Orthodox organizations joined a broad base of faith groups and religious liberty advocates in submitting briefs in what is likely to be one of the Supreme Court’s highest-profile cases of the coming term.
Four separate suits bundled together ask Justices to weigh in on whether existing civil rights laws governing discrimination in employment pertain to decisions made on the basis of moral objections to the stated identity of workers.
Religious groups have taken a particular interest in the cases, arguing that changing the previously understood boundaries of the law in question would create a parade of horribles, severely constricting their ability to hire employees consistent with their mission and beliefs.
“Federal statutes exempt religious organizations from a lot of civil rights laws, but there’s a real fear that if this law is re-interpreted, we don’t know what could come next, and there’s a real fear that the freedom our institutions have been given could become severely limited,” Mordechai Biser, Special Counsel to Agudath Israel of America, told Hamodia.
The Agudah was one of 11 groups, including Christian and Muslim groups, that signed on to a brief prepared chiefly by the Becket Fund for Religious Liberty.
The plaintiffs are several former employees who claim they should have been protected by Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating based on race, religion, national origin, or gender. While a slew of civil liberties organizations argue that the statute’s wording should be read in a way consistent with the “progressive” agenda, those on the other side of the issue say that leaving the question to courts will place religious organizations in the crosshairs.
“Only Congress has the power to amend Title VII,” said attorney Howard Slugh, who contributed to the brief and who serves as counsel for Jews for Religious Liberty, one of the co-signers. “If the courts redefine it, we will end up with litigation again and again, whereas if Congress addresses the question, it would be our hope that they would build in the appropriate protections for religious liberties as they have in the past in similar circumstances.”
As written, Title VII does contain several exemptions that allow religious organizations to hire based on being a member of the faith group in question and on adherence to the group’s principles. The brief, however, points to several potentially dicey situations, such as how courts would view teachers of secular subjects in a religious school, a financial officer for a house of worship, or employees at a religious institution that provides social services.
“The right of a religious organization to control the make-up of its workforce is fundamental to achieving its religious mission, promoting its religious beliefs, and being a true faith community,” reads the brief in part. “While the ministerial exception and Title VII’s existing religious exemption would provide some defense … some lower courts already give cramped interpretations to those protections, denying their application to employees and employment practices that are crucial to a religious organization’s autonomy and mission … Resolving these conflicts will require years of wrenching litigation. Many religious organizations lack the financial and institutional fortitude to weather such battles of attrition.”
Joining the long list of groups supporting a status quo reading of Title VII is a brief by the Trump Administration submitted by the Solicitor General, Noel Francisco, who will likely be one of those to argue the case on October 23.