Many Americans will celebrate today’s Supreme Court ruling, Bostock v. Clayton County, which extends federal nondiscrimination protections to gay and transgender individuals. Gay and transgender people should not lose their jobs as a result of their sexual or gender identity. But, in securing the rights of one persecuted minority, courts and lawmakers must take care not to use the law to in turn harm another emerging minority: Americans with traditional religious beliefs about sexuality and marriage.
As Justice Neil Gorsuch wrote for the majority today in its 6-3 ruling protecting LGBTQ workers, “the promise of the free exercise of religion … lies at the heart of our pluralistic society.” This promise, however, requires concerted vigilance as new majorities and minorities emerge.
For religious individuals and employers in this country, a number of questions remain. Though well-intentioned, the ruling may unleash potential legal problems for faith-based organizations, including schools and universities. Its reasoning also raises substantial questions about entirely benign separations of sexes at work, such as with restrooms, locker rooms and so forth.
Truth, the Danish philosopher Søren Kierkegaard once observed, “always rests with the minority, and the minority is always stronger than the majority, because the minority is generally formed by those who really have an opinion.” But soon, Kierkegaard wrote, the strength of the minority view captures the majority.
The truth once again “reverts to a new minority.”
This minority-majority cycle replayed itself even before the nation’s founding. From religiously homogenous England, minority sects fled for the Americas, seeking to carve out their own space in the world. The new majority, however, soon forgot the ideals of religious freedom for which they strived.
Months after the pilgrims celebrated their first Thanksgiving in October 1621, Gov. William Bradford called on his citizens to work on Christmas — a holiday the pious pilgrims were in fact loath to recognize. New colonists, however, wanted to celebrate it, claiming “it went against their conscience to work on (Christmas) day”.
Although Gov. Bradford excused them from work, upon returning from lunch he was horrified to find them engaged in festivities. He confiscated their sports equipment. They could celebrate Christmas privately in their homes. Some years later Christmas would be outlawed for 22 years.
The persecuted became the persecutors. Those who sought tolerance struggled with intolerance. And soon, the newly arriving Puritans turned newfound rights from shields into swords, forcing their views on others. In 1635, Roger Williams was convicted of heresy for his ”diverse” and “dangerous opinions” and was banished from the community. Anne Hutchinson also faced severe retribution for holding religious meetings and discussions contrary to the public authorities.
The ebb and flow of majoritarian-counter-majoritarian waves didn’t cease with the American Revolution, although the nation’s founding sought to protect minority rights and unpopular opinions via First Amendment freedoms.
With an emerging suite of newfound rights, including today’s opinion, the LGBTQ community has appropriately carved out its own space in society. This is a worthy and hard-fought effort. But, as the nation has come to adopt new protections for what was once a minority position, there is always the risk of persecuting a new minority.
In Michigan, for example, a master’s degree program expelled a graduate student for declining to provide counseling services to a gay person. The student refused based on religious beliefs. In Massachusetts, during reading time at a public school, the class read a story about two princes falling in love. When religious parents of a 7-year-old asked for notification when gay marriage would be taught so they could withdraw their child for that part of the school day, the school refused and was protected in doing so. In Oregon, a family of bakers was fined $135,000 for refusing to bake a cake for a lesbian couple. They were ordered to not speak to the media. To cover the costs, they opened a GoFundMe page, but it was then subsequently shut down due to pressure by activists. Their business was picketed and forced to close.
The LGBTQ community must have rights. How, then, do we break the minority-majority persecution? While it may be inevitable that minority-majority cycles repeat themselves, attendant oppression must never be. This can only happen as politicians and judges seek to balance competing rights and as legislators broker long-lasting compromises that provide fairness for all.
To have the appropriate effect, subsequent rulings and actions by lawmakers must live up to the majority’s assurance that religious rights will be protected.
Let us use history to “judge the past (and) instruct the (present) world” for the benefit of future generations. Today, many rightly celebrate the space and newfound rights and protections for LGBTQ people; but, society must find gratitude in true diversity and tolerance, rather than any justification to perpetuate oppression against a new minority. From our reading, this is the spirit of the court’s ruling today, but ensuring that the law fully lives up to it must be the work of every good-hearted American.
Hal Boyd is an associate professor of family law and policy in BYU’s School of Family Life and a fellow of the Wheatley Institution. Robert Snyder is an attorney based in Salt Lake City. Their views are their own.
This column has been updated.