The Supreme Court has held 6-3 that "discrimination based on homosexuality or transgender status necessarily entails [unlawful] discrimination based on sex" under Title VII of the Civil Rights Act of 1964. Trump appointee Neil Gorsuch wrote that this was based on the language within Title VII that forbids discrimination based on "sex." Gorsuch applied the logic that these forms of discrimination necessarily implicate sex and are therefore unlawful. Gorsuch's logic is this: if a man (A) and a woman (B) are both attracted to the same man (C), an employer cannot treat person A differently from person B. So if A could be attracted to C, so could B – and the only difference between A and B is sex. Drawing that distinction, Gorsuch writes, would violate Title VII. Bostock v. Clayton County and Harris Funeral Homes v. EEOC. Similarly, discriminating against a transgender individual based on appearance also violates Title VII.
Before the Bostock decision, issues involving LGBT rights against discrimination were primarily addressed at the state level, but Bostock recognizes rights on a national level. While Gorsuch claims that this determination arises completely from within the text, the dissent argued that Congress did not intend that Title VII should cover LGBT people when Title VII was passed, and therefore the Court should not apply it retroactively even if it fits within the text of the statute as written. Gorsuch's logic may appear novel, since the topic had not been addressed this way previously, and it may have reaching implications when it comes to resolving forms of sex-based discrimination including school sports, restrooms, etc., which will not be addressed at the national level, instead of the state level.
Faith-based organizations that hold to beliefs that prohibit same-sex marriage have raised some concerns about whether this would require them to change their hiring policies. However, section 702(a) of the Civil Rights Act states that Title VII "shall not apply" to religious organizations when it comes to employment. See Church of Jesus Christ of Latter-Day Saints v. Amos (1987).  Religious employers could also be protected under the Religious Freedom Restoration Act, as Gorsuch mentions, as well as the ministerial exception. See Hosanna-Tabor Evangelical Lutheran Church and School v EEOC (2012). Further, the Court is presently revisiting its holding in Employment Division v. Smith (1990) that severely limited the free exercise clause in Fulton v. City of Philadelphia.

Fulton v. City of Philadelphia, pending hearing date, might well be the most important religion case currently on the docket because it could restore the Free Exercise Clause. The question before the Supreme Court is whether somebody asserting that their free exercise rights of religion must prove that the government allowed the same conduct by somebody else who held different religious beliefs, or whether the court must consider other evidence that a law is not neutral and generally applicable. In this case, the City of Philadelphia had a rule that any organization that providers foster care services must agree beforehand that it will not discriminate against foster families based on LGBT status. Catholic Social Services (CSS), which has operated in Philadelphia since 1917, refused to write an endorsement that would contradict the church's teachings on marriage. CSS has asserted that the city has, in turn, attempted to coerce CSS to change its religious practices as a condition of remaining operational. The Supreme Court, with Justices Thomas, Alito, and Gorsuch dissenting, refused to issue an injunction allowing CSS to operate while the case was in litigation, so the results are not guaranteed.

On May 30, 2020, the Supreme Court in a narrow 5-4 decision declined to provide California churches injunctive relief from Governor Newsom's limitations on crowds at church services in South Bay United Pentecostal Church v. Newsom. The Court also refused to grant an injunction in a case brought by two Chicago-area churches. While it would have been interesting to see what the Supreme Court would say about the rights of churches to meet, by the time they reached the court, authorities in California and Illinois had already lifted or reduced many of the restrictions – with California now allowing 25% of capacity or 100 people (whichever is smaller). Illinois' limits expired on May 29. The California church continued to argue that the new regulation was not reasonable since the church regularly had 600 people in attendance. The Supreme Court noted that the affected churches could raise the issues again "if circumstances warrant."

Justice Roberts in his ruling on the California case stated that California's order was designed to "address this extraordinary health emergency" and that churches were being treated like plays, concerts, and sporting events and that they were not analogous to store openings because of the extended time in which church members meet. Justice Thomas, Gorsuch, and Kavanaugh dissented.


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