There has been some immediate fallout from the Supreme Court’s gay marriage decision in Obergefell v. Hodges. The decision has become a lightning rod for several Republican candidates who have denounced the decision on religious grounds. Some, such as Ben Carson, have suggested that Congress pass a law protecting people’s religious views. Of course, there are already several laws protecting people’s religious views, the First Amendment and the Religious Freedom Restoration Act of 1993 to name a few, but I digress.
The bigger issue and one everyone seems to be forgetting is that these types of “religious belief” arguments to justify discrimination have already been rejected by the Supreme Court. The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. seems to have opened the door for employers to argue that their religious beliefs conflict with certain legal requirements (in that case providing insurance coverage for contraception, but easily analogized to gay marriage). However, in Hobby Lobby, Justice Alito specifically noted that religious beliefs could not be used to justify discrimination:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
It is true that federal law does not explicitly protect sexual orientation. However, as we have reported the EEOC has become increasingly focused on same-sex harassment and sexual orientation discrimination as a form of gender discrimination. Further, many state and local anti-discrimination laws do define sexual orientation as a protected class.
This can be a confusing area for employers since Title VII and many state and local laws require that an employer accommodate a sincerely-held religious belief. Quite simply, employers cannot justify an employee’s discrimination against gay people because homosexuality is against that employee’s religious beliefs. Employees must still comply with anti-discrimination laws even if they have a religious objection to homosexuality.