Today, the U.S. Supreme Court ruled 6-3 to broaden the interpretation of “sex” in Title VII of the Civil Rights Act (which prevents discrimination in employment) to include “sexual orientation” and “gender identity.” Justice Gorsuch wrote the opinion, which held: “An employer who fires an individual merely for being gay or transgender defies the law.” Here are three observations about this ruling and how it will affect Christian ministries:

#1 The Court Turned Legislature

As Justice Alito stated in his dissent: “There is only one word for what the Court has done today: legislation.” The Civil Rights Act of 1964 clearly prohibited discrimination on the basis of “sex,” i.e. the law prevented employers from hiring and firing based on the fact that an individual is male or female. Though the concept of sexual orientation existed at the time, Congress did not include it as a protected class. And, the concept of gender identity would have been foreign to members of Congress at that time. Further, Congress has repeatedly taken up this issue (for example, the 2019 Equality Act) but declined to pass legislation adding sexual orientation and gender identity as protected classes in Title VII of the Civil Rights Act. Today, the U.S. Supreme Court essentially amended the Civil Rights Act by holding that hiring or firing based on sexual orientation and gender identity is a decision made on the basis of sex. This decision clearly cuts against the plain meaning of the law and circumvents the legislative process.

Many commentators have noted that the opinion was written by Justice Gorsuch, a Trump appointee with a long history of textualism (the judicial philosophy that judges should accept the plain or clear meaning of words in a law). And, Gorsuch attempted an explanation as to why this decision is consistent with his preferred textualist approach. But, Alito took him to task on this point, stating: “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” In sum, as Justice Kavanaugh stated in his dissent, “Under the Constitution’s separation of powers…it was Congress’s role, not this Court’s, to amend Title VII.”

#2 The Questions for Later

This case specifically addresses employment decisions made by for-profit employers on the basis of sexual orientation and gender identity, but it raises a number of questions related to religious liberty. Now, I should note that Title VII already includes exemptions for religious employers and that this decision did not directly impact those exemptions, the ministerial exception (allowing ministries to hire and fire based on deeply held religious beliefs) or the Religious Freedom Restoration Act (which heightens judicial scrutiny on religious claims).

Here’s Justice Gorsuch’s explanation on this point, found on pg. 33 of the opinion: “Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society…But how these doctrines [Title VII exemptions, the ministerial exception and RFRA] protecting religious liberty interact with Title VII are questions for future cases too.” Stated differently, though this case did not strip away religious exemptions or protections for ministries that hold to a Biblical view of human sexuality, it did not strongly secure them either. Justice Gorsuch opined that RFRA may supersede the application of Title VII; but, the Court’s assurance that “hey, we’ll work that out later” is of little consolation given its simultaneous and unilateral amendment of a half-century-old law. For example, if “sex” is reinterpreted to include sexual orientation and gender identity across the federal code, this could negatively affect ministry employment practices, Christian educational institutions and voucher programs, participation in federal programs (think the Payroll Protection Program or community impact efforts) and even tax exemption. Further, if the owner of a for-profit business (who is a Christian) cannot in good conscience use the preferred pronoun of an employee, this could be used as evidence of discrimination, harassment or hostility. In sum, this ruling raises profound questions about (1) living out Christian convictions in the marketplace and (2) the durability of religious liberty protections for ministries.

#3 The Cultural Long Game

The law is both a student and a teacher. It responds to cultural trends and then informs them. So, what does this ruling teach us about American culture and where it is headed? And, how should Christians respond? Here are a three thoughts from a Scriptural, cultural and legal perspective:

• Scriptural. This decision divorces sex from biology. Per federal law, the concepts of maleness and femaleness are now considered elastic and self-determined rather than rooted in God’s good design (Mark 10:6). Christian employers need to think carefully about Scripture and what faithfulness looks like given this ruling. Most Christian employers, citing the fact that all people (including individuals who have chosen a homosexual or transgender lifestyle) are made in the image of God, already treat all of their employees with equal dignity and respect. But, a government mandate to use an employee’s preferred pronoun (for example, a request to call a biological male “her”) is arguably a command to participate in a falsehood and to condone /participate in an unbiblical revolution. For more on this, consider Andrew Walker’s God and the Transgender Debate.
• Cultural. The facts that Justice Gorsuch wrote this opinion and that Justice Kavanaugh praised the LGBTQ community’s political activism (pg. 27 of his dissent) shows the progress of the sexual revolution and the importance of Christian efforts to recover a Biblical view of marriage and human sexuality.
• Legal. Congress could act to remedy or at least clarify this decision, but that is unlikely given the current majorities in the House of Representatives and the Senate. Further, the fact that Justice Gorsuch wrote this opinion raises questions about the wisdom of voting for presidential candidates so they will, in turn, appoint conservative justices.

If you have followed my work for some time, you know that I am not one given to hand wringing and hyperbole. This is a significant ruling, but let’s take public life one decision at a time. This decision most clearly prevents for-profit businesses from making adverse employment decisions on the basis of sexual orientation and gender identity. Though many Christians (including this one) were surprised by the means of this change in federal law (a Supreme Court decision written by Justice Gorsuch), Christians that follow cultural and legal trends were not surprised by the result. Religious liberty has enjoyed a brief respite over the last few years, but that may be coming to an end. For all of the above reasons, we need to renew our dedication to the principles of Scripture and to winsomely but courageously living out those principles in public life.

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