DEAL, NO DEAL: BOSTOCK, OUR LADY OF GUADALUPE, AND THE FATE OF RELIGIOUS HIRING RIGHTS AT THE U.S. SUPREME COURT.

• Author: Tracey, Timothy J.

INTRODUCTION

In a year marked by the extraordinary--an impeachment, a global pandemic, a national movement for racial justice, a reeling U.S. economy, a rancorous presidential election, the departure of Britain from the European Union, wildfires engulfing the West Coast, and, of all things, murder hornets--it was unlikely the United States Supreme Court would escape unscathed. (1) And, indeed, for the first time since the 1918 Spanish flu pandemic, the Court closed its doors to the public and shelved oral argument. "In keeping with public health precautions recommended in response to COVID-19," the Court said it was "postponing the oral arguments currently scheduled for the March session" and "w[ould] remain closed to the public until further notice." (2) With the COVID-19 pandemic dragging on, it took the unprecedented step of hearing the ten deferred arguments by telephone and live-streaming the audio over the internet for the public. (3)

The delayed argument calendar led to the Court releasing eight merits opinions in July--something that had not occurred since Warren Burger helmed the Court in the 1980s. (4) Ultimately, when the Court recessed for the summer on July 9, 2020, it had handed down only fifty-three signed opinions, (5) the lowest number since the Civil War. (6)

The Supreme Court took religious employers along for the ride. Over the term, it oscillated between the two sides of the cultural conflict over LGBTQ rights and religious freedom. On the one side, the Court protected the rights of gay, lesbian, and transgender Americans in Bostock v. Clayton County, (7) interpreting Title VII of the Civil Rights Act of 1964 (8) to prohibit job discrimination on the basis of sexual orientation and gender identity. And, on the other, it showed continued concern for accommodating religious exercise by expanding the scope of the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru, (9) and by upholding the Trump administration's religious and moral exemptions from contraceptive coverage requirements in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania. (10) More pointedly, in Bostock, the Court threw a pall of doubt over religious employers' ability to hire and fire consistent with their beliefs. Yet it pushed back the clouds of uncertainty just a smidgen in Our Lady of Guadalupe by making clear that anti-discrimination laws cannot limit religious schools' ability to choose like-minded teachers of religious subjects.

The accepted wisdom is that the Court's schizophrenic rulings are part of a settlement rather than the product of addled minds. According to this line of argument, because the other branches of the federal government--the President and the United States Congress--have been unable or unwilling to broker a compromise in the clash between ever expanding nondiscrimination protections for LGBTQ Americans and the rights of people of faith to live according to that faith, the Court stepped in to force a compromise. A laundry list of scholars have peddled this explanation: Andrew Koppelman, Michael McConnell, Akhil Amar, Jeffrey Rosen, Mark Movsesian, David French, and others. (11)

And perhaps they're right. But, to quote Baymax, "I have some concerns." (12) The biggest being a lack of a track record. One instance of the Court supposedly balancing out a ruling in favor of LGBTQ rights with a ruling in favor of religious rights is not much to go on. Such sparse data at the very least counsels caution. Aristotle's warning is well taken: "For one swallow does not make a summer; nor does one day." (13) A single occurrence of something is just that; it doesn't indicate a trend. Patternicity, (14) illusory correlations, (15) apophenia, (16) conditioned seeing, (17) whatever we call it, the fundamental fact is that "humans tend to see patterns when, in fact, the results are completely random." (18)

Maybe the decisions in Bostock and Our Lady of Guadalupe do indeed mark the start of an orchestrated settlement of the culture war, but they could just as easily be the product of happenstance. Before we get on our Harold Finch, break out the red yarn, and start stringing together Supreme Court cases on our metaphorical bulletin boards, alternative explanations should be considered. (19)

Moreover, the Court's balancing of LGBTQ and religious rights can hardly be described as even. Bostock expanded Title VII's ban on "sex" discrimination to encompass sexual orientation and gender identity for every employer in the nation that "has fifteen or more employees," whether that employer is religious, nonreligious, or otherwise. (20) The Equal Employment Opportunity Commission annually receives between 50,000 to 73,000 discrimination charges under Title VII. (21) For religious employers then, Bostock raises the specter of significant legal liability for practices that until now went unquestioned.

Our Lady of Guadalupe counteracted Bostock but only barely. It exempted private religious schools from nondiscrimination laws, including Title VII, but exclusively in the context of when they are managing teachers providing religious instruction. (22) The vast majority of religious employers remain uncertain as to their ability to make job decisions consistent with their faith. (23) Perhaps Our Lady of Guadalupe provides reason for these religious employers to hope for robust religious accommodations moving forward, but, for now, the case far from balances the sweeping change wrought by Bostock.

This article explains the give and take of the Supreme Court's decisions in Bostock and Our Lady of Guadalupe and their likely impact on religious employers. It considers the conventional wisdom that the Court's decisions--bouncing back and forth across the ideological aisle--signal a compromise in the culture war. The article concludes that the Court's decisions may provide some basis for optimism for finding a middle ground in the clash between expanded protections for LGBTQ persons and religious liberty, but they provide far more reasons for skepticism.

1. GIVE AND TAKE

   One of the oddities of 1980s television was the ubiquity of ads for Broadway musicals. Many included breathless testimonials from theater buffs, like the New York woman proclaiming, "Cyd Charisse is fabulous! Wonderful! I'd like to see the show two more times! I loved it so much!" (24) But perhaps best remembered is the fan declaring, "I laughed, I cried! It was better than Cats!" (25)

   Religious employers could say the same of the Supreme Court's recent October 2019 term. It ebbed and flowed with emotion, from the mix of relief and despair that was Bostock to the thrill of Our Lady of Guadalupe. And, ultimately, we can all agree, it was better than Cats.

   The Court delivered Bostock in mid-June, (26) holding by a 6-3 margin that under Title VII (27) employment "discrimination based on homosexuality or transgender status necessarily entails [unlawful] discrimination based on sex." (28) The Court's ruling cleared LGBTQ persons to earn a livelihood without fear of being fired, shunned, or harassed because of their sexual orientation or perceived gender.

   The LGBTQ community fought for these protections in the United States Congress in one form or another since May 1974, when Democratic Representatives Bella Abzug and Ed Koch from New York introduced the Equality Act of 1974. (29) For the next forty-six years, Democrats beat their collective heads against the wall, introducing bill after bill to extend workplace protections to gay, lesbian, and transgender persons only to be thwarted by Republicans. Far too often these Democratic-led initiatives made almost no concession to religious liberty. Most recently, on February 25, 2021, a group of largely Democratic Representatives in the House passed the Equality Act (yes, it has the same name as the 1974 bill; creativity is apparently not the politician's strong suit). The bill was received by the Senate and promptly referred to the Senate Committee on the Judiciary. (30) GovTrack.us reports that the odds of passage are low, only about twenty percent. (31) Passage seems unlikely since "[s]o far no Senate Republicans--who hold 50 of the 100 seats--have said they will vote for the bill." (32)

   Why is that? For starters, the bill flatly "prohibit[s] appeals to [the Religious Freedom Restoration Act] when a religious person or organization is charged with violating a nondiscrimination rule." (33) That means when LGBTQ rights come up against religious freedom, "an LGBT person's claim wins by default--therefore not ensuring equality but elevating their rights over those of religious Americans." (34) University of virginia law professor Doug Laycock explained, "This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side." (35) Thus, the Equality Act was not a bid for compromise but a perpetuation of the winner-take-all strategy that has so dominated the religious liberty culture war.

   Republicans have fared no better. Rather than seeking middle ground, Republicans seem "content to simply block Democratic legislation without passing any additional affirmative protections for religious freedom." (36) When Republican Representative Chris Stewart from Utah introduced a piece of compromise legislation, called the "Fairness for All Act" (or "FFA"), in late-2019, (37) it drew widespread opposition from his fellow conservatives. "[I]t would enshrine radical gender ideology in federal law and decimate the religious freedom of institutions and individuals alike," claimed The Heritage Foundation. (38) "[The] FFA is anything but fair," declared the Family Research Council. "It sends the message that anyone who holds to a traditional view of marriage and lives their lives and operates their business according to that view is a bigot and their actions are unacceptable and discriminatory." (39) The Ethics &amp...