How the Supreme Court's 2020 Ruling in Bostock Affects Churches and Ministries

Bostock V. Clayton County

Alliance Defending Freedom represented Tom Rost at the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, one of a trio of cases related to sexual orientation and gender identity in the employment context that were collectively decided under a decision titled Bostock v. Clayton County.

In Bostock, the Court ruled that an employer cannot fire or decline to hire an employee solely because of the employee’s sexual orientation or transgender status. The Court concluded that such employment decisions take into account the employee’s sex, and Title VII of the 1964 Civil Rights Act prohibits employment discrimination “because of sex.” The ruling rejected the common-sense understanding of Title VII’s ban on sex discrimination. However, the Court fortunately agreed that “sex” is biological and genetic.

What questions did Bostock raise?

Under Bostock, churches and religious organizations may not “discriminate” on the basis of sexual orientation or gender identity unless they can successful assert one or more potentially available defenses.

Title VII’s existing religious exemptions permit religious employers to prefer individuals “of a particular religion.” Whether these exemptions protect religious employers from claims of sexual orientation and gender identity discrimination is a hotly contested issue that will likely be resolved in future court decisions.

Other potential defenses include the Religious Freedom Restoration Act, the First Amendment’s “ministerial exception” doctrine, and other First Amendment rights courts have recognized. It remains to be seen how powerful these potential defenses will be. The Supreme Court did reaffirm and broaden the ministerial exception in another 2020 case, Our Lady of Guadalupe School v. Morrisey-Berru. Learn more about this case and its impact here.

If courts reject these defenses, churches and religious organizations will face a number of challenging questions, including the following:

  • Can religious organizations maintain faith-based conduct standards that reflect their beliefs about marriage, sexual morality, and biological sex?
  • Will religious employers be forced to cover puberty blockers, cross-sex hormones, and so-called sex reassignment surgeries in their healthcare plans?
  • Will employers be required to give men who identify as women access to private spaces set aside for women (e.g., locker rooms, showers, changing stations)?
  • Will employers and employees be required to use transgender pronouns (anything other than “he” for males or “she” for females) in violation of their own religious beliefs about biological sex?

What challenges are ahead for churches and ministries?

Activists are attempting to use the Bostock decision to dramatically rewrite other federal, state, and local bans on sex discrimination to reach sexual orientation and gender identity. And they want to limit—or eliminate—religious protections in the process.

Recent federal proposals regarding sexual orientation and gender identity legislation are particularly dangerous for churches, ministries, and religious schools. For example, the deceptively named “Equality Act” would add “sexual orientation” and “gender identity” as protected classes to various laws in ways that would prohibit religious organizations from properly living out and teaching their faith. A similar piece of legislation, titled “Fairness for All,” is another deceptively named bill that poses many of the same threats to religious freedom, the rights of women and children, and the common good.

Activists also want to reinterpret Title IX of the 1972 Education Amendments to allow biological males identifying as female to compete in women’s sports. This would undermine the very purpose of Title IX and destroy fairness and opportunities for female athletes.

Simply put, these efforts to undermine the truth that we are made “male” and “female” would create chaos. Churches and ministries must be prepared to stand strong in a world that rejects the very nature of God’s design and recognize that doing so may require litigation.

What can I do to better protect my church or ministry?

The Bostock decision should motivate churches and ministries to ensure their governing documents, which are an important line of defense, provide the strongest possible religious liberty protections. Church and ministry leaders should ask the following questions:

  • Do your church or ministry’s governing documents make clear your beliefs on marriage and human sexuality?
  • Have your employees signed a statement affirming that they have read, agree with, and will abide by your church or ministry’s beliefs?
  • Has your church or ministry adopted a facility-use policy that prohibits uses that conflict with those beliefs?
  • If your church or ministry performs weddings, do you have a marriage policy grounded in your view of biblical marriage?

Members of the ADF Church & Ministry Alliance have access to ADF attorneys who can offer guidance on religious liberty issues, help you understand the legal significance of the language you use to describe your ministry, and draw your attention to potential legal issues which could impact your kingdom work. We want you to have peace of mind ensuring you stand on a firm legal foundation.

Click here to learn more about the membership.

What can my church or ministry do beyond legal preparation?

The Supreme Court’s decision in Bostock gives pastors, priests, ministry leaders, and lay people a great opportunity to reaffirm and share God’s design for marriage and sexuality.

As the Bostock decision illustrates, the biblical understanding of these important matters is continuing to erode. Your voice and the voice of your ministry can be a powerful means to change hearts on these issues. By speaking up, you can reveal the beauty of what the Bible teaches about marriage, including how our marriages picture the gospel (Eph. 5), what it means to be created in God’s image as either male or female (Gen. 1:27), and who we are as human beings.

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