On June 15th, 2020, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects LGBT+ workers on the basis of sex discrimination. The majority decision held that if the only distinguishing factor between accepting someone's employment status is sex, and his/her behaviors were the same as someone from the opposite sex, such as engaging in a relationship, that such employment practices are discriminatory per Title VII.
In an op-ed from the ACLU, Rose Saxe both praises the highest court's decision and raises concerns about future discrimination under the guise of the freedom to exercise religion. Dissenting Justices Alito and Thomas held that "sex discrimination" refers solely to whether the alleged discriminee is biologically male or female rather than sex-adjacent criteria like orientation, and also expressed concern that the ruling would impede upon individuals' right to freely exercise religion. Saxe affirms toward the end of the op-ed that "[i]t is a tremendous victory for the court to say that the plain words of the law protect LGBTQ people, just like everyone else. But that victory is fragile and will be eroded if the court furthers the agenda of the Trump administration by giving anyone who objects on religious grounds a free pass to violate the law."
This last sentence should arouse suspicion even in legal laymen, as the free exercise of religion is part of the very first amendment to the Constitution—a right we are told by the Founders is guaranteed by the Creator, not by the government. Saxe here also calls into question the sincerity of religious beliefs that would call for discrimination against LGBT+ people. While it was decided in Reynolds v. United States that the government could prohibit religious practices but not beliefs or opinions, the case hardly set a clear precedent to follow. It effectively granted the government carte blanche to prohibit any religious practice. The judge opined that sacrifice was not to be "seriously contended" as protected behavior under the First Amendment, but why not? It may seem obvious to us that murder is wrong, but surely to some people in the world, sacrifice is fervently believed to be the only way into the afterlife. The First Amendment proclaims a freedom to exercise religion, not only to maintain faith in such practices. Where, then, is the line drawn?
Arguably at where others' rights begin. According to the Declaration of Independence, technically not codified into American law, but integral to the nation's framework, "all men... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Liberty and the pursuit of happiness are not so easily defined, but the right to life is clear. Therefore, it stands to reason that murder would not be protected under the free exercise clause. But what about freedom from being fired for sexual orientation or gender identity? Who's to say that one's right to such a freedom trumps the right to freely exercise religion? The question is, which is supreme: the First Amendment or the Civil Rights Act of 1964?
The supremacy clause of the Constitution states that constitutional law, federal laws, and treaties all supersede state law when the two come into conflict. It does not, however, make a distinction between the three types of federal laws, which is problematic given the Civil Rights Act of 1964 is such a law. Fortunately, there is precedent to work off of in Marbury v. Madison. The judge here asserted that "a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." We once again find ourselves at a difficult juncture: given the Civil Rights Act's ability to violate constitutional law, should it be void? Or rather, should it be clarified that the limits of the act's powers to prevent discrimination end where free exercise of religion and freedom of speech begin?
Civil rights legislation was key in allowing minorities and women full access to the American way of life; it would be foolish to strike it out on grounds of a possible interpretation that could infringe upon religious rights. The answer is clearly the latter. Saxe is correct then in worrying that the victory in Bostock v. Clayton County is fragile, as it violates the free exercise clause and should be overturned. When rights come into conflict, legal precedent makes it clear: the Constitution comes first.
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