Depending on how the Supreme Court rules on cases involving LGBT issues, attorneys say places of worship and other religious non-profits could find themselves in court more often.
Justices heard arguments on Tuesday involving three LGBT workers who were fired. One is a former CASA volunteer coordinator, another is a homosexual man who worked as a skydiving instructor, and a third is a man who feels he is a woman and wanted to present himself as such while working as a funeral director.
At issue is whether "sexual orientation" and "gender identity" (SOGI) are covered by the word "sex" in the 1964 Civil Rights Act. The U.S. Supreme Court will have the final say, most likely in late spring or early summer 2020.
"We filed a friend-of-the-court brief in this case focusing on the implications that this case could have for religious freedom," says attorney Stephanie Taub of First Liberty Institute, a Texas-based religious liberty law firm.
"Churches and other non-profits [are] not categorically exempt from Title VII or from other federal employment discrimination law," Taub continues, "so there are some important protections given by the First Amendment for these ministries. But if the [Supreme] Court expands these protected classes, [churches and non-profits] could be drawn into court to have to defend themselves much more often."
The First Liberty attorney adds that "depending on what happens in this case, there could be a question about whether [religious organizations] are allowed to have faith-based standards of conduct when it comes to contested issues like issues of sexual conduct or gender expression."
Meanwhile, Emilie Kao – an attorney and director of the DeVos Center for Religion and Civil Society at The Heritage Foundation – says it's not the job of the high court to make law.
"We have separation of powers, which means that Congress makes the law and the courts interpret the law," says Kao. "Sexual orientation and gender identity are something that certainly nobody in 1964 thought the word 'sex' meant."
Various news outlets (here and here) and blogs (here) say justices appeared divided on the issues before the Court on Tuesday – particularly those argued in the funeral director case, according to Kao.
"It is a very controversial case, and so the questioning was very heated," Kao continues. "They went back and forth on several issues with both sides – but ultimately I think that the current court is conservative and they are not inclined to overstep the lane that the Court should be in. And by that I mean they are not inclined to overstep and do what Congress should do, which is make the laws."
Kao confides that she's "hopeful that justices will decide the right way and stay in their lane and continue to interpret 'sex' just according to its plain meaning."
Related article: What's at stake in Supreme Court's 'sex discrimination' case