Today, the U.S. Supreme Court issued its decision in three Title VII cases by a 6-3 majority. Title VII prohibits discrimination in employment “on the basis of sex,” and dates back to the Civil Rights Act of 1964.

Harris Funeral Homes has the delicate task of serving grieving families in the midst of loss. Tom Rost had that in mind when a male employee of six years decided to start living as a woman and insisted on dressing as one at work. Tom held the employee to the dress code he agreed to at time of hire, and was promptly sued. The U.S. Supreme Court’s ruling today dictates how Tom and other employers can run their businesses, regardless of their beliefs.

The Court ruled that an employer who fires an individual “merely for being gay or transgender violates Title VII.” Essentially, the Court is saying that the word “sex” in laws from the 1960’s also covers sexual orientation and gender identity.

While many aspects of the Court’s ruling are troubling, the most concerning is the fact the Court again has shown its inclination to make law, not interpret law.

Congress has struggled with this issue for years, not being able to muster the votes to change the law of the 1964 Congress. Instead of allowing the debate to play out in the branch designed to make law, six justices took it upon themselves to legislate from the bench.

Consider the following from the dissent written by Justice Alito with Justice Thomas agreeing:

“There is only one word for what the Court has done today: legislation.”

 “A more brazen abuse of our authority to interpret statutes is hard to recall.”

 “The question is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.”

Justice Alito further wrote about the potential consequences of the ruling including whether:

  • Religious institutions and even churches will be forced to hire individuals who do not comport with the institution’s religious beliefs.
  • A person…“may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time.”
  • A transgender individual has the right “to participate on a sports team or in an athletic competition previously reserved for members of one biological sex,” undermining the intent of Title IX of the Civil Rights Act to ensure women and girls equal opportunity in sports.
  • Educational institutions receiving financial assistance, like private faith-based colleges with students on federal loans, may be affected.
  • Colleges will not be allowed to have separate living facilities for the different sexes.

Our policy team will continue to analyze the decision to determine its impact on Arizona law and specifically on faith-based employers like churches, schools, and para-church ministry. The breadth of the Court’s decision remains to be determined.

At least, Justice Gorsuch did acknowledge that questions about whether religious liberty interferes with Title VII are “questions for future cases.” By June 30, we anticipate more decisions that directly touch on religious liberty and rights of conscience. We’ll be watching closely what happens next.

Center for Arizona Policy filed a friend-of-the-court amicus in the Harris case that was represented by our friends at Alliance Defending Freedom. Read ADF’s statement here.       

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