BY PATRICK J. REILLY, SEPTEMBER 9, 2019
In three amicus briefs to the U.S. Supreme Court filed last month, the bishops and Catholic educators—together with other major religious groups—urged the Court to uphold the meaning of “sex.”
It’s one little word. But if the Court gets it wrong, our religious freedom could be quickly eroded.
And while all Catholics and Catholic institutions would be endangered, there is a double threat to Catholic education: both to the integrity of its employees, and to its ability to teach young people the authentic Catholic faith.
In its new term, the Supreme Court will take up three cases considering whether Title VII, the federal law prohibiting employment discrimination, covers “gender identity” and “sexual orientation” within the protected category of “sex.”
Congress has repeatedly voted to reject such an expansion of Title VII’s scope, but circuit courts have legislated from the bench and added the new categories in two rulings: Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. In Bostock v. Clayton County, Georgia, the 11th Circuit upheld the longstanding meaning of “sex discrimination” as ensuring fairness between men and women.
It’s been said repeatedly: the Church could never support outright discrimination. But the law can be a blunt and powerful weapon, and adding or expanding categories of protected classes is a very serious business. Enshrining in law the notion that moral judgments about behaviors and lifestyles are illegal discrimination akin to racism or sexism may do less to protect the human rights of the minority than to erode the human rights of others, including their religious freedom.
“Were this Court to declare that ‘sex’ as used in Title VII includes ‘gender identity,’” warns the U.S. Conference of Catholic Bishops (USCCB) in two nearly identical briefs (here and here) to the Supreme Court, “it would open the floodgates to a host of problems, including for persons and institutions with religious and moral convictions about sexual identity and sexual difference.”
For Catholic educators, an added danger is that when the Education Department enforces Title IX, the federal law concerning sex discrimination in schools and colleges, it generally adopts the Court’s interpretation of Title VII. So while the latter is focused only on employment, a distorted view of sex discrimination could be applied to every activity of a school or college that participates in any federal program. Accreditors, state licensing agencies, and athletic associations would also embrace the new standards, even when applied to Catholic schools and colleges that take no federal money.
The Cardinal Newman Society signed on to both USCCB briefs with special concern for Catholic education, which has been the target of lawsuits claiming discrimination. These suits often challenge educators’ right to dismiss employees who announce same-sex marriages. The amicus briefs explain:
To carry out their religious mission, faith-based schools must be able to hire and retain employees who agree with, and abide by the tenets of, the faith that it is the school’s purpose to impart. Few things undermine a faith-based school’s religious message as much as speech or conduct on the part of school administrators and teachers that contradict, reject, or distort that message. Children and young adults will hardly find religious faith attractive or persuasive—quite the opposite—when those in positions of authority contradict the faith by word or example. If this Court were to decide that Title VII forbids sexual orientation discrimination in the workplace, it could require that religious schools hire and retain employees who, by their speech and conduct, violate the religious teaching, including teaching on sexual ethics, that is a constitutive part of the school’s professed faith. And that in turn will imperil the ability of the school to effectively teach its faith.
See how that happens? If Catholic institutions cannot uphold moral standards for employees, they lose their integrity as Catholic. And furthermore, because schools and colleges are specifically dedicated to forming young people in the faith, a change to Title VII would threaten their ability to ensure that no employee teaches anything contrary to Catholic doctrine—especially by the witness of their behaviors and public actions outside the classroom.
Hypocrisy does not simply diminish Catholic education. It is, as we have tragically seen in many schools and colleges over the last few decades, the greatest impediment to authentic Catholic education.
This is not simply a threat to Church institutions. It is a threat to parents, who are the primary educators of their children and have the natural right to choose the education that helps form their children in truth. The USCCB rightly acknowledges this:
Government action that infringes the school’s right to convey its religious message would also infringe upon the rights of parents who want their children to be reared in that faith tradition. Parents naturally expect that the faith-based school will be led by administrators, and their children will be taught by faculty, who agree with and model that tradition for their children.
A separate amicus brief petitioning the Supreme Court on the three upcoming “sex” cases, was filed last month by more than 40 religious colleges including several faithful Newman Guide colleges: Belmont Abbey College, Benedictine College, The Catholic University of America, Franciscan University of Steubenville, and John Paul the Great Catholic University.
In addition to many good arguments against inserting “gender identity” and “sexual orientation” into nondiscrimination statutes, the colleges also make the important point that, if such a change were to be made, Congress is far better suited than the courts to write law that considers the many intricacies and likely conflicts with the First Amendment’s guarantee of free exercise of religion:
… interpreting “sex” to include sexual orientation and gender identity would grant LGBTQ employees protected class status without carefully balancing that protection against liberty-protecting provisions tailored to fit the risks and conflicts that arise for religious universities and their exercise of religion.
At the very least, the Supreme Court must acknowledge that expanding the scope of Title VII to categories that directly challenge moral standards and the Christian understanding of marriage, sexuality, and the human person is extremely complicated—unless the court chooses to simply diminish freedom of religion altogether. And that’s what’s at stake in these cases.
I urge all Catholics to pray fervently for wisdom for the Court and a good outcome. Meanwhile, Catholic educators and all Catholic institutions need to prepare for such growing threats to their religious integrity. If we are to stand any chance of preserving truly Catholic institutions within the law, then we need to do so with the greatest fortitude, fidelity, consistency, and transparency regarding our Catholic beliefs and why we can never compromise them.
Patrick J. Reilly is founder and president of the Cardinal Newman Society, a national organization to advocate and support the renewal of genuine Catholic higher education.