Should Virginia employers be able to use their religious beliefs as an excuse to engage in LGBTQ discrimination against employees?
Of course not.
Employment discrimination laws should prohibit all employers from discriminating against their employees, regardless of the employer’s religious beliefs.
Nevertheless, some anti-LGBTQ Virginia employers are asking the courts to grant them a broad exemption from antidiscrimination laws. They want courts to allow them to discriminate against employees on the basis of sexual orientation or gender identity. These business owners claim that the “free exercise” of their religion gives them a license to discriminate.
Throughout this nation’s history, persecuted religious minorities have used the “free exercise” clause of the First Amendment as a shield to protect themselves from the prejudice of the majority. Powerful and well-funded conservative religious groups now want to use the “free exercise” clause on behalf of employers as a sword to cut through legal protections for LGBTQ workers in Virginia.
Discrimination on the Basis of Sexual Orientation and Gender Identity Is Illegal. For Now.
The Supreme Court recently ruled in Bostick v. Clayton County that employers violate Title VII when they discriminate against employees or job applicants on the basis of sexual orientation or gender identity. But Justice Neil Gorsuch’s opinion in that case left the door open for a future Supreme Court decision that would allow an exception for employers whose religious beliefs supposedly require them to discriminate against LGBTQ employees and applicants.
In July 2020, Virginia enacted the Virginia Values Act, which prohibits Virginia employers from discriminating against LGBTQ employees. But the Virginia Values Act is just as vulnerable to religious exceptions as is Title VII.
Employers who are eager to engage in LGBTQ discrimination actively seek a way around these laws and court decisions. They hope that the courts will allow them to use religion as an excuse to discriminate. Unfortunately, given the current makeup of the Supreme Court, those who seek an excuse to discriminate might have reason for optimism.
Anti-Choice and Anti-LGBTQ Legal Organizations Fight to Undermine Anti-Discrimination Laws.
In Loudoun County, Virginia, an anti-LGBTQ legal advocacy group recently filed a lawsuit challenging the Virginia Values Act. The group filed the lawsuit on behalf of nonprofit corporations that run churches, religious schools, and anti-choice pregnancy centers in Virginia.
The Southern Poverty Law Center says the group “works to develop ‘religious liberty’ legislation and case law that will allow the denial of goods and services to LGBTQ people on the basis of religion.
The religious corporations argue that their religious beliefs require them to discriminate against people based on their sexual orientation and their gender identity.
Although five conservative Supreme Court justices held otherwise in Burwell v. Hobby Lobby, it was never clear to me how a corporation (which is not a human being, last I checked) can have “religious beliefs” of its own. (Cue Mitt Romney saying “Corporations are people, my friend!).
Corporations Engaged in Commerce Are Not Exercising “Religious Beliefs.”
It is generally corporate entities–not the individuals who control the corporation–that directly employ workers. Those corporate entities are just fictional legal creations–they don’t go to church on Sundays and pray for the right to discriminate against LGBTQ individuals who might apply for a job with the corporation.
Every individual is entitled to their own religious beliefs–even to beliefs so repugnant that they require followers to discriminate against others on the basis of sexual orientation and gender identity.
Employment laws properly have no place in regulating what any individual chooses to believe.
But this country and the Commonwealth of Virginia cannot reasonably grant “licenses to discriminate” to corporate entities who seek to employ workers and engage in commerce among the general public.
It certainly makes sense to allow the Catholic church to discriminate on the basis of religion when hiring for certain positions. The Catholic church should be allowed to require that a person be a practicing Catholic in order to be hired to serve as a Catholic priest.
But no court should grant a religious exemption to antidiscrimination laws so that an employer can lawfully discriminate in accordance with his religion against applicants who are married to someone of another race or ethnicity, or against applicants who are not married at all. Nor should courts allow employers to use their purported religious beliefs to engage in anti-LGBTQ discrimination against employees or applicants for employment.