speak thy word” (Acts 4:29). We must continue to be bold and declare the Word of God like never before as the battle for souls in our country intensifies.
Is there anything we need to be doing to protect our church and ministry?
At the National Center for Life and Liberty, we will continue to monitor this issue, but we also want to work with your church to ensure that your bylaws are current, your employee or student handbook is updated, and your employment documents are in order. Please contact our office today to conduct a review to ensure you are protected in our increasingly hostile world!