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Explainer: What you need to know about the Bostock v. Clayton County Supreme Court case

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June 15, 2020

In a 6-3 ruling of a consolidated group of cases styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964.

When this legislation was passed in 1964, it is not seriously disputed that Congress intended the bill to address discrimination on the basis of biological sex. In the decades since, Congress has considered various kinds of civil rights legislation and has never voted to expand or redefine the term “sex” in the way considered by the court today. Today’s decision redefines the meaning of the word in law, despite the majority acknowledging the sweeping significance of this expansion of the scope of the Civil Rights Act.

The ERLC filed an amicus brief in these cases alongside other religious institutions contending that “sex” in Title VII does not include either classification of orientation or identity.

Chief Justice Roberts and Justice Gorsuch joined Justices Ginsburg, Sotomayor, Kagan, and Breyer in the majority, while Justices Alito, Kavanaugh, and Thomas dissented. The ERLC reviewed the court’s decision and made note of the top quotes in the majority opinion and dissents, which you can read here.

What is this case about?

This case primarily revolves around the definition of “sex” in the Civil Rights Act of 1964.

Though this sweeping decision will be known as the Bostock decision, this case, Bostock v. Clayton County, Georgia, includes two others, Harris Funeral Homes v. EEOC and Altitude Express v. Zarda. The court chose to consolidate these three cases into one because they all presented the same question: “Does discrimination on the basis of ‘sex’ include ‘sexual orientation’ as a part of ‘sex’?” Each of these cases involved individuals who claimed their employment was terminated either for their gender identity (as in Harris Funeral Homes) or sexual orientation (as in Zarda and Bostock).

As Christians, we believe that every person is made in the image of God, which means every person has immeasurable dignity and deserves to be treated with respect. At the 2018 Annual Meeting of the Southern Baptist Convention, the Messengers passed a resolution to “reaffirm the sacredness and full dignity and worthiness of respect and Christian love for every single human being, without any reservation.” The SBC’s commitment to love of neighbor is grounded in the truth that “God created man in His own image; He created Him in the image of God; He created them male and female.” (Gen. 1:26-27)

What is Title VII of the Civil Rights Act of 1964?

Title VII of the Civil Rights Act of 1964 prevents employers from discriminating against an individual “on the basis of his race, color, religion, sex, or national origin.”

After today’s decision, the definition of sex in Title VII now includes biological sex, sexual orientation, and gender identity. Effectively, Title VII can now be read as: “An employer may not discriminate against an employee because of his race, color, religion, sex, sexual orientation, gender identity, or national origin.”

How does this ruling impact churches and religious organizations?

Title VII itself includes a broad exemption for religious organizations. This exemption allows freedom for religious organizations to hire “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

In addition, the Supreme Court has recognized, under a doctrine known as the ministerial exception, that religious organizations have broad rights to hire positions related to ministerial roles in the organization. This doctrine was most recently laid out in the 9-0 decision of Hosanna Tabor v. EEOC, but the Supreme Court also heard a case this term, Our Lady of Guadalupe School v. Morrissey Berruon, dealing with whether teachers at religious schools were included in the ministerial exception. A ruling is expected this summer and it will certainly shape the extent of the ministerial exception and have significant implications for religious liberty.

What does today’s ruling mean moving forward?

The Supreme Court redefined and expanded the word “sex” in the Civil Rights Act to include much more than a person’s biological sex.

In the dissent by Justice Alito, which Justice Thomas joined, he recognized that “for the past 45 years,” Congress has introduced bills to add sexual orientation and—more recently—gender identity, to the list of protections set forth in this anti-discrimination legislation. These bills, however, repeatedly failed to pass. Today, the Court chose to bypass Congress and the legislative process to add these protections itself.

And in his own dissent, Justice Kavanaugh lamented the Court’s decision to sidestep Congress and insisted that this move to boldly rework the definition of the word “sex” robbed legislatures of their ability to legislate.

This ruling will undoubtedly affect the religious freedom of employers in the future. Justice Alito discusses this concern in his dissent at length. He notes that today’s decision chips away at the protections included in the Civil Rights Act of 1964 that safeguard religious organizations from being forced to employ individuals whose lives or beliefs run contrary to the organization’s teachings or core beliefs.

Who will this ruling affect?

This ruling raises more questions than it answers.

The court was not clear on many issues that will stem from this ruling and the impact they will have not only on Christians, but others relying on religious freedom or conscience protections. Justice Alito asserted that “the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety.”

One thing to watch is the future autonomy of religious organizations in making hiring decisions. Currently, autonomy for hiring decisions for faith-based organizations rests on three protections that Justice Gorsuch outlines in his majority opinion: the Title VII religious organization exemption, the ministerial exception, and the Religious Freedom Restoration Act (RFRA).

What should Christians do in light of this ruling?

Although today’s ruling is undeniably problematic in legal terms of protecting religious liberty and proper statutory interpretation, there is still some cause for optimism. Justice Gorsuch, who wrote the majority opinion, pointed out in the ruling that the ministerial exception still applies to matters concerning faith-based institutions. Moreover, Justice Gorsuch also indicated that the Religious Freedom Restoration Act may supersede Title VII’s application in religious liberty questions.

The ERLC will continue promoting and defending the human dignity and religious liberty of all people and religious organizations in the courts, on Capitol Hill, and throughout the public square. Though we are disappointed with today’s ruling, we are far from hopeless. We will continue to share and demonstrate the truths of Scripture, including the order of creation and God’s pattern of design for men and women as revealed to us in Scripture. And we will do so with the kind of hope and confidence that can only be found in Christ.

In his response this morning to the court’s decision, Russell Moore wrote about the ever growing need to both teach and model for the next generation of Christians why the limitations and distinctions God gives us are good. Moore encourages the church to teach these truths by, “rejecting both a spirit of the age that would erase created distinctions between men and women and those that would exaggerate them into stereotypes not revealed in Scripture. This will mean also that we train up our children to see how such are matters rooted not in cultural mores but in the gospel itself.”

Moore concludes with, “what is needed is an ongoing demonstration of counter-cultural fidelity, accountability, love, and a recognition of the kinds of limits that make human life good and livable. And, at the same time, we can be the people who recognize that those who disagree with us are our mission field, to be persuaded, not a sparring partner to denounce. We must have both conviction and kindness, both courage and patience, both truth and grace.”

Policy Staff

The policy staff works on behalf of the Southern Baptist interests in the ERLC's Washington, D.C., office, the Leland House. Read More by this Author

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24