The press coverage of the same-sex marriage case was not uniformly distinguished. Particularly problematic were reports that evangelical ministers would combat the Court’s decision by refusing to have same sex marriages in their churches. The implication was the Court decision had something to say about what happens in churches. It, of course, had zero effect on the decisions religious leaders are entitled to make and act upon in determining who can and cannot be married in their houses of worship. The Court’s decision had absolutely nothing to say about what happens in any part of the private sector. Only in rare cases, does the Constitution reach beyond the regulation of government action. Nothing in our Constitution prevents a private employer from discriminating on the basis of sexual orientation, let alone dictating to a minister who he or she shall marry.
I don’t expect that our law will ever intrude on these ministerial decisions. In a major decision last Thursday, however, the EEOC ruled that employment discrimination on the basis of sexual orientation was a form of sex discrimination in violation of Federal law. See here. It seems apparent that the decision applies to private and public employers. As a formal matter, the EEOC is obviously correct. If a man is involved with a man and is fired for it, but a woman would not have been fired, the discrimination is clearly based on the sex of the employee. The same argument was used to support the view that bans on interracial marriage were a form of race discrimination. But the EEOC did not rely exclusively on a formal argument. It observed that discrimination on the basis of sexual orientation involved sex-based assumptions, norms, and stereotypes. The agency also argued that discrimination on the basis of sexual orientation was associational discrimination based upon sex.
Unassailable as this analysis seems to be, there are reasons for concern that it may not stand up. In the same sex marriage case, the Court did not maintain that discrimination on the basis of sexual orientation was sex discrimination. Moreover, some federal courts have ruled that Congress did not intend to include discrimination on the basis of sexual orientation to be included in the concept of sex discrimination. That is probably right, but the EEOC suggests that these decisions are outdated and our conception of the nature of sex discrimination has evolved over time. I think we can expect that this issue will arrive sooner or later in the Supreme Court.
Whatever the outcome, hopefully the press will make it clear that the decision will have no impact on ministerial decisions affecting who can or cannot marry in their houses of worship.