The U.S. Supreme Court’s decision last month in Bostock v. Clayton County gave advocates for LGBTQ rights a reason other than Pride to celebrate. In a 6-3 decision written by President Donald Trump’s first Supreme Court nominee, Neil Gorsuch, the court held that “an employer who fires an individual merely for being gay or transgender violates Title VII.” Gay and transgender people can now sue under Title VII of the Civil Rights Act if they suffer adverse employment actions based on their sexual orientation or gender identity.
Much of the commentary after the decision followed a familiar script: religious conservatives lamented that Republican-appointed judges had yet again betrayed the cause; progressives welcomed a rare Trump-era victory; major corporations signaled their approval. Reactions in the Catholic press were similarly unsurprising, and sometimes seemed to be not only about the legal merits of the majority opinion, but also a referendum on Church teachings about sexuality and gender.
Despite all this, the U.S. Conference of Catholic Bishops’s involvement in Bostock hasn’t received enough close attention. The legal briefing submitted by the USCCB in Bostock, and the specific arguments it put forward, have not been seen for what they are—perhaps because commentators assume that, for better or worse, the bishops simply were applying Church teaching to a matter of public controversy. That’s not what really happened. When read carefully, the USCCB’s brief in the Bostock case proves to be only the most recent example of Catholic leaders setting aside the Church’s moral theology and pastoral prerogatives for the sake of a “win” in the culture wars.
The precise issue that came before the U.S. Supreme Court in the consolidated cases Bostock v. Clayton County and Altitude Express Inc. v. Zarda deserves clarification at the outset. Both involved gay men whose sexuality became clear to their employers. Both men were terminated from their places of employment—one from his job as a county child-welfare services coordinator, the other from working as a skydiving instructor. Both claimed that they were terminated because of their sexual orientation, in violation of Title VII’s prohibition against sex discrimination. The court had to answer whether “sexual orientation” falls within the meaning of “sex” in Title VII, and thus whether the plaintiffs could allege that they suffered sex discrimination.
The USCCB brief supports the position of the employers, arguing that “sexual orientation” is not included within Title VII’s meaning of “sex,” but that’s not its main concern. The majority of the brief (eleven of its fourteen pages) focuses on the ways in which allowing gay and lesbian persons to bring claims of sex discrimination to court could create conflicts for religious employers and employees. But to make that case, the bishops let one interpretation of contemporary jurisprudence dictate the terms of their advocacy of Catholic theology.
Essential to the USCCB brief is jettisoning the distinction between inclinations and actions. This is a distinction fundamental to Catholic moral theology. But the brief only mentions it in passing:
In the view of many faith traditions and religious believers, there is a difference between an inclination toward homosexual conduct, which they do not regard as per se immoral, and homosexual conduct, which they do. Though the distinction between inclination and conduct is also ubiquitous in our civil legal tradition, this Court has hesitated to embrace it in this context.
In light of this hesitation, it seems likely that if this Court were to construe “sex” to include sexual orientation, it will then construe “orientation” to include conduct. That in turn will create innumerable conflicts for employers, especially religious employers that, as we describe in more detail below, wish to hire and retain employees who agree with and live out the religious commitments animating the employer’s mission and work.
It’s easy to miss what is going on in these two paragraphs. Here, the USCCB waves away the distinction between “homosexual inclinations” and “homosexual conduct,” and capitulates to the position it believes the court will “likely” hold. Rather than defend their own moral theology, the bishops choose to speculate about the trouble that barring discrimination on the basis of sexual orientation might make for them in future cases.
The only other mention of the distinction between inclinations and actions is buried in a footnote, briefly referencing the USCCB’s guidelines for the pastoral care of homosexual persons. But such care does not seem a pressing concern in the brief: the Catechism’s teachings on discrimination are passed over in silence. Paragraph 2358 of the Catechism states that, with regard to persons with deep-seated homosexual tendencies, “every sign of unjust discrimination in their regard should be avoided.” Not only is unjust discrimination condemned, but even signs of such discrimination.
This omission helps explain the brief’s failure to muster even a half-hearted objection to firing someone simply because they are gay, even if they are celibate. How could it? The moral theory adopted by the brief, or at least taken to be acceptable by it, elides the difference between someone who wants to do a certain act and someone who actually does it. The brief reserves the right to fire a person on the grounds of orientation. To make sure that a teacher in a same-sex marriage can be fired, the bishops are willing to argue that they should be able to fire a gay teacher who lives exactly as they’ve instructed, often at great cost.
Such a position throws into doubt claims by Church leaders that they don’t object to homosexual persons, but only to homosexual activity. These doubts only grow when one notices that homosexual persons make no appearance in the brief. Though the terms “homosexual relationships,” “homosexual conduct,” “homosexual acts,” “homosexual inclination,” “homosexual tendency,” and “homosexual conduct and marriage” appear seventeen times, the term “homosexual person” is nowhere to be found. “Gay” can only be found in a single footnote that references another case. This all leaves gay Catholics questioning what Church leaders really believe about them.
The USCCB brief implicitly argues that unjust discrimination based on orientation should be protected in order to make sure that Catholic institutions are not forced to employ personnel who reject Church teaching—an argument presented as an appeal to religious liberty. The cosigners of the amicus brief (which was prepared by the USCCB and cosigned by a number of other religious organizations) frame their interest in the case largely around religious liberty concerns: “The amici are national religious organizations that share the conviction that Title VII is not fairly read to address sexual orientation, and that such a reading would create serious burdens on religious liberty, speech, association, and other constitutional and statutory values.” While Bostock does raise real concerns about religious liberty, the bishops’s use of such arguments in the recent past are instructive to examine.
Appeals to religious liberty have also been made in clergy sex-abuse cases, such as a case settled in 2006 involving the Diocese of Jackson, Mississippi. The USCCB signed on to an amicus brief in defense of the diocese, which argues, like the Bostock brief (and also the USCCB brief in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel), that because of the Constitution’s protection of religious liberty, religious organizations should not be subject to the same civil accountability as other organizations. It claims that the diocese does not have more control over priests than secular employers; that the diocese has no fiduciary duty to the abuse victims; and that because religious organizations are so diverse and unique compared to secular organizations, they should not be liable for the negligent assignment, supervision, and retention of abuser priests.
The Jackson brief might appear to make an argument in favor of religious liberty—that religious organizations should not be obligated to behave in ways civil society requires of other organizations for the common good. But that really is an argument for religious license, not liberty. The Catechism makes clear that genuine freedom means something quite different: “There is no true freedom except in the service of what is good and just. The choice to disobey and do evil is an abuse of freedom and leads to ‘the slavery of sin.’” The Catholic vision of “religious liberty” is not the ability of religious organizations and leaders to do as they wish, but rather the ability and choice to do as they ought. The bishops readily promote this conception of freedom in the realm of sexual morality but fail to do so when applied to their own actions.
As with clergy sex-abuse cases, Bostock might be thought of as being about accountability for how people are treated. The USCCB wants to minimize accountability for employers, but a more Catholic treatment of religious liberty—one mindful of how Catholics should understand freedom—would lead them instead to recognize the benefits of the ruling in favor of the Bostock and Clayton County plaintiffs: it provides employment protections for those who might be subject to unjust discrimination on the basis of their sexual orientation. This, after all, affirms a key aspect of the Church’s moral theology.
Even if religious liberty is properly understood, it doesn’t settle questions about all the ways the Bostock ruling could play out in the future. The decision could possibly bring challenges to the Church and other organizations that reject discrimination on the basis of sexual orientation but not on the basis of sexual activity. That is why, it might be claimed, the USCCB chose to downplay the distinction between inclination and action so fundamental to their theology. They were trying to avoid a slippery slope—such a distinction would be taken as a concession, and the government soon would be intruding upon the ability of Catholic persons and institutions to fully live out and promote their beliefs. Some slopes are slippery, but such worries too often are used to avoid the actual question at hand.
The question for the USCCB brief was this: Should Catholic organizations be able to fire employees on the basis of sexual orientation? The brief replies, “yes,” and gets to that answer by reframing the question as: Should Catholic organizations be able to terminate opponents of Church teaching? But the original question still needs to be answered, and the Catechism suggests the answer should be “no.” If the USCCB had replied that way, it would have been fair for them to raise questions about what “sexual orientation” might mean—especially if a protection based on “orientation” that includes sexual behavior would trump religious liberty claims. But the USCCB can seek clarification if and when we get to that question, rather than use it to ignore the question at hand.
Justice Gorsuch explicitly acknowledges religious-liberty concerns in his majority opinion, citing both the Religious Freedom Restoration Act and the Hosanna-Tabor decision, under which “the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’” The “ministerial exception” has been treated broadly in case law to apply to administrators, teachers, and those working in ministry. This exception was robustly affirmed in this week’s Morrissey-Berru decision, which even upheld a religious institution’s right to terminate employees because they are disabled or elderly. The USCCB framed the decision as a recognition of “the right of the Church to choose its own leaders.” As recently as the 2018 decision in Penn v. New York Methodist Hospital, this right was deemed expansive enough to also permit religious institutions to fire ministers because of their race.
Whatever the long-term fallout from the court’s decision, the immediate consequences of the USCCB’s involvement are already clear: those tasked with the teaching office of the Church cast aside vulnerable gay persons, undermined the coherence of Catholic moral theology, and put forward a counterfeit version of religious liberty. We should ask, along with Russell Kirk, “Might not ‘sharing the fate of the discarded’ be preferable to sharing the fate of the victors, in a contest of this description, where the sacrifices seem to exceed the prizes?” As it turns out, the USCCB can’t even claim the prize of victory that they hoped would justify sacrificing the coherence of the Church’s moral theology—and the integrity of our witness.
