It was an explanation downright talmudic in its formulation.
The Civil Rights Act of 1964 protects LGBT individuals from discrimination in hiring and firing, the U.S. Supreme Court ruled in a 6-3 decision this month. According to the majority opinion penned by Justice Neil Gorsuch, this type of discrimination falls under Title VII’s prohibition of discrimination in employment on the basis of sex.
His reasoning was that the expectation of who someone should be attracted to or what gender they should present themselves as is rooted in the person’s sex. “An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” wrote Gorsuch. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” By that logic, there is no need to reinvent the wheel to bring LGBT people under federal protection — it is a viable reading of the existing protection itself, the court ruled.
Howie Slugh and Seth Marnin are two lawyers with expertise in this case matter who had opposing reactions to the court’s ruling. Both agreed, however, that the ruling does not necessarily protect all LGBT individuals from employment discrimination at day schools, synagogues and other religious spaces that operate with more conservative “don’t ask, don’t tell” policies.
The ministerial exception
Slugh is a constitutional law expert and serves as general counsel for the conservative-leaning Jewish Coalition for Religion Liberty. The Washington resident likened Gorsuch’s “hyperliteral” reading of Title VII to something children’s book character Amelia Bedelia would do. “If you read the phrase the way it was written in 1964, it doesn’t apply to sexual orientation,” he said.
If a prospective employer could have job candidates check off a box indicating whether they are homosexual or transgender, and make the decision not to hire someone without ever knowing the sex of the person involved, “I don’t think you can say they are making the decision based on sex,” he argued.
But the high court’s decision was met with praise from LGBT advocates. “I was both stunned and thrilled,” said Seth Marnin, director of training and education for the Office of Equal Opportunity and Affirmative Action at Columbia University. Marnin is also board chair of Keshet, a national Jewish organization engaged in LGBT advocacy and leadership training. Keshet also aims to help Jewish institutions — from synagogues and summer camps to social-service organizations and large communal agencies — welcome and incorporate LGBTQ Jews in all facets of Jewish life.
Marnin is a transgender man and lives in New York. With the present composition of the Supreme Court, he was not optimistic about how the case would play out. “I was delighted that it was a resounding win at a 6-3 decision,” he said.
Yet the decision does not change anything for LGBT employment rights in religious institutions, Slugh and Marnin explained.
If private institutions take any federal funds, they have to follow federal law, thanks to the Commerce Clause in the Constitution. But the “ministerial exception” is a legal doctrine in the United States that frees religious institutions from government regulation when it comes to employment of their “ministers.” Catholic churches can’t be prosecuted for sex discrimination for refusing to hire female priests, for instance, and Orthodox Jewish schools can’t be forced to hire female clergy even if the women are ordained by Orthodox-affiliated bodies.
Exactly which types of employees should qualify as a ministers, and thus how broadly the exception should apply, is the subject of other cases currently before the Supreme Court.
“The ministerial exception permits discrimination in hiring clergy and people engaged in ‘core religious functions,’ and it can get murky in real life,” said Marnin. In one of the cases before the Supreme Court, a teacher who was allegedly fired under cover of ministerial
exception is arguing that a court needs to look at the employee’s function, title, training and actions. Marnin is skeptical that the court will find in the teacher’s favor; then again, the court already surprised him once.
“If it’s the gym teacher who’s gay versus the teacher who’s teaching Tanach, that’s how it’s going to break down [for Jewish schools],” he said. “If they’re hiring for a religious-related position, it’s not different than for a yeshiva that doesn’t want to hire women to teach boys.”
“If it is a position that doesn’t involve teaching religion, like a music teacher, they’re not teaching religion per se; but if there is a connection to a religious service, the case may come out differently,” he added.
Title VII also allows religious institutions to give hiring preferences to members of their own faith, and a religious institution’s hiring materials can make it clear that “being a role model and living the faith” is part of the job description for any position, said Slugh.
But both lawyers agreed that to be fair, that would require enforcement of religious practices across the board. “If a school wanted to say that the expectation in the Judaic faculty is that they observe all the laws, and the dean of the school walks by eating a cheeseburger, they should be able to fire them,” said Marnin.
“The court is forcing you to be equal in how you enforce religious behavior,” agreed Slugh.
“We are all created in God’s image, and our failure to see that, particularly among people in our own community, is a shanda,” said Marnin. There are LGBT Jews in every denomination of Judaism, and “aside from the fact that I think discrimination is wrong, I think it is particularly important for youth to have role models,” he continued.
“I think it is important for them to see people having happy healthy successful lives. Having LGBT role models doesn’t create LGBT kids, [but] when we start talking about LGBT kids and suicide, it’s because of the messages that they get and the alienation that they experience.”