Legal experts, educators wary of fallout from Bostock
September 17, 2020
Recent Supreme Court decision could compromise mission and life of Catholic colleges and universities
Administrators, educators and religious rights advocates across the country are keeping a close eye on what may happen to the religious freedom of Catholic colleges and universities following a revolutionary U.S. Supreme Court decision this past summer.
In its June 15 decision, Bostock v. Clayton County, the high court ruled 6-3 that Title VII of the 1964 federal Civil Rights Act protects employees against discrimination based on their sexual orientation or gender identity (SOGI).
While religious rights protections in the 1964 federal statute and other legal factors – including another Supreme Court decision this summer – mean the decision will likely have no immediate impact on the religious rights of Catholic institutions of higher learning, the potential long-term effects of Bostock are worrying.
Among concerns raised, Bostock’s redefinition of sexual discrimination to include SOGI appears to further a trend by the country’s highest court to legislate morality, evidenced by such cases as Roe v. Wade, its 1973 decision that legalized abortion on demand, and Obergefell v. Hodges, a 2015 decision legalizing same-sex “marriage.”
As in these previous cases, future federal and state legislation, regulations and lawsuits could eventually force Catholic schools to comply with Bostock, compromising their ability to witness to the Church’s teachings, especially in areas of sexual morality.
In complying, Catholic universities and colleges would have to accommodate employees who, after being hired, publicly identified as either homosexual or transgender, thereby eroding the rights of Catholic schools to require their employees to publicly uphold Catholic moral standards.
Among countervailing factors was another SCOTUS decision handed down this summer that recognized the autonomy of religious educational institutions. On July 8 the Supreme Court decided Our Lady of Guadalupe School v. Morrisey-Berru by broadening the definition of the “ministerial exception” formalized in a 2012 Supreme Court decision, Hosanna Tabor v. EEOC.
In the Hosanna decision, the Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ selection of religious leaders. In the Guadalupe decision, the exception was broadened to include persons serving in leadership positions in religious institutions, even though they might not hold a formal title (such as “pastor”) or receive formal training.
While legal experts may disagree on whether or how the broadened definition of sexual discrimination in Bostock will affect Catholic institutions of higher learning, they all agree it will result in litigation, said Matthew Heffron, legal counsel in the Omaha office of the Thomas More Society, a national non-profit public-interest law firm defending life, the family and religious freedom.
“Bostock is going to bring a lot of lawsuits,” he said, “and the Catholic Church seems to be a favorite target for a lot of secularists. So I assume there will be lawsuits against Catholic schools as well.”
Heffron told the Catholic Voice that the best way for Catholic schools to successfully battle such lawsuits is to ensure that employee contracts and other employment-related documentation make clear the purpose and religious nature of those institutions.
“From my experience, there should be tight contracts and factual provisions with the employees,” he said. “Usually most Catholic schools have seen (a decision such as Bostock) coming for a while, and they have those sorts of contracts which basically say not only do you have to agree with the teachings of the Catholic Church, but you have to be willing to live by them as well.”
Heffron added it’s important that Catholic colleges and universities understand Bostock ruled on a provision in federal law – Title VII in the Civil Rights Act – not on the Constitution itself.
“Therefore, Bostock doesn’t have any impact on state law at all, or on local ordinances,” he said.
But Catholic institutions should be concerned, Heffron said, that Bostock has expanded definition of the word “sex.” Prior to Bostock, he said, “sex” in legal terms referred to the stock dictionary definition of the two genders, male and female – not SOGI.
“For 45 years Congress has been trying to get SOGI included under Title VII, and they couldn’t get it done,” Heffron said, referring to repeated legislative attempts to include homosexuality – and more recently transgenderism – in the legal definition of “sexual discrimination.”
“If Congress didn’t think SOGI was included under the word ‘sex,’” he added, “and they clearly didn’t think it did – otherwise they’d be providing laws for it – why would the Supreme Court step in at this moment and legislate?
“That was Justice (Samuel) Alito’s harshest language in his dissenting opinion: ‘There is only one word for what the Court has done today: legislation.’”
CLEAR AND PRESENT IDENTITY
Heffron said secular forces opposed to Catholic teaching are waiting for their chance to bring suit against Catholic schools – and some, such as the LGBTQ activist organization Campus Pride, are even amassing data on Catholic and other colleges and universities that promote a traditional view of sexual morality. Campus Pride’s “Worst List: The Absolute Worst Campuses for LGBTQ Youth” is an online databank of “anti-LGBTQ” colleges, which includes several Catholic institutions.
Those schools also typically make the list of recommended colleges in the annual “Newman Guide to Choosing a Catholic College,” published by The Cardinal Newman Society (CNS), a Virginia-based organization dedicated to promoting authentic Catholic higher education.
CNS’s founder and president, Patrick Reilly, said that while Bostock presents no immediate threat, Catholic colleges and universities should not be resting easy.
“In the short run in regard to religious protections from the direct application of the law, I’m pretty optimistic,” he told The Catholic Voice. “Today, there are stronger legal protections for religious freedom than there were 15 years ago – on the books, at least. My concern though and where I’m pessimistic is that ultimately the cultural tide rolls over those protections.”
It’s only a matter of time, Reilly added, before lawsuits begin to challenge Catholic schools on employment practices.
“The LGBT movement has made it clear that they are not content that Catholic and other religious institutions are exempt from these anti-discrimination laws,” he said. “They’re going to pursue a Constitutional ruling that says Catholic institutions are discriminating, and therefore there can be no exemption because of religion.”
Reilly believes that in addition to sound human resources practices and clear documentation, Catholic colleges and universities can protect themselves with a strong Catholic identity in their mission and life on campus.
“If a school has any inconsistency in how it applies its Catholic identity, particularly in its employment policies,” he said, “then courts are going to push back very hard on religious freedom defenses.”
Even schools featured in “The Newman Guide” can improve in this area, Reilly added.
“CNS does a lot of work with some of the best Catholic schools and colleges in the country,” he said, “and we’ve seen multiple instances where their policies were not clearly articulated and in fact sometimes left gaping holes for someone to engage in inappropriate behavior. If there’s no clarity, they’re going to have problems with employment.”
Yet even those schools with a strong Catholic identity and life, together with sound employment practices, might not be able to escape the cultural impact of Bostock, Reilly said.
“Even if Catholics schools and colleges maintain the legal right to have a school that ‘discriminates’ against a subset of people, society as a whole is not going to tolerate that situation,” he said. “If culturally, the vast majority of America thinks that Catholic schools are being blatantly discriminatory, the consequences for Catholic schools are going to be severe. These consequences may not be directly from the law, but I worry about Catholic schools surviving as institutions.”
TITLE VII AND TITLE IX
Reilly also sees an emerging challenge to religious liberty in another provision of the 1964 Civil Right Act now subject to reinterpretation: Title IX, which prohibits discrimination in university and college athletic programs.
The issue was raised by Justice Alito in his dissenting opinion on Bostock.
“The effect of the Court’s reasoning,” he wrote, “may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female, or students who are taking male hormones in order to transition from female to male.”
“Title XI is usually interpreted according to however Title VII is interpreted,” Reilly commented. “Bostock will quickly become a Title IX issue. Under both Title IX and Title VII, there is pretty good language in the law that protects religious institutions, but as we know, the courts can reinterpret that in a lot of ways.”
Heffron concurred, citing the principle that whatever holds good for employment practices is equally applicable to athletic programs.
“Even though Bostock was an employment law decision,” he said, “other challenges to anti-discrimination laws will simply cite Bostock. If sex is defined to include SOGI in Title VII, according to Bostock, it should be defined to include SOGI in all discrimination statues, Title IX included.”
TRUTH IN ADVERTISING
One of the Catholic colleges featured in “The Newman Guide” is Benedictine College in Atchison, Kansas. According to its president, Stephen Minnis, the school’s strong Catholic identity already addresses concerns raised regarding Bostock.
“All our programs have to be consistent with our mission,” he told The Catholic Voice, noting for example that the college has a policy requiring single-sex dorms, and all theology faculty are required to sign the mandatum called for by St. Pope John Paul II’s 1990 apostolic constitution, Ex Corde Ecclesiae (“On Catholic Universities”), formally acknowledging their instruction is in line with Catholic Church teaching.
“Living our mission and keeping what we call truth-in-advertising in regards to our Catholic identity is the most important thing we can do,” Minnis said.
As part of Benedictine’s commitment to its Catholic mission, he said, the school also communicates that mission – in clear and unequivocal terms – to all employees.
“In our hiring decisions, we work hard to hire mission-fit persons to work in Benedictine College who are committed to living the mission of the college,” he said. “That’s probably the most important thing we can do in light of Bostock.”
Minnis said that, since he as president makes the final decisions on new employees, he makes sure they understand the college’s mission during the interview process.
“In those interviews, I go into painstaking detail on every aspect of our mission,” he said, “I then ask them … not only if but how they will support it. It has to be an active support of the mission and how they see themselves as a mission-fit person and employee at the college. If they can’t support that, then they’re probably not for us.”
A 1982 alumnus of Benedictine, Minnis worked as a lawyer in both the public and private sectors before taking the helm at the college in 2004. His work in law has given him a better understanding of the ramifications of Bostock – but also a recognition that the Guadalupe ruling also serves as an important ally in Catholic schools’ fight to maintain their religious freedom.
“You have to read those almost in concert with each other and say that religious freedom is still being protected by the Supreme Court – as long as you can demonstrate and live up to your Catholic mission and that you’re worthy of those religious freedom protections,” he said.