“LGBTQ+ Rights v. Religious Claims: Navigating the Tensions between RFRA and Title VII” by Adelaide Madera

Picture titled “Church, Religion, Freedom” from Pixabay (License).

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This article is part of our “The Religious Freedom Restoration Act at Thirty” series. If you’d like to explore other articles in this series, click here.

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n a democratic multi-religious society, regulating religious freedom is a tricky issue. However, examining the issue from the perspective of a European scholar, a general law regulating religious freedom guarantees a basic level of liberty to all faiths, preventing disparate treatment between old and new faiths on the basis of history and tradition. In 1993, the U.S. Congress took up the challenge, passing the Religious Freedom Restoration Act. The aim of this statute was “to protect the free exercise of religion” by restoring strict scrutiny, the highest standard of review that applies whenever the government’s action interferes with fundamental rights.The enforcement of RFRA aimed to restore the landmark Sherbert v. Verner’s three-pronged test (substantial burden, compelling state interest, least restrictive means) to adjudicate challenges against generally applicable provisions when free exercise religion claims are concerned. 

However, the history of RFRA has been troubled. RFRA was enacted as a political response to the U.S. Supreme Court’s decision in Employment Division v. Smith, which introduced a less religion-friendly standard of review to assess whether the government had compromised an individual’s free religious exercise. In this landmark decision, the Supreme Court replaced strict scrutiny with a rational-basis standard of review and charged the lawmaker with the task of providing religious exemptions to generally applicable laws. Although the Supreme Court limited the scope of RFRA in 1997, finding that the Congress exceeded its powers in imposing its application of the law upon states, various states reacted by enforcing their own state-level RFRAs.

It goes without saying that, not only does the analysis of various Supreme Court and lower courts decisions, such as Gonzales v. O Centro Espírita Beneficente União do Vegetal and Church of the Holy Light of the Queen v. Mukasey, show how the RFRA provides robust coverage to religious minorities’ accommodation demands, but it also plays a key role in upholding progressive religious claims, as commentators have noted.

However, in 2014, ruling in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that under RFRA a for-profit, privately held corporation can be exempted from the Patient Protection and Affordable Care Act’s requirement that employers cover contraceptive services for their employees (contraceptive mandate). In doing so, the Court brought about a concerning expansion of RFRA’s reach. The decision allowed a for-profit company to enjoy a religious exemption to the detriment of vulnerable classes of individuals among their employees. In her dissenting opinion, Justice Ginsburg raised the concern that through its reasoning the Supreme Court opened the way for employers’ conscience claims to jeopardize commitment to equality, which is at the core of workplace anti-discrimination laws. According to Justice Ginsburg, the majority’s opinion generated the risk that RFRA claims of for-profit companies “will proliferate,” as they seek exemption from complying with Title VII’s provisions, whose aim is to protect employees against employment discriminations on the basis of sex, race, religion, color and national origin. 

As is known, U.S. Congress provided an express statutory exemption limited to religious organizations in Title VII which merely covers “religious corporations, associations, educational institutions, or societies.” The risk of a collision between RFRA and Title VII was addressed in Bostock v. Clayton County, where the Court jointly considered three cases concerning employment discrimination. In Bostock, the Supreme Court provided a textualistic reading of Title VII’s ban of employment discrimination, finding that “on the basis of sex,” included discrimination based on gender identity and sexual orientation. However, in the wake of Hobby Lobby, it defined RFRA as a “kind of super-statute, displacing the normal operations of other federal laws”, giving rise to a tension between Title VII and RFRA. This approach is in complete disregard of the House Report to RFRA, which provided that “nothing in this bill shall be construed as affecting the Title VII of the 1964 Civil Rights Act.” Indeed, in Bostock, the Court avoided ruling on the clash between an alleged religious employer’s conscience claims and an employee’s rights under “anti-discrimination statutes,” as none of the parties raised religious liberty claims at that stage of the litigation. 

Indeed, in Bostock, the Court avoided ruling on the clash between an alleged religious employer’s conscience claims and an employee’s rights under “anti-discrimination statutes,” as none of the parties raised religious liberty claims at that stage of the litigation. 

The Sixth Circuit ruled on the issue in Harris Funeral Homes v. EEOC, when it considered one of the cases that was consolidated with Bostock before the Supreme Court. Applying RFRA and strict scrutiny, the Sixth Circuit underlined the difference between the case at hand and the decision in Hobby Lobby. Focusing on the establishment of a compelling state interest, the Sixth Circuit held that Title VII protects disadvantaged classes of employees against discrimination in the workplace. There is little doubt that such an interest is compelling and can justify restrictions to the free exercise of religion. Furthermore, the Sixth Circuit determined there was not a less restrictive means to meet such an interest. Finally, the Court found that “mere compliance” with Title VII’s provisions does not imply an endorsement of the employee’s views. Thus, according to the Sixth Circuit, the facts of the case justified a restriction on religious exercise under RFRA’s standard.

The Fifth Circuit recently adopted a different approach in Braidwood Management, Inc., v. EEOC. Here, the Fifth Circuit held that a for-profit corporation is exempted from complying with the Title VII’s ban against sex discrimination because of the religious beliefs of the owner. In that case, a Christian-owned company, Braidwood Management, Inc., and a non-denominational Church, Bear Creek Bible Church, filed a class action lawsuit against the EEOC, requesting a declaratory judgment that Title VII’s prohibition against sex interpretation, as interpreted in Bostock, infringed the First Amendment’s Free Exercise Clause and RFRA. They also sought a ruling that Title VII does not prevent employers from establishing sex-neutral rules of conduct, such as sex-specific dress codes, restroom usage on the basis of biological sex, and prohibitions against same-sex marriage. Plaintiffs contended that such policies focused on individual’s behavior, not on their asserted identity.  

In Braidwood Management, the district court held that religious employers enjoy a full exemption from Title VII requirements “to hire, retain and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity.” According to the district court, Title VII imposes a conflict of loyalty on employers, as they are forced to choose “between two untenable alternatives”: violating a generally applicable federal law or their religious tenets. However, the court sided with the EEOC’s claims that Title VII forbids discrimination against bisexual employees and that employers are not allowed to prohibit employees to undergo sex-reassignment surgery or take hormone therapy. 

The district court emphasized the distinctive nature of the two petitioners. It defined Braidwood’s class action as a “religious business type” employer class action, while the bible church’s action qualified as “church-type employer class action” and was statutorily exempt from Title VII.  However, finally, it certified two classes: “religious business-type employers,” whose members are exempted from any prohibition against sexual orientation and gender identity discrimination through the RFRA, and “all opposing employers,” whose policies concerning sexual conduct of employees, dress codes, and sex-based restroom assignments do not infringe Title VII, but are not exempted from bans against discrimination against “bisexuals and gender-affirming medical care.” 

On appeal, the Fifth Circuit supported the idea of “religious business employers,” which include “for-profit entities producing a secular product,” and take advantage of multiple legal regimes. The court acknowledged that, “while faith may be a motivating part of the businesses’ missions, their incorporating documents generally do not include a religious purpose,” “for an employer like Braidwood, religion plays an important role but is not the sole mission of the organization.” In the wake of Hobby Lobby, the court reiterated the reasoning that “a law that operates so as to make the practice of . . . religious beliefs more expensive in the context of business activities imposes a burden on the exercise of religion,” rendering even more blurred the boundary between religious organizations and businesses with regard to the protection of a “religious” identity.

Moreover, the Fifth Circuit seems to provide limited space to the importance and scope of the “compelling state interest” to eradicate employment discrimination founded on gender identity and sexual orientation in a debatable way. Although it acknowledged that the Supreme Court could someday determine that preventing commercial undertakings from discriminating on the basis of gender identity and sexual orientation is a compelling state interest, overriding free exercise of religion, “it has never so far held that.” Indeed, the Supreme Court found that RFRA “might supersede Title VII’s commands in appropriate cases.”  So, the Fifth Circuit went beyond Bostock. It took the Supreme Court’s possibility and applied it to an actual case. Furthermore, referring to earlier Supreme Court’s decisions in Fulton v. City of Philadelphia and Gonzales v. O Centro Espírita Beneficente União do Vegetal, the Fifth Circuit declined to identify the EEOC’s “generalized interest in prohibiting all forms of sex discrimination  in every potential case” as a compelling state interest. Instead, the court explained, the government should demonstrate “the asserted harm” coming from “granting specific exemptions to particular religious claimants” whose sincere exercise of religion would be “substantially burdened” by the application of the generally applicable provision. 

Furthermore, the Fifth Circuit held that the denial of the exemption is not the least restrictive means of promoting the “compelling state interest” of preventing discrimination based on gender identity and sexual orientation. On this point, the court suggested that the EEOC could “propagat[e] guidance that provides a framework for employers, like Braidwood, that oppose homosexual or transgender behavior on religious grounds, to obtain an exemption.” However, such an argument does not offer an effectively less restrictive alternative to pursue the government’s interest while providing reasonable accommodation to religious exercise. According to the court’s reasoning, the EEOC’s guidance might regulate the procedure for religious businesses to get access to exemptions, but would not be aimed at restricting the number of businesses claiming such protection or at narrowing the interpretation of what constitutes a “substantial” burden requiring accommodation, with a view toward excluding mere complicity claims. In its analysis, the court completely altered the balance between general rules and exemptions provided by Title VII, overlooking the issue of third-party harm. 

Although the standards to determine third-party harm are still an object of debate, they have traditionally been an element  in strict scrutiny analysis. For example, in Hobby Lobby, the Supreme Court suggested a solution that reconciled governmental interest and religious claims with a view toward zeroing the impact of the religious exemptions on third parties (namely, the extension of the same kind of accommodation provided to nonprofit organizations). In Zubik v. Burwell the Court reiterated that third-party burdens act as a “limiting principle” on the legitimacy of religious accommodation. So, in these cases, religious freedom gained accommodation as long as a less restrictive alternative was available. Braidwood, in contrast, mirrors a dangerous judicial trend where the third-party burdens are removed from judicial analysis. Such an approach is gradually eroding the traditional paradigm according to which not only religious freedom cannot harm others, but also it cannot impose undue coercion on those who do not share the same convictions, which is at the core of the religious protection in the U.S. constitutional framework. 

Such a categorical approach is at odds with the European perspective as exemplified by the  judgments of the European Court of Human Rights, where the accommodation of religiously-based conscientious claims has to go through a proportionality analysis and depends on the availability of public mechanisms aimed at mitigating the implications of religious exercise on the rights of others. Following this view, no right can become a tyrant over the others.

Such a categorical approach is at odds with the European perspective as exemplified by the  judgments of the European Court of Human Rights, where the accommodation of religiously-based conscientious claims has to go through a proportionality analysis and depends on the availability of public mechanisms aimed at mitigating the implications of religious exercise on the rights of others.

According to the first commentators, the conflicting results the two circuits achieved is due to the “underlying facts.” As a declaratory judgment was rendered, in Braidwood no employee was burdened because of the employment policies. However, this reasoning promotes the idea that RFRA can work as a protective shield against compliance with Title VII in the employment relationship, leaving many questions unresolved. Indeed, not only did the Fifth Circuit not clarify how third-party burdens can be avoided, but also it did not propose workable solutions, which should take into account their affordability for the government and the existence of effective governmental intent to prevent such burdens. In Braidwood, the option that the government can provide a less restrictive alternative to satisfy the government’s interest, as occurred in Hobby Lobby, seems highly unlikely. In my view, it is unlikely that the government will directly provide a comparable job position to all those who are dismissed or not hired by religiously-owned businesses, because in Hobby Lobby, the Supreme Court provided a less restrictive alternative:  that “the organization’s insurance issuer or third-party administrator” should “exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without placing “any cost-sharing requirements . . . on the eligible organization.” The lack of financial, legal, and social sustainability of such an interpretation of RFRA renders the statute politically attackable. Indeed, the current judicially distorted interpretation of the Act, giving rise to religious privilege, risks exacerbating political reactions, aimed at reducing the RFRA’s scope. However, its full overhaul risks undermining even its uncontroversial uses, giving rise to the risk that the concern over third-party harm would subsume the RFRA altogether, to the detriment of genuine religious claims of religious organizations running their charitable apostolates and serving the poor, and those of vulnerable religious minorities whose protection is the main goal of the Act. The Braidwood case will probably undergo Supreme Court’s review. If it does, the Court should reestablish a proper balance between general rules and religious exemptions, with a view to restoring the original intent of RFRA and depolarizing the clash between competing interests.♦

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Recommended Citation

Madera, Adelaide. “LGBTQ+ Rights v. Religious Claims: Navigating the Tensions between the RFRA and Title VII.” Canopy Forum, October 19, 2023. canopyforum.org/2023/10/19/lgbtq-rights-v-religious-claims-navigating-the-tensions-between-the-rfra-and-title-vii