Decisions by the U.S. Supreme Court usually make headlines, especially when the court is bitterly divided. Few things cause as much chaos in American life than 5-4 from on high.
Meanwhile, 9-0 decisions — which are actually quite common — often receive little attention. They are, however, extremely important because they display a unity on the high court that should, repeat “should,” be hard to shatter.
I bring this up, of course, because of the 6-3 SCOTUS ruling redefining the word “sex” in Title VII of the Civil Rights Act of 1964. In the wake of that historic victory for LGBTQ activists, reporters who cover legal issues, especially church-state conflicts, have to start thinking: Where is this story going now?
That’s precisely what “Crossroads” host Todd Wilken and I talked about in this week’s podcast (click here to tune that in). Journalists can expect clashes sooner, rather than later, when it comes to LGBTQ Americans presenting evidence that they were fired, or were not given a fair chance to be hired, at businesses operated by traditional Christians, Jews, Muslims, etc.
One could start a timer, methinks, to measure how long it will be until the first story of this kind breaks involving Hobby Lobby or Chick-fil-A. The more important story, however, will be how this new legislation passed by the Supreme Court will affect traditional religious believers across the nation who own and operate small businesses. Journalists looking for stories on the cultural left will want to visit businesses led by religious believers who stress that they have had no problems with their employees.
However, let’s go back to that other religious question: What is the next shoe that will drop?
With that in mind, reporters may want to ponder the implications of a 9-0 church-state decision at the Supreme Court in 2012 — which isn’t that long ago, in legal terms. I am referring to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That’s the case that strengthened the concept of a “ministerial exception” that gives doctrinally defined religious institutions great freedom in the hiring and firing of employees. The bottom line: The state isn’t supposed to become entangled in personnel decisions that involve doctrine.
Why does that matter right now? As I argued this week (“ 'But Gorsuch...' crashes at Supreme Court: Now watch for 'Utah' references in news reports“), debates about Title VII religious exemptions are looming in the near future. At that point, all roads lead to the 9-0 ruling on Hosanna-Tabor.
The question legal minds are asking: Are we about to see a drama with two acts? Stage one: This new SCOTUS decision — written by Justice Neil Gorsuch, Donald Trump’s first pick for the court — offering new protections for LGBTQ Americans. Stage two: Future decisions reaffirming First Amendment protections for religious liberty (at least in doctrinally defined institutions, such as religious schools and nonprofits).
Here’s the end of my “On Religion” column for this past week:
… Religious leaders can hope this latest ruling is the court's first move toward some form of middle ground, argued David French, a Harvard Law School graduate who writes for The Dispatch. …
"Unless I'm reading the tea leaves wrong (and I could be!), SCOTUS will likely expand the reach of the ministerial exemption -- allowing religious institutions to functionally define which employees are exempt from nondiscrimination law," French wrote on Twitter.
"A year from now, the jurisprudence could look largely like this -- secular employers are fully subject to each element of Title VII while religious employers enjoy a broad ministerial exception and a more robust free exercise clause."
That drew this reply from Douglas Laycock of the University of Virginia Law School, who has defended both same-sex marriage and the religious-liberty rights of traditional faith groups.
By the way, journalists who interview Laycock may want to note that he was the counsel of record for the Hosanna-Tabor Lutheran School during those SCOTUS arguments.
That could happen, "but there are no sure things until they do it," said Laycock. Again, everything is up to justices sitting in the middle of an evolving Supreme Court.
"A legislature can negotiate compromises and put gay rights and religious liberty in the same bill," he said. "It is much harder for the court to do that. They have to decide the issues as they are presented in a case, usually one issue at a time."
When might this potential compromise emerge at the high court?
Very soon. A Baptist Press feature noted:
Though conservatives were surprised and disappointed, some have turned their focus to other pending Supreme Court rulings on religious liberty this term, where they still hope to carve out significant wins.
Chief among them are two pending cases -- Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel -- that involve a "ministerial exemption" to civil rights protections such as the one in Monday's ruling, Title VII of the 1964 Civil Right Act. …
In those twin cases, two Catholic school teachers whose contracts were not renewed sued their schools, claiming discrimination. One sued on the basis of disability, the other on the basis of age. The schools have urged the high court to throw out the cases, arguing that the teachers qualify as ministers.
In his commentary for The Dispatch — “A Conservative Legal Chernobyl?” — French underlined those cases, as well.
Here is a handy French list for reporters looking for the “next shoe” in this huge story:
… There are a series of cases already on the court’s docket that are likely (based on judicial philosophy and court trends) to do the following:
1. Enhance the scope of the ministerial exception to federal and state nondiscrimination laws, thus increasing rather dramatically the number of employees at colleges, schools, and other religious institutions who are left outside the scope of Title VII.
2. Continue to chip away at anti-Catholic Blaine Amendments that now operate to permit state and local governments to discriminate against religious institutions in the distribution of state funds. Obliterating Blaine Amendments would place religious institutions on equal footing with secular organizations when seeking the benefit of neutral government programs.
3. Finally liberate the Little Sisters of the Poor (and other religious organizations) from participating in any way in the Obamacare contraception mandate.
4. Protect religious nonprofits such as Catholic foster care and adoption agencies from state and local nondiscrimination laws that would require them to violate the teachings of the church as a condition of operation.
Thus, a compromise that attempts to find a middle ground between the doctrines of the Sexual Revolution and the First Amendment, with it’s rock-ribbed defense of the rights of religious believers and institutions.
Will that compromise come to pass? And what happens to local- and national-level businesses owned by traditional believers?
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