Title VII and Sexual Orientation

In the 04-06-17 Briefing Dr. Mohler discusses the 7th Circuit Court of Appeals ruling “that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964” as a legal event – a matter of how the law as written should be interpreted. And he describes the decision in vaguely apocalyptic terms as “an unexpected bomb that goes off in the middle of our culture” whose “ramifications ... are absolutely massive.” But omitted from his analysis is any explicit mention of the MORALITY of what the court is finding to be illegal.

Very often in discussions about gay rights and religious freedom, Christians insist that the desire to discriminate on the basis of sexual orientation – to deny LGBT people service or housing or employment merely because of who they are – is the furthest thing from Christians’ minds. They merely desire the freedom to practice their religion and to abstain from behaviors that would violate their consciences. They would never ever mistreat people just because they were gay or lesbian, or treat them unfairly.

But this ruling is about exactly that – a lesbian’s claim that she was denied promotion and then employment because she was a lesbian. So I repeat the question I posed earlier, in response to the 4/05/17 Briefing:

“Quite apart from politics and legalisms, I’m curious to know whether Dr. Mohler believes their religion requires Christians to refuse to employ or sell to or rent to LGBT people. Is that a “religious liberty” they need? Should Christians rejoice in the defeat of laws which protect LGBT people from being fired or refused service or accommodations on the basis of their sexual orientation” as happened in North Carolina?

To that I’d now add, should Christians be upset when courts find that laws protect people from being fired or refused service or accommodations on the basis of their sexual orientation? Should Christians oppose passage of such laws? Or, on the contrary, out of sheer humanity and concern for human dignity, should they support them?

Turning to the legal questions surrounding this decision, Dr. Mohler takes the ruling to mean that discrimination on the basis of sexual orientation is “no different than” discrimination on the basis of sex, and concludes that this implies that sexual orientation, like biological sex, is “an immutable characteristic”, even though that is now disputed by many LGBT people themselves. But the ruling itself stated,

“The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.” ... Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”

So this is not about comparing sexual orientation to biological sex and saying they are somehow morally equivalent, and each separately deserving of protection from discrimination. It is about what discrimination on the basis of sex consists of. Here are two points made in the majority opinion:

1) The Supreme Court has already held that an employer who discriminated against women for behaving in too “masculine” a way – no makeup, no jewelry, no fashion sense – was guilty of sex discrimination. The test was a comparative one: “holding all other things constant and changing only her sex, [would the plaintiff] ... have been treated the same way?” In this case of a lesbian, the question became, if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, would her company have refused to promote her or fired her, as it did? If not, then such treatment constitutes discrimination on the basis of her sex.

2) If an employer discriminates against an employee because he or she is married to a person of a different race, courts have found that this violates Title VII, because it is discrimination on the basis of the employee’s race. Likewise, it is argued, if an employer discriminates against a woman because she has a female partner instead of a male partner, this is discrimination on the basis of her sex. Therefore, this ruling held, it violates Title VII, which prohibits sex discrimination.

Is this reasoning really so “astounding and revolutionary” as Dr. Mohler claimed? Is it a “bomb” thrown into our culture? Or is it a reasonable way of ensuring fair treatment in a diverse society?