On Tuesday, the U.S. Supreme Court heard arguments about whether the 1964 Civil Rights Act prohibiting discrimination “on the basis of sex” should be reinterpreted by the court to add the categories of sexual orientation and gender identity to the law. Congress has failed to do this multiple times, so advocacy groups have turned to the courts. The problem is that a yes-or-no court decision does not allow balancing LGBT protections and accommodations for religious employers like schools and charities that seek to do their work consistent with their faith.

As the October 8, 2019, argument has highlighted, this case implicates core separation of powers concerns. The employers point out that when Congress enacted Title VII, it did not intend to include sexual orientation and gender identity. Since 1964, Congress has considered bills that would add sexual orientation and gender identity to Title VII but have never succeeded (most recently with the Equality Act). So, they argue, Congress itself has recognized that if the law is to change, it is a legislative responsibility, rather than the courts’ prerogative to reinterpret an existing law to get a result that Congress has failed to endorse.

Another related concern raised in this case relates to religious liberty. Religious organizations supporting the position that Title VII should not be reinterpreted by the courts point out that if Congress were to consider legislation to add sexual orientation and gender identity as protected classes in federal employment discrimination law, then the legislative process would allow give-and-take, where LGBT workers can be extended protections at the same time that religious employers can be protected. This has happened in states like Utah, where LGBT rights were enacted at the same time protections were added to the law to ensure religious organizations would not be required to make employment decisions at odds with their missions.

For instance, religious schools or charities sometimes have conduct codes for employees to ensure that employees support, in words and behavior, the principles of the organization. When those codes require sexual conduct be confined to marriage between a husband and wife, as the world’s major religions define it, this could be construed as sexual orientation discrimination. Or the same employer might have sex-specific employment requirements based on sex at birth that may be considered gender identity discrimination.

In the legislative process, appropriate accommodations of an employers’ religious beliefs can be combined with protections of LGBT employees, but in this court decision, the court can only give a yes-or-no answer to the question of how Title VII is to be interpreted. The court will either say it has to be interpreted to include new categories and leave religious freedom concerns unaddressed, or it will leave Title VII alone and Congress can consider changes that accommodate varying interests.

William C. Duncan submitted an amicus brief in this case, available here.