The US Supreme Court ruling in Bostock v. Clayton County, Georgia is not the last word on the conflict between LGBT rights and religious freedom rights. In fact, Bostock could be the first step in breaking the impasse.
The case will certainly have major implications for religious exercise. But contrary to initial reactions, this decision should not be read as a decision that dooms religious liberty in America, but rather as an inevitable step toward something Congress and most state legislatures have thus far been unable to do: crafting a compromise that balances LGBT rights and religious freedom.
Bostock v. Clayton County, Georgia involved a man named Gerald Bostock—by all accounts an exemplary worker with a decade on the job—who was fired for conduct “unbecoming” a government employee shortly after he had started participating in a gay softball league. The Supreme Court was asked to decide whether the 1964 federal law barring employment discrimination “on the basis of sex” protects people who are discriminated against because of sexual orientation and gender identity. And by a 6-3 margin, the court ruled that it does.
Social conservatives were distraught. Robert George described the majority opinion as “sophistical” and the position it endorsed “untenable.” “Hard to overstate the magnitude of this loss for religious conservatives,” added Rod Dreher. Denny Burk said the decision “eviscerated” religious liberty, while Andrew Walker called the opinion “devastating,” adding, “If you're a Christian higher ed institution taking federal monies, buckle up.”
These reactions, while understandable, are premature. Bostock, while a significant decision following 2015’s Obergefell v. Hodges, is limited in what it can tell us about the future of religious freedom. Its implications for future cases involving religious organizations and institutions are real, yes, but for people concerned about the future of religious liberty, there is reason for cautious optimism.
It should be noted, for one thing, that the majority opinion in the case was authored by Neil Gorsuch. His appointment to the Supreme Court was lauded by many of the same people criticizing his ruling now—and it’s possible they were right the first time.
Gorsuch ruled the way he did because of his commitment to the conservative legal philosophy called textualism. This is the philosophy famously embraced by the conservative justice Antonin Scalia. The philosophy says that judges ought not extrapolate principles from laws and rule based on these extrapolations. Nor should they try to imagine the intents of the many lawmakers who bargained and bartered their way to the passage of a bill. Those approaches leave too much leeway for creative interpretation and judicial activism. Judges should rather, according to Scalia and Gorsuch, restrict themselves to the plain, ordinary meaning of the text of the law. They should ask, “What do the words say?” and make limited rulings based on that.
David French notes that Gorsuch’s legal philosophy shaped the whole case. Bostock’s attorneys appeared to make their arguments expressly with Gorsuch in mind.
You can see how textualism works in Gorsuch’s opinion. He dedicates pages of analysis to interpreting the meaning of “sex” and “discrimination” when Title VII of the 1964 law was written. The analysis is cautious and relies on the dictionaries of the era to interpret the ordinary meaning of those terms at the time the statue was being drafted. Gorsuch concludes that “homosexuality and transgender status are inextricably bound up with sex,” as “sex” was understood in 1964, so Title VII necessarily protects sexual orientation and gender identity from employment discrimination.
While other conservative justices disagree with Gorsuch’s textualism in this case—Samuel Alito, notably, calls the decision “preposterous”—there is little reason for people who care about religious liberty to doubt Gorsuch is a legal ally. He has a record, after all, of applying textualism in religious freedom cases. Gorsuch’s concurring opinion in Masterpiece Cakeshop, defending a Christian baker’s right not to make a cake for a same-sex wedding, shows this. In the ruling, as Robert George has explained, he critiques a colleague’s understanding of what a wedding cake is and, importantly in that case, what it means. In doing so, Gorsuch demonstrates that he understands the crucial issues of conscience.
In the Bostock ruling, he writes: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” He explicitly says that religious liberty issues will likely come up for other employees in other cases and there will need to be other rulings.
Gorsuch also indicates his understanding of the issue in some subtle ways. He favorably cites the Hosanna-Tabor case, in which the court unanimously exempted ministers from employment discrimination laws. Gorsuch also calls the Religious Freedom Restoration Act a “super statute, displacing the normal operation of other federal laws,” suggesting that it protect religious liberty in the hypothetical cases worrying religious conservatives post-Bostock.
While defenders of religious freedom have reason to be more concerned after Bostock than before, there is more reason for optimism. Case after case in recent years—Hosanna-Tabor, Hobby Lobby, Holt, Trinity Lutheran, Masterpiece Cakeshop—have protected religious exercise. There is no reason to believe the court is poised to roll back protections for religious liberty. If anything, the appetite exists to expand them.
The controversy at the heart of Bostock has been foreshadowed for decades, intensifying in the years since the court’s landmark gay rights decisions. As a result, there have been efforts at all levels of government to balance LGBT rights with protections for religious freedom. Utah is often held as a standard for such a compromise, as a bipartisan bill of this sort was signed into law in 2015, just months before Obergefell.
At the federal level, however, these measures, commonly called Fairness for All, have stalled. Democrats appear to have consolidated around the Equality Act, which grants legal protections to LGBT Americans without any religious exemptions. At the same time, many religious conservatives do not support Fairness for All, saying any law protecting someone like Bostock from getting fired because of his sexual orientation is unreconcilable with religious liberty. And now, opponents of the Fairness for All proposals are citing Bostock to justify their opposition, saying that once sexual orientation and gender identity are protected, there is no guarantee that religious freedom protections will be maintained.
Given larger cultural trends favoring LGBT rights, recognizing sexual orientation and gender identity under Title VII of the Civil Rights Act may have been inevitable. But the court’s opinion here does not mean it is game over for religious freedom arguments in these disputes. It means that the debate rages on, most likely through the courts.
Despite some of the initial reactions, Bostock could conceivably be the first step in breaking the impasse. Those praising the court for its decision in Bostock will probably criticize related decisions in the future, and those upset today could very well be praising the Court in future cases involving religious freedom. While Fairness for All has not fared well in the legislative process, it is not difficult to see how the basic ideas of the proposal could be enacted via a series of judicial rulings, especially under the current composition of the court. Legal protections for LGBT Americans balanced with religious liberty exemptions may win the day after all.
Our pluralist society guarantees conflict and is dependent on compromise. While this process isn’t always comfortable, Christians should nevertheless come away from Bostock hopeful for the future. This does not deny the necessity of strategic engagement moving forward; such engagement is needed now more than ever. But our engagement must be paired with hope—not a naïve hope in a flawed and fallen political and legal system, but hope in him who has overcome the world.
Daniel Bennett is associate professor of political science at John Brown University. He is also assistant director of the Center for Faith and Flourishing, and is president of Christians in Political Science.
Speaking Out is Christianity Today ’s guest opinion column and (unlike an editorial) does not necessarily represent the opinion of the publication.
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