By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.
As analyzed in a previous post on this blog, the Supreme Court opinion in Bostick v. Clayton County, 140 S.Ct. 1731 (2020), was a mixed bag for LGBT rights under Title VII of the Civil Rights Act of 1964 (“Title VII”). Even as Justice Neil Gorsuch was writing that Title VII’s protections extend to sexual orientation and gender identity, he acknowledged the religious implications of the decision:
“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.”
Much of Justice Gorsich’s opinion, in fact, is a road map for future religious challenges to LGBT claims under Title VII, including (1) Title VII’s statutory exception for religious organizations, (2) the Religious Freedom Restoration Act (“RFRA”); and (3) the First Amendment.
This road map was put to the test in a declaratory judgment class action lawsuit brought in the U.S. District Court for the Northern District of Texas against the U.S. Equal Employment Opportunity Commission (“EEOC”) and the EEOC Commissioners.