The United States Supreme Court was debating the meaning of the word sex on Tuesday when Chief Justice John Roberts brought up religion. He called it “that other concern”—religious liberty.
Roberts asked: How can the government protect the rights of gay, lesbian, bisexual, and transgender employees in the workplace and the rights of religious groups to employ people who agree on issues of sexuality, sexual orientation, and gender identity?
Three current cases before the court all raise this question—but might not answer it. On Tuesday, the Supreme Court heard arguments in Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and Harris Funeral Homes v. the Equal Employment Opportunity Commission.
In all three, the court is considering whether the 1964 Civil Rights Act protects LGBT people from getting fired. Title VII of the law says employers cannot dismiss people “because of sex.” The court has to decide whether sex includes sexual orientation and gender identity.
Bostock was a child welfare services coordinator for the Clayton County, Georgia, juvenile court system, who said he was fired for his sexual orientation after his employer learned he joined a gay men’s softball league. Zarda—who died before his case got to the Supreme Court—was a skydiving instructor who lost his job after he told a female student he was gay. Stephens was a funeral director for R.G. and G.R. Harris Funeral Homes and got fired after coming out as a transgender woman. Stephens’ employer said she was in violation of the dress code, which requires men to wear suits.
Bostock, Zarda, and Stephens’ lawyers all argue they should have been protected by Title VII.
Bostock’s lawyer made the case that discriminating against people in same-sex relationships is a form of discrimination based on sex. She asked the judges to imagine two employees who both got married the same weekend, each to man named Bill. “When you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event,” the lawyer said, “that’s discrimination because of sex.”
According to Stephens’ lawyer, “a dress code that distinguishes on the basis of sex obviously is because of sex.”
The other side says that’s obviously not what the law meant when Congress passed it in 1964. They argue no one was thinking about sexual orientation or gender identity at the time, so the statute should not be interpreted to protect LGBT people from discrimination.
John Bursch, an Alliance Defending Freedom attorney who represents the Christian owner of the funeral home that fired Stephens, appealed to “those types of things everyone would have understood Title VII” to mean “at the time of its enactment.”
A number of major evangelical groups, including the National Association of Evangelicals, the Billy Graham Evangelistic Association, and the Council for Christian Colleges and Universities (CCCU), have also added that expanding the definition of “sex” to protect LGBT rights could interfere with the employment practices of churches and Christian institutions.
“It should not be surprising that religious universities seek to hire employees who support their religious missions,” the CCCU’s lawyers wrote. “Refashioning the statute to equate ‘sex’ with sexual orientation and gender identity would create new conflicts for many religious universities that hire employees whose beliefs and practices will advance their religious mission.”
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Source: Christianity Today