Disputes over religious freedom and LGBT+ rights in the United States have given rise to some of the highest-profile court controversies. For example, the Supreme Court recently heard arguments about whether a designer can refuse to create same-sex wedding websites, in a matter that will be decided until June 2023.
Lately, many of these controversies have started in educational settings, both in schools and on college campuses. As a professor of educational law, I see these cases that try to balance the tensions between fundamental rights, as potentially shaping new precedents.
The cases at Yeshiva University, a private Orthodox Jewish school in New York City, and Seattle Pacific University, a small Christian school, have made headlines, but they are not the only ones. Similar concerns arose at Indiana’s Catholic high schools, where courts upheld firings of employees in same-sex marriages, as well as at Samford University in Alabama, where campus officials rejected a student’s request to form a club. for LGBT+ law students.
The dispute at Yeshiva University arose when officials rejected YU Pride Alliance’s request for official recognition, saying it was incompatible with the school’s religious values.
Pride Alliance filed a lawsuit alleging that the university violated a provision of the New York City Human Rights Law, which prohibits discrimination based on sexual orientation and gender. After a state trial court rejected Yeshiva’s defense that it should be exempt because it is a religious institution, the school appealed to the Supreme Court, which granted a brief stay of the order in September 2022.
But five days later, the Supreme Court overturned the stay: in other words, the judges refused to block the order for Yeshiva officials to recognize the club.
“The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture,” Judge Samuel Alito wrote in his dissent. “Yet that is exactly what New York has done.”
Rather than comply with the order, the Yeshiva administration suspended all student clubs while it continued to fight the case. He soon offered his own official club, saying it was for LGBT+ students “who strive to live authentic Torah lives.” The dispute persists, however, as the Pride Alliance continues to seek recognition.
hiring and firing
The second set of recent cases involves employment, specifically, whether faith-based high school officials can fire staff for marriages that violate their beliefs.
In three separate Indiana cases, courts upheld the firings of two counselors and a teacher at Roman Catholic high schools who married same-sex spouses.
The Seventh Circuit Court, the Indiana Supreme Court, and a federal trial court largely based their decisions on the Civil Rights Act of 1964, which prohibits employment discrimination based on a variety of personal characteristics, such as race, color, religion, sex or national origin.
Most notable of these controversies, however, is that Title VII grants far-reaching exceptions for faith-based employers. Often referred to as the “ministerial exception,” this provision allows officials of religious institutions to fire people who do not abide by the dictates of the employer’s faith, or not to hire them in the first place.
A similar type of dispute arose at Seattle Pacific University, where employees and students challenged a campus policy that prohibited employees from same-sex marriages. In the wake of the discrimination claim filed against campus officials, the school filed its own case to prevent the state attorney general from investigating whether the charges had merit. A federal trial court rejected that attempt and the investigation continues.
The sensitive issues underlying these disputes go to the very heart of what it means to be human: how people and organizations can live in ways consistent with their personal values and needs, and how to balance religious freedom with nondiscrimination. These controversies deserve to be watched closely, because they are likely to have a profound impact on the shape of society and the education of the next generation.
* Professor in the College of Education and Health Sciences and Research Professor of Law at the University of Dayton.
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