08/01/2014 02:31 pm ET Updated Feb 02, 2016

LGBT Civil Rights and Religious Liberty: The Challenge

Over the past two months there has been a flurry of concern and action regarding religion-based attacks on LGBT equality. These attacks are nothing new, of course, but as marriage equality is accelerating toward a national reality, the conservative opposition has been doubling down on its use of "religious liberty" as its defense. This was evident in state legislation in Arizona, Mississippi and elsewhere; at the Supreme Court in the Burwell v. Hobby Lobby decision; and in the call by conservative religious leaders for the president to add a broad religious exemption to his executive order barring federal contractors from discriminating in employment on the basis of sexual orientation or gender identity. During all this the LGBT community itself has spoken out forcefully against the broader exemption in the Employment Non-Discrimination Act (ENDA) that it had welcomed just a year earlier.

In the immediate aftermath of the Hobby Lobby decision, the Department of Education ruled on behalf of a religious school in Oregon, George Fox University, allowing it to discriminate against a trans student in its housing policy. Soon thereafter, the Department of Education extended similar exemptions to two other religious schools -- Simpson University and Spring Arbor University -- with respect to their trans students. The LGBT community felt threatened and spoke out against what seemed to be a backsliding on our civil rights.

The question is: Has anything really changed? Are the fears of a new religious ascendance post-Hobby Lobby rational? Has the Obama administration turned its back on trans civil rights?

My answer is no. The fact is that the religious exemption in Title VII of the 1964 Civil Rights Act, the gold standard for all minority groups, including ours, is narrowly crafted. It's what we wanted to have in ENDA, but the reality of having lost a Democratic supermajority in the Senate in 2010, when such an ENDA could have been passed, and the tea party's takeover of the House that same year, demanded compromise or nothing.

This is the Title VII religious exemption (as discussed by the EEOC in 2008):

This subchapter shall not apply to ... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.


[I]t shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

In contrast, the actions of the Department of Education are based on Title IX, passed in 1972. They have been standing up to discrimination against the gay and trans community for several years now, but the flurry of recently granted exemptions makes it seem as if they are newly opposed to our rights.

Here is the language of the Title IX religious exemption (emphasis mine):

Educational institutions of religious organizations with contrary religious tenets

[T]his section shall not apply to any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization[.]

You will note that between 1964 and 1972, when Title IX was passed, Congress had decided that educational institutions of a religious nature were entitled to broader latitude than religious employers. As my friend, Professor Tobias Wolff of the University of Pennsylvania School of Law, explains, Title IX "permits an exemption based upon inconsistency with 'the religious tenets' of an educational institution run by a religious organization, as compared to the narrower text of Title VII that refers to people 'of a particular religion.'"

One can argue the virtues of such a position. As a woman who was educated in a religious Jewish institution, I can recognize the value of granting my school a broad exemption. I may find it morally abhorrent, but if we're to have true religious liberty in our country and keep the government out of religious doctrine and dogma, broad exemptions are probably necessary under these circumstances. Of course, there is a potential problem in redefining "religious institution" these days, post-Hobby Lobby, as most colleges founded pre-1900 have some sort of religious foundation. As Title IX scholar Kristine E. Newhall, of the Isenberg School of Management at the University of Massachusetts Amherst, has said, "This is where we're worried about a slippery slope. So many private schools have religious traditions. Most schools founded before 1900 have some kind of religious tradition. But how does that affect a school like Fordham University, a Jesuit school that's not really controlled by the Jesuits?"

While there were few explicitly anti-gay policies back in the '50s and '60s -- social stigma did the job very effectively -- there was gross discrimination on the basis of sex. Unfortunately, that is still a feature of many conservative religious communities, and the Civil Rights Act and the campaign for an ERA have had only limited social impact on those institutions, mostly very indirectly. Since much homophobia and transphobia is rooted in misogyny, it's clear to me that in order to cleanse our faith-based institution of anti-LGBT bigotry, we're going to have to do a much better job of dealing with the pervasive sexism. That will require a very long-term effort. I'm pleased that the LGBT civil-rights movement is helping change us on that fundamental level, but I harbor no illusions that we are anywhere near gender equality.

In the meantime, we need to be thoughtful and surgical in our demands in this most American of philosophical battles, that between equality and liberty.