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ANALYSIS — Gorsuch hinted to stay tuned for more religious freedoms and gay rights

TED CARTER

By TED CARTER

Mississippi’s Religious Liberties Accommodations Act and similar laws across the country could put the first dents in newly created legal protections for gay, lesbian, bi-sexual and transgender people.

Conservative U.S. Supreme Court Justice Neil Gorsuch feared “massive social upheaval” would result from giving protections to LGBTQ workers under the Civil Rights Act of 1964. The upheaval he predicted the mid-June ruling may come as the Supreme Court moves the question of LGBTQ protections from individuals in the workplace to protections against discrimination from Main Street businesses.

In writing the 6-3 opinion joined by Chief Justice John Roberts and the court’s liberal justices, Gorsuch warned of new legal conflicts arising from the decision.

Gorsuch, appointed to the high court early in President Trump’s term, cautioned that since the court’s ruling in Bostock v. Clayton County, Ga., applied strictly to the workplace, it left a lot of issues unanswered. These could include Mississippi’s Religious Liberties Accommodations Act, a measure enacted in the middle of the last decade that allows business owners to invoke religious faith in refusing service to LGBTQ customers.

A federal district court put a stay on enforcing Mississippi’s faith-based law but an appeal to the Fifth Circuit Court of Appeals led to a 2017 reinstatement of the law with a finding that the plaintiffs lacked legal standing to seek the stay. The U.S. Supreme Court in 2018 declined to hear an appeal.

While LGBTQ customers are for now fair game for the exclusion policies of Mississippi businesses, employees who fit such sexual preference categories are protected under the Gorsuch ruling.

The ruling specifically expanded rights outlined in Title VII of the landmark Civil Rights Act of nearly 60 years ago. The case’s multi-year trek to the Supreme Court began with the three separate suits by fired LGBTQ workers. The court consolidated the cases under a complaint brought by Gerald Bostock, a worker for Clayton County, Ga., dismissed after he joined a gay softball league.

Mississippi’s law is said to be fashioned at least in part from the federal Religious Restoration Act of 1993.  The Bostock ruling does not touch on the federal law at all. But Gorsuch indicated laws designed to protect religious faith leave room for considering faith-based exceptions. Such exceptions “raise free exercise arguments that merit careful consideration,” he wrote.

Congress was expansive in crafting the 1993 law, Gorsuch noted, by prohibiting the federal government from “substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.”

It is a kind of “super statute,” Gorsuch wrote, that “might” supersede Title VII’s commands in appropriate cases.

“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases, too,” he said.

Gorsuch figures the federal faith-based law could have been a factor in the cases that led to the Bostock ruling. However, none of the employers argued that “Title VII will infringe their own religious liberties in any way.”

In the meantime, Mississippi businesses keep the option of refusing service to LGBTQ customers on the basis of offending the business owner’s religious faith. But they lose the right to fire LGBTQ workers whose sexual preferences conflict with the owner’s faith.

“This is a very interesting scenario,” said Steven Cupp, a Gulfport employment law attorney with Fisher and Phillips, in an example in which a restaurant can reject  LGBTQ customers but not LGBTQ workers.

But does the opinion does leave an opening for employers to argue for exceptions to Bostock for religious reasons, particularly for religious institutions? Perhaps it does, said Mary Clay Morgan, a Jackson-based employment lawyer and partner with Bradley Arant Boult Cummings.

“I’m certain there will be more litigation in the future on this issue,” Morgan said in an email.

“But most employers do not want to be a test case.  My advice to clients would be that after Bostock, the safe course is to disregard an employee’s LGBTQ status in all hiring” and firing decisions.

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About Ted Carter