Background
In the summary of its Final Rule, OFCCP outlines the historical background that gave rise to the need to issue a rule clarifying the accommodations available to federal Contractors which are also “religious organizations.” Specifically, while Title VII of the 1964 Civil Rights Act made certain kinds of discriminatory decisions in employment unlawful, it also protected employees against religious discrimination. 42 U.S.C. §§ 2000e-1(a), 2000e-2(e)(2). This was subsequently expanded in 1972. 42 U.S.C. § 2000e(j). Then along came the Religious Freedom Restoration Act of 1993 providing religious organizations protection against religious discrimination, in addition to the First Amendment right to the exercise of religious beliefs free from federal government interference or burden on those beliefs.
Note: The Courts have not yet interpreted the Constitutional protection to practice the religion of one’s choice when in conflict with statutorily protected rights against unlawful employment discrimination. There are two reasons for this:
First, when hearing constitutional claims, the federal courts always try to avoid interpreting the United States Constitution to resolve a matter if they may dispose of the case on the basis of a lesser statutory, regulatory or common law ground. The federal courts will thus interpret the RFRA first before proceeding to resolve a dispute by reference to rights which the U.S. Constitution allegedly protects. Accordingly, before the SCOTUS would hear and decide a case bottomed on a claim of religious freedom the U.S. Constitution allegedly protects in collision with a claim of statutory protection of sexual orientation or gender identity, the federal courts would FIRST have to decide the collision of statutory rights. So, to reach the employer’s/federal contractor’s Constitutional defenses, the Court would have to first rule in favor of and exalt a Title VII (or Executive Order 11246) Applicant’s or Employee’s sexual orientation and/or gender identity claim above that of the religious organization’s RFRA defense. If the RFRA defense faltered and fell, the federal Court would THEN be forced to address the religious organization’s First Amendment constitutional claim (i.e., that the federal government was interfering with the religious organization’s free exercise of religion protected through what scholars of the Constitution describe as the “free exercise clause.” The “free exercise clause” states very bluntly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… .”).
Second, protection of LGBTQ rights protected under Title VII is still too new to have allowed enough time to incubate the collision of rights case which would need to find its way to the SCOTUS. (The SCOTUS decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) which found protection under Title VII for sexual orientation and gender identity, was not quite yet six months ago: i.e., decided June 15, 2020). And, the SCOTUS usually allows constitutional claims cases to percolate for a while in the lower federal appellate courts and allow, if it occurs, “a split” in the decisions of the federal appellate circuit courts so as to warrant the need for SCOTUS’ attention to the matter to settle the uncertainty resulting from any particular federal circuit court decision.
Accordingly, do not look for a SCOTUS decision any year soon resolving the collision of the free exercise clause with Title VII’s protection of LGBT rights. A decade or more could easily go by before the right series of cases could arise in the lower federal courts, the circuit courts then had a chance to split their thinking and decisions, and the SCOTUS then had a chance to choose to take a case bringing a collision of rights case before it for resolution. Then, and only then, would SCOTUS bring this collision of claimed rights to a rapid boil for resolution. Rather, the SCOTUS will almost certainly let this collision of rights case simmer while society wrestles further with the issue.
Keep in the back of your mind, too, that LGBTQ advocates will also vigorously and consciously seek to RETARD the advent or progress of these particular collision of rights cases in the federal courts to avoid giving this particular SCOTUS a chance to hear such a case. The perception in the LGBTQ community is that it is more prudent to delay a decision in a First Amendment vs statutory rights face-off case until a Democrat President has had an opportunity to appoint a few SCOTUS Justices to change the current make-up of the sitting SCOTUS. The LGBTQ community view is, right or wrong, that the current SCOTUS would be more inclined to uphold religious exercise rights over the statutory protections against otherwise unlawful discrimination based on sexual orientation and gender identity.
A final challenge the law imposes upon LGBTQ advocates is that constitutional law has for over two centuries been ingrained with the notion that Constitutional claims pre-empt and trump lesser protections such as those afforded by statute or regulation, or via the common law. Constitutional protections exist on a higher plane of importance and acceptance across all fields of statutory competition.