WALTER OLSON, CATO INSTITUTE
Last week’s Supreme Court decision in Bostock v. Clayton County, interpreting employment discrimination on the basis of “sex” to include sexual orientation and gender identity, has sparked a fair bit of talk about how religious liberty is supposedly circling the legal drain (related Twitter discussion here). The best single response I’ve seen to these concerns is this new article in The Dispatch by David French, himself a longtime religious liberty litigator.
To summarize French’s argument briefly: on issue after issue, notably including access to public funds/facilities, religious litigants have been gaining, not losing, ground at the Supreme Court. In two major pending cases, Espinoza v. Montana Division of Revenue and Fulton v. City of Philadelphia, they’re hoping for major further advances. Religious institutions, including church schools, enjoy an additional cordon of constitutional protection under a series of cases that include the Supreme Court’s unanimous 2012 Hosanna‐Tabor ruling on the employment of religious teachers, in which liberal and conservative Justices locked arms to defend church autonomy.
Another large, taken‐for‐granted area of federal law specifically bans workplace discrimination against religious believers, reflecting a bipartisan choice, rightly or wrongly, to subordinate private employers’ liberty to the dignity and equality interests of the religiously devout. This body of law includes a specific added dimension requiring employers to engage in accommodation and not merely non‐discrimination; Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch recently signaled interest in expanding these provisions. Meanwhile, federal laws such as the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act prescribe affirmative rights of religious accommodation in various other areas of law.
The literalist reading of Title VII that persuaded Justice Gorsuch and five others last week in Bostock is hardly beyond criticism — it had earlier deeply split prominent textualist judges at the lower court level, as at the Seventh Circuit in Lively v. Ivy Tech, in which Judge Frank Easterbrook joined the 8–3 majority to back the eventual Gorsuch/Roberts view, while Judge Diane Sykes penned a vigorous dissent. As colleague Ilya Shapiro points out, both Justices Brett Kavanaugh and Alito advanced telling critiques of the literalist reading in their dissents last week. At the same time Gorsuch, writing for the Bostock majority, noted that the case neither raised nor resolved any religious liberty claims, and went out of his way to emphasize the solicitude for such concerns he believed the Court would bring to future cases. Whether or not because Gorsuch got all four liberal justices to sign on, the reaction from some religious‐liberty advocates has been, in essence, “we don’t believe you.”
I would add, however — these are my points rather than French’s — that the constitutional claims aimed at advancing the rights of religious believers in Espinoza and Fulton are way more important over the long term than the statutory stuff in Bostock, which will become passé next time Congress gets around to revising the discrimination statute and the President signs the bill.
Whether besiegement is a fair metaphor for the social and cultural trends buffeting conservative religion, others can debate. But as a legal matter, religious liberty is in a stronger position today in American law than some of its proponents seem prepared to concede. Cato, incidentally, has filed on the side of First Amendment religious concerns in many of the leading cases of the past decade, including Little Sisters, Hobby Lobby, and Masterpiece Cakeshop. A few related issues here and here.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.