Discrimination in the workplace is wrong. People should not be fired because of sexual orientation or for any other reason unrelated to their ability to perform a job.
Because of this, it’s easy to follow the inclination to cheer the U.S. Supreme Court’s 6-3 decision Monday that extended civil rights protections, enacted in 1964, to gay and transgender people who are fired on the basis of sexual orientation.
But this remains a nation of laws. Process matters, and the Constitution clearly defines which of the three branches of government makes laws. It isn’t the judicial branch. If Title VII of the 1964 Civil Rights Act should outlaw discrimination because of sexual orientation, Congress — whose members represent the people who elected them — should make that change.
Justice Samuel Alito, one of the three dissenters in this case, spelled out one of the structural weaknesses that occur when judges write law. Their decisions don’t consider the many nuances a representative body would have to confront, nuances necessary for protecting the rights of all. The political system forces elected representatives to confront these and hammer out compromises in order to craft legislation that will receive enough votes to become law.
In this case, Alito said, one of the nuances concerns religious freedom. Monday’s decision “will threaten freedom of religion, freedom of speech, and personal privacy and safety,” he wrote. “No one should think that the Court’s decision represents an unalloyed victory for individual liberty.”
Specifically, he said the decision could affect a religious institution’s freedom to hire people who share and practice the institution’s faith. Citing concerns raised in briefs filed by a number of religious organizations, he noted that a church’s teachings on extra-marital sex or sex-change operations may be lost if its schools are forced to hire someone who believes and practices otherwise. “Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment,” he said.
He added that the ruling could affect the interpretation of gender-equity laws in cases that arise from a college’s policy against assigning dormitory roommates who are of the opposite biological sex.
The court’s majority opinion, written by Trump-appointee Neil Gorsuch, dismissed those concerns.
“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,” he wrote.
But those are not new concerns, he added. Other laws already provide protections. The court has even ruled that the First Amendment can’t interfere with a religious institution’s relationship with its ministers. Monday’s ruling didn’t concern these things.
Then he added this ominous line:
“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
In other words, more court decisions changing laws.
Congress has, unfortunately, been too divided across strict partisan lines in recent years to fulfill its role in finding workable solutions to culture war issues. That is inexcusable. When the nation’s lawmakers refuse to act, the executive branch issues orders and the judicial branch considers whether to expand rights based on Supreme Court rulings.
Congress ought to amend Title VII of the Civil Rights Act of 1964 to bar discrimination based on sexual orientation, just as it should then provide exemptions that protect all people while exercising their rights and liberties. That would be the only real, lasting and representative solution to this and other problems facing the nation.