On Monday, June 15, the U.S. Supreme Court managed to do something Congress has tried to do for decades without success: It added the term sexual orientation and gender identity to the 1964 Civil Rights Act.

When Congress enacted the Civil Rights Act, the federal government officially repudiated racial discrimination in employment. Before that time, nothing in federal law prevented an employer from firing an employee or refusing to hire a potential employee solely because of that individual’s race. The law also prohibited discrimination because of the sex of an employee or applicant.

Now, the Supreme Court has issued a 6-3 decision, in Bostock v. Clayton County, that dealt with questions that were essentially unknown – perhaps inconceivable – at the time Congress passed its law: whether additional categories of sexual orientation and gender identity should also be included in the act. The majority concluded that they should.

In the past few decades, Congress has had multiple opportunities to amend the Civil Rights Act to add these new categories but so far has failed to do so. The most recent example of a bill to accomplish this result is the Equality Act, which passed the U.S. House of Representatives in May 2019 and is currently pending in the Senate.

Monday’s Supreme Court decision accomplishes the main thrust of the Equality Act without Congress doing anything. It did this by interpreting the original language of the 1964 law, which prohibited sex discrimination, to include sexual orientation and gender identity. A six-judge majority of the Supreme Court concluded that the plain language of the statute requires employers not to make hiring or firing decisions based – even in part – on an employee’s LGBT status.

Whatever the merits of this conclusion as a matter of policy, it is certainly contested as a legal matter. In a dissent (which some view as unfair and others view as a constitutional reality), Justice Samuel Alito strongly disagreed with the majority’s approach. He framed the question – using the more common approach to interpreting legal texts – as whether a reasonable person would have believed the term had that meaning in 1964.

Alito was forthright in his criticism: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

He notes that more than 100 federal statutes use phrases like “because of sex,” which suggests that the majority’s decision could have far-ranging consequences on many areas of the law. 

Because class rights walk the line of inclusion/exclusion, one of the rights negatively impacted is religious liberty. “As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion,” such as by “compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to com­municate an objectionable message.”

Alito’s dissent raises a significant point:

If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least some of them. In addition, Congress might have crafted special rules for some of the relevant statutes.

The dissent points out that a bill pending in a committee of the House of Representatives would have done just that by adding sexual orientation and gender identity to federal law but also including protections for religious liberty. This pending proposal, the Fairness for All Act (similar to the 2015 legislation in Utah Sutherland supported), would address some of the ramifications created by the majority’s decision, like the impact on religious employers and colleges. Specifically, the law makes provision for religious organizations to pursue their religious mission, including by requiring compliance with religious teachings by employees and those who use facilities.

The Civil Rights Act of 1964 has a narrow religious exemption, but this did not create major challenges since few, if any, religious groups believe racial classifications are essential to their religious mission. Longstanding definitions of marriage and sexual morality, by contrast, are central to the teachings of most of the world’s religions, so the inclusion of gay, lesbian and transgender status in the statute raises potential conflicts that did not exist in practice prior to the court’s decision.

Since the decision does not rely on constitutional interpretation, any implications of the decision can be addressed by Congress. A refined version of The Fairness for All Act is a path forward way to do that.

Even for those who feel the substance of the Supreme Court’s decision is welcome, the concerns raised by the dissenting opinions are surely valid for many in the faith-based community. It prompts a reminder that the legislative process provides the fairest, and ultimately most sustainable, way to enact significant changes. By design, it takes time, what may seem too long to some, but that process makes more likely the balancing of valid interests and lessens the possibility of alienating the “losers,” as happens in a zero-sum court decision.