The United States Supreme Court has recently heard three similar cases grouped together (Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC), all pertaining to the interpretation of what “sex discrimination” in the workplace means under Title VII of the 1964 Civil Rights Act. In these cases, the USCCB filed an amicus brief on the side of the employers—against the LGBT plaintiffs. In the first two cases, two men were fired for being gay; in the third, a transgender employee was fired. The USCCB is taking a stand in the public square to argue in favor of employers’ rights to discriminate against LGBT employees. This decision merits further theo-ethical reflection on a number of key issues.
- The term “sex” as used in Title VII does not mean “sexual orientation.” Sex refers to being male or female, and the law says that female employees should not be discriminated against in the workplace on the basis of their female sex.
- “Sexual orientation discrimination” is not “sex discrimination.” Employers should be able to discriminate on the basis of sexual orientation, even if not on the basis of sex.
- “Construing Title VII’s ban on “sex discrimination” to include “sexual orientation discrimination” would create conflicts with many religious believers and their institutions in the workplace. For religious groups like the Catholic Church who have teachings forbidding same sex acts and which recognize marriage as between a man and a woman, an expansion of Title VII would be problematic.
- A workplace ban on “sexual orientation discrimination” would create an unnecessary burden on religious liberty and would have a ripple effect on other contexts (for example, current discriminatory practices in housing and mental health services provided by religious groups). For example, they say that faith-based universities may have to close married student housing and that faith-based counseling services may have to close their doors (19-22), just as adoption placement programs have closed rather than be forced to place children with same sex couples.
- A Supreme Court ruling that “sex discrimination” includes “sexual orientation discrimination” would have other negative consequences for religious groups related to religious liberty, speech, association, choice of livelihood, and statutory protections for religious organizations.
In the oral arguments, Pamela Karlan, Co-Director Supreme Court Litigation Clinic, Stanford Law School, argued that the justices should focus on the text of Title VII instead of the original intent (see SCOTUSblog reporter Amy Howe’s analysis). The USCCB lawyers argue that “sex” as intended by Title VII refers to male and female. Perhaps unsurprisingly absent here is any recognition of what Catholic scholars would describe as an intersectional lens for reflecting on the impact of patriarchy on sexuality. Title VII did not end sexism in the workplace but it did help to name it and begin to correct it by taking seriously the disadvantage of women’s experiences. But sexuality is a human experience, not just a cisgender heterosexual experience. Is it time to evolve our understanding of Title VII protections? The Supreme Court is now asking whether someone fired because of their “sexual orientation” was fired because of “sex.” If a gay man was fired because his employer did not believe he was correctly performing his manhood, is this not because of “sex”? In a patriarchal mindset, women and the LGBT community are (together) disadvantaged because the structures in place revolve around hetero-male normativity and subjectivity and descriptions of everyone else as ‘other.’ Leveling the playing field in the workplace today must mean that everyone gets an equal chance. If sexual orientation is a locus for workplace discrimination on the basis of sex, then it reasonably falls under Title VII. Women and the LGBT community are allies in a fight against sexist workplace dynamics that persist in US culture.
The USCCB wants liberty to:
- refuse to hire LGBT employees at Catholic workplaces
- retain the authority to fire LGBT employees at Catholic workplaces
- continue to speak out against same-sex marriage without being accused of harassment
- limit or refuse services to LGBT families (e.g., adoption, healthcare, housing, marriage/family therapy, maybe Eucharist).
Documents like this amicus brief do not craft new theological arguments; they restate old ones. But those teachings are being applied here to employment law in a novel way. The bishops’ legal team argue that Catholic employers should be able to fire anyone who does not “agree and act in accordance with its mission.” This argument is applied here to homosexual Catholics in same-sex marriages. But if Catholic employers were really to apply a standard of firing any employee who does not “agree and act in accordance with its mission,” many firings could ensue, and the workplace collapse. I have previously written about how easy it is to be fired from a Catholic institution. The amicus brief is clear, the construal of “mission” is more about targeting gay employees than following Jesus:
It would bring harm to a church and to the integrity of its mission and message were it forced to hire and retain employees who, by speech or conduct, do not espouse or have not integrated that mission and message into their own lives. It would also undercut the church’s right to decide for itself what its mission and message are. (12-13).
In previous teachings, authoritative documents of the Catholic tradition have taken a similar stand, arguing that discriminating against LGBT persons is not unjust in itself. This argument is rooted in a particular interpretation of justice and the natural law. If we define justice as rendering to each his or her due (Aquinas, II.IIae, Q 58, 11), by their understanding of what is due per their interpretation of the natural law, assuming a heteronormative sexual binary, the bishops would say that gay couples do not have a right to same sex relationships. Increasingly, this argument is not very persuasive for Catholics who witness the loving relationships of gay and lesbian couples in their families, their communities, and their LGBT colleagues who are qualified at their jobs, further the common good, and render what is due in the workplace.
I worry too about how the bishops’ public stand risks undermining the employment security of gay Catholics. Let me say clearly: The USCCB does not speak for me in this brief. Employment discrimination on the basis of sexual orientation is contrary to my understanding of both the natural law and the gospel. No matter what the Supreme Court decision on this matter will be, in the short term or long term, LGBT Catholics are already members of our faith community and should be treated with the respect they deserve as human beings created in the image and likeness of God. Our workplaces, including Catholic institutions and church spaces, are enriched by LGBT employees.
- To the lesbian youth minister, I care about you and your family.
- To the gay teacher, please don’t quit your job. I know it is hard, and this climate seems to be getting worse before it gets better, but I care about you and your students’ wellbeing.
- To the children of gay parents, I’m sorry that that bishops are saying hurtful things about your family. You know what love looks like. Tell us more about that so more people, including the Bishops can learn from you.
- To my colleagues, co-workers, and students who are gay, lesbian, bisexual, transgender, queer, and questioning, thank you for your unique contributions to our campus community and to our workplace. I am fortunate to work with you and know that my workplace would be diminished without your presence.
No matter what the Supreme Court of the United States decides, this issue will likely continue to divide Catholics in the US. Some argue that this decision is best left for Congress to decide, while others think that as long as gay or transgender employees are being fired for being gay or transgender, the Civil Rights Act is an appropriate place to seek legal protections. But broader questions for people of faith remain: How are we called to better understand and celebrate the reality of sexual diversity in God’s creation? How can our faith communities better accompany LGBT members as they discern the call of the Spirit in their own lives and practice their faith according to their consciences? In Gaudete et Exsultate (2018), Pope Francis condemns a new Pelagianism and encourages readers to discern their mission, a personal call to holiness for each of us (23-24). Rooted in love, “mission” is a personal call to follow Jesus in the complexity and particularity of our individual life experiences—straight or LGBT.
 Adam Liptak and Jeremy W. Peters, “Supreme Court Considers Whether Civil Rights Act Protects LGBT Workers,” New York Times (October 8, 2019), available online: https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html.
 Anthony R. Picarello, Jr., counsel of record for United States Conference of Catholic Bishops, “Brief Amici Curiae of United States Conference of Catholic Bishops and Other Religious Organizations in Support of Employers,” Nos 17-1618, 17-1623 Supreme Court of the United States, available online: http://www.usccb.org/about/general-counsel/amicus-briefs/upload/Bostock-8-23-19.pdf
 Amy Howe, “Argument Analysis: Justices Divided on Federal Protections for LGBT Employees (Updated)”, Supreme Court of the United States blog (SCOTUSblog), (October 8, 2019), available online: https://www.scotusblog.com/2019/10/argument-analysis-justices-divided-on-federal-protections-for-lgbt-employees/
 Congregation for the Doctrine of the Faith, “Letter on the Pastoral Care of Homosexual Persons,” (October 1, 1986), available online: http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19861001_homosexual-persons_en.html
 Emily Reimer-Barry, “How to Be Fired From Your Job at a Catholic Institution: It’s Easier Than You Think!” Catholic Moral Theology blog (June 18, 2013), available online: https://catholicmoraltheology.com/how-to-be-fired-from-your-job-at-a-catholic-institution-it-is-easier-than-you-think/
 Pope Francis, “Rejoice and Be Glad! On the Call to Holiness in Today’s World,” (March 19, 2018), available online: http://w2.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20180319_gaudete-et-exsultate.html