The Volokh Conspiracy - More on Sexual Orientation Discrimination and Other Forms of Discrimination:

The recent posts have led me to want to post some more about the relationship of sexual orientation discrimination to other forms of discrimination. I'll probably have a post directly focused on this next week. But in the meantime, I thought I'd float a related legal doctrinal argument that I've been thinking about for a while.

Federal antidiscrimination law, as we know, generally bans employment discriminate based on race, color, national origin, sex, and religion. (I say generally because there are some exceptions, but let's set them aside now.) It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's less than half the states.

The law does, however, go beyond simply banning religious discrimination — it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear — again, unless the exemption would cause the employer undue hardship. (Where's the sexual orientation discrimination connection you ask? Hold on, we're getting there.)

This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases — where no undue burden on the employer can be shown — to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.)

What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled. (Finally, though it's not necessary for my argument, note that many courts have held that deeply held secular conscientious beliefs are treated the same as religious beliefs.)

So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him (Warren believes that he was born homosexual, and thinks that this indicates what God wants him to do), and important as a means of strengthening the sacred marriage relationship. I am not sure of this, but I am told that some religions — such as orthodox Judaism — do treat sex within traditional marriage as having religious significance, and being an implementation of God's will. Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance.

Ed Employer has a general policy of firing or not hiring people who engage in homosexual behavior. That policy doesn't itself violate federal antidiscrimination law, and the state in which Ed's business is located doesn't ban such policies, either. But Warren, whom Ed is threatening to fire because Warren engages in homosexual behavior, claims a right to religious accommodation: Ed may not fire me for what is to me a religious practice — unless the practice imposes an undue hardship on him which it doesn't — just as he may not fire orthodox Jews for violating a no-headgear policy, Santerians for violating a no-killing-animals policy, Catholics for violating a no-drinking-alcohol-even-off-the-job policy, and so on.

Would Warren have a viable federal Civil Rights Act claim? I would think so, and if I'm right then the Civil Rights Act already prohibits discrimination based on employees' homosexual behavior, when the employees' behavior is religiously motivated (again, unless undue hardship on the employer is shown, which seems unlikely). The same would apply if the employee doesn't belong to an organized religious group, but can sincerely assert that his behavior is motivated by his understanding of God's will. And it would probably apply even if the employee says he's an atheist or an agnostic, but believes that sex with his life partner is part of his conscientious obligations.

Now this is well short of a flat ban on sexual orientation discrimination. Among other things, I suspect that many people can't claim a religious motivation for their sexual behavior, though some people can, especially if the behavior is part of a committed partnership (though the "committed partnership" limitation reflects just my guess of when people have such sincere beliefs that sex isn't only pleasant but religiously obligatory or at least religiously meaningful, and not any categorical legal distinction).

On the other hand, I suspect that this theory provides considerably more federal protection against discrimination based on people's homosexual behavior than most people would think exists. In particular, I suspect that many fans of religious accommodation law (including especially those who have urged that it be broadened, by lifting the "undue hardship" threshold above its rather low current level) would balk at this application of that law. Yet unless I'm mistaken, the legal argument here is quite sound. What do others think about it?

(One note: I'm using "sexual orientation discrimination" above interchangeably with "discrimination based on a person's sexual behavior," because that's what I suspect is usually involved in discrimination against homosexuals, and because that most crisply implicates the religious accommodation argument I describe above. If an employer is genuinely firing someone not because of his sexual behavior, but because of his orientation, in the sense of his sexual preference even in the absence of any behavior, the legal argument becomes somewhat more complex, since religious accommodation law protects religious behavior and not pure orientation. But the post is already long enough, so let me set aside that complexity for now, and deal with what I think is the more common scenario, and is at least a common scenario — an employer's firing an employee for the employee's sexual behavior, not just for the employee's preference that has never manifested itself into homosexual behavior.)

UPDATES: (1) Some commenters suggested that the claim I describe should be a loser because no religions actually endorse it. Let me stress again: Title VII has been interpreted as protecting (subject to the undue hardship constraint) religious conduct regardless of whether it's endorsed by an organized religious group. If someone has a sincere religious belief, it doesn't matter that the belief is shared by only a few (or even by no) other people. As a practical matter, I suspect that it's easier to persuade judges and jurors of the sincerity of a religious belief if the belief is familiar, and if you belong to an organized group that endorses this belief. But judges and jurors may be persuaded of your sincerity even if your belief is idiosyncratic (and in fact many people sincerely hold religious beliefs that differ from those of the religious denomination to which they ostensibly belong).

For an example of the kind of religious reasoning that some might engage in, see this item by Episcopalian minister Robert Warren Cromey:

I believe that same sex couples enter marriage and holy matrimony when they "enter into a life-long union, make their vows before God and the Church, and receive the grace and blessing of God to help them fulfill their vows." ...

Paul's words are that marriage is the sign of the mystical union between Christ and His church. The personal and sexual intimacy between the couples speaks of a deep connection, unity and bonding. That intimacy is a sign of our oneness with God and all creatures. The exhilaration of sexual and orgasmic union reflects the creative, intimate, and explosive character of divine energy available to all human beings. That intimacy happens to same sex couples as well as opposite sex couples. It is not dependent on procreation. It is dependent on robust sexual connection, trust, love and joy....

If someone sincerely believes this, and therefore concludes that God wants him to have sex with his same-sex life partner, and refusing to do that would be against God's will, then it seems to me that the religious accommodation argument I made above fully applies.

(2) Some commenters asked what would happen if the employer's own religious beliefs mandate discrimination against gays, but the employee's religious beliefs mandate engaging in gay sex with the employee's life partner. The answer turns out to be complex, since the rules for employees' religious accommodations from workplace rules don't mirror those for employers' (and others') religious exemptions from statutes, but let me just sketch the outline.

(a) Federal laws, including Title VII, are subject to the federal Religious Freedom Restoration Act (RFRA), which presumptively entitles people whose conduct is substantially burdened by a generally applicable federal statute to a religious exemption. If the law requires you to do something that your religion forbids, or forbids something that your religion requires, that's a substantial burden. But the presumption is rebuttable if there's a compelling government interest underlying the law, and if applying the law to the objector (notwithstanding his objection) is the least restrictive means of serving the interest. The question would then generally end up being whether requiring religious accommodations in such cases serves a compelling government interest (presumably one in protecting employees' ability to practice their religions); I suspect that most courts would say "yes," but it's not 100% guaranteed.

(b) Some states (about half) have similar state RFRAs that apply to state laws, or state religious freedom constitutional provisions that have been interpreted to presumptively mandate religious exemptions. If my hypothetical Warren Worker sues under a state employment discrimination law that requires religious accommodation, the analysis would then be the same as in (a).

(c) In other states, if neither a state RFRA nor a state constitutional accommodation requirement is available, the employer has no entitlement to a religious accommodation (unless he can somehow argue that the "undue hardship" requirement should be interpreted to cover substantial burdens on his religious practice). If the state's employment discrimination law requires religious accommodation, and Warren Worker sues under such a state law, then the employer has no religious accommodation claim vis-a-vis the law, but Warren has a claim vis-a-vis the employer.

(d0 Finally, all this applies only if the employer feels a religious motivation (or, depending on how the law is interpreted, a religious compulsion) to discriminate based on sexual orientation. For some employers, this may be present; for others, this may not be. (For instance, even some employers who think gay sex is wrong, and who therefore refuse to employ gays, may not be acting out of a sense of religious duty. They may think it would be religiously fine to ignore the employees' homosexuality, but might choose to discriminate against the employees nonetheless.)

(3) For some reason, I erroneously claimed that only about half the states currently ban sexual orientation discrimination; I meant to say less than half, and I have no idea why I misstated the matter. Thanks to commenter rmthunter for pointing out the error.

	[Eugene Volokh, June 17, 2006 at 4:40pm] Trackbacks More on Sexual Orientation Discrimination and Other Forms of Discrimination: The recent posts have led me to want to post some more about the relationship of sexual orientation discrimination to other forms of discrimination. I'll probably have a post directly focused on this next week. But in the meantime, I thought I'd float a related legal doctrinal argument that I've been thinking about for a while. Federal antidiscrimination law, as we know, generally bans employment discriminate based on race, color, national origin, sex, and religion. (I say generally because there are some exceptions, but let's set them aside now.) It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's less than half the states. The law does, however, go beyond simply banning religious discrimination — it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear — again, unless the exemption would cause the employer undue hardship. (Where's the sexual orientation discrimination connection you ask? Hold on, we're getting there.) This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases — where no undue burden on the employer can be shown — to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.) What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled. (Finally, though it's not necessary for my argument, note that many courts have held that deeply held secular conscientious beliefs are treated the same as religious beliefs.) So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him (Warren believes that he was born homosexual, and thinks that this indicates what God wants him to do), and important as a means of strengthening the sacred marriage relationship. I am not sure of this, but I am told that some religions — such as orthodox Judaism — do treat sex within traditional marriage as having religious significance, and being an implementation of God's will. Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance. Ed Employer has a general policy of firing or not hiring people who engage in homosexual behavior. That policy doesn't itself violate federal antidiscrimination law, and the state in which Ed's business is located doesn't ban such policies, either. But Warren, whom Ed is threatening to fire because Warren engages in homosexual behavior, claims a right to religious accommodation: Ed may not fire me for what is to me a religious practice — unless the practice imposes an undue hardship on him which it doesn't — just as he may not fire orthodox Jews for violating a no-headgear policy, Santerians for violating a no-killing-animals policy, Catholics for violating a no-drinking-alcohol-even-off-the-job policy, and so on. Would Warren have a viable federal Civil Rights Act claim? I would think so, and if I'm right then the Civil Rights Act already prohibits discrimination based on employees' homosexual behavior, when the employees' behavior is religiously motivated (again, unless undue hardship on the employer is shown, which seems unlikely). The same would apply if the employee doesn't belong to an organized religious group, but can sincerely assert that his behavior is motivated by his understanding of God's will. And it would probably apply even if the employee says he's an atheist or an agnostic, but believes that sex with his life partner is part of his conscientious obligations. Now this is well short of a flat ban on sexual orientation discrimination. Among other things, I suspect that many people can't claim a religious motivation for their sexual behavior, though some people can, especially if the behavior is part of a committed partnership (though the "committed partnership" limitation reflects just my guess of when people have such sincere beliefs that sex isn't only pleasant but religiously obligatory or at least religiously meaningful, and not any categorical legal distinction). On the other hand, I suspect that this theory provides considerably more federal protection against discrimination based on people's homosexual behavior than most people would think exists. In particular, I suspect that many fans of religious accommodation law (including especially those who have urged that it be broadened, by lifting the "undue hardship" threshold above its rather low current level) would balk at this application of that law. Yet unless I'm mistaken, the legal argument here is quite sound. What do others think about it? (One note: I'm using "sexual orientation discrimination" above interchangeably with "discrimination based on a person's sexual behavior," because that's what I suspect is usually involved in discrimination against homosexuals, and because that most crisply implicates the religious accommodation argument I describe above. If an employer is genuinely firing someone not because of his sexual behavior, but because of his orientation, in the sense of his sexual preference even in the absence of any behavior, the legal argument becomes somewhat more complex, since religious accommodation law protects religious behavior and not pure orientation. But the post is already long enough, so let me set aside that complexity for now, and deal with what I think is the more common scenario, and is at least a common scenario — an employer's firing an employee for the employee's sexual behavior, not just for the employee's preference that has never manifested itself into homosexual behavior.) UPDATES: (1) Some commenters suggested that the claim I describe should be a loser because no religions actually endorse it. Let me stress again: Title VII has been interpreted as protecting (subject to the undue hardship constraint) religious conduct regardless of whether it's endorsed by an organized religious group. If someone has a sincere religious belief, it doesn't matter that the belief is shared by only a few (or even by no) other people. As a practical matter, I suspect that it's easier to persuade judges and jurors of the sincerity of a religious belief if the belief is familiar, and if you belong to an organized group that endorses this belief. But judges and jurors may be persuaded of your sincerity even if your belief is idiosyncratic (and in fact many people sincerely hold religious beliefs that differ from those of the religious denomination to which they ostensibly belong). For an example of the kind of religious reasoning that some might engage in, see this item by Episcopalian minister Robert Warren Cromey: I believe that same sex couples enter marriage and holy matrimony when they "enter into a life-long union, make their vows before God and the Church, and receive the grace and blessing of God to help them fulfill their vows." ... Paul's words are that marriage is the sign of the mystical union between Christ and His church. The personal and sexual intimacy between the couples speaks of a deep connection, unity and bonding. That intimacy is a sign of our oneness with God and all creatures. The exhilaration of sexual and orgasmic union reflects the creative, intimate, and explosive character of divine energy available to all human beings. That intimacy happens to same sex couples as well as opposite sex couples. It is not dependent on procreation. It is dependent on robust sexual connection, trust, love and joy.... If someone sincerely believes this, and therefore concludes that God wants him to have sex with his same-sex life partner, and refusing to do that would be against God's will, then it seems to me that the religious accommodation argument I made above fully applies. (2) Some commenters asked what would happen if the employer's own religious beliefs mandate discrimination against gays, but the employee's religious beliefs mandate engaging in gay sex with the employee's life partner. The answer turns out to be complex, since the rules for employees' religious accommodations from workplace rules don't mirror those for employers' (and others') religious exemptions from statutes, but let me just sketch the outline. (a) Federal laws, including Title VII, are subject to the federal Religious Freedom Restoration Act (RFRA), which presumptively entitles people whose conduct is substantially burdened by a generally applicable federal statute to a religious exemption. If the law requires you to do something that your religion forbids, or forbids something that your religion requires, that's a substantial burden. But the presumption is rebuttable if there's a compelling government interest underlying the law, and if applying the law to the objector (notwithstanding his objection) is the least restrictive means of serving the interest. The question would then generally end up being whether requiring religious accommodations in such cases serves a compelling government interest (presumably one in protecting employees' ability to practice their religions); I suspect that most courts would say "yes," but it's not 100% guaranteed. (b) Some states (about half) have similar state RFRAs that apply to state laws, or state religious freedom constitutional provisions that have been interpreted to presumptively mandate religious exemptions. If my hypothetical Warren Worker sues under a state employment discrimination law that requires religious accommodation, the analysis would then be the same as in (a). (c) In other states, if neither a state RFRA nor a state constitutional accommodation requirement is available, the employer has no entitlement to a religious accommodation (unless he can somehow argue that the "undue hardship" requirement should be interpreted to cover substantial burdens on his religious practice). If the state's employment discrimination law requires religious accommodation, and Warren Worker sues under such a state law, then the employer has no religious accommodation claim vis-a-vis the law, but Warren has a claim vis-a-vis the employer. (d0 Finally, all this applies only if the employer feels a religious motivation (or, depending on how the law is interpreted, a religious compulsion) to discriminate based on sexual orientation. For some employers, this may be present; for others, this may not be. (For instance, even some employers who think gay sex is wrong, and who therefore refuse to employ gays, may not be acting out of a sense of religious duty. They may think it would be religiously fine to ignore the employees' homosexuality, but might choose to discriminate against the employees nonetheless.) (3) For some reason, I erroneously claimed that only about half the states currently ban sexual orientation discrimination; I meant to say less than half, and I have no idea why I misstated the matter. Thanks to commenter rmthunter for pointing out the error.