What the Supreme Court Giveth Can Religious Schools Taketh Away: The Title VII Religious Exemption After Bostock

In October 2021, the Diocese of Brooklyn, New York, fired Matthew LaBanca, a music teacher at St. Joseph Catholic Academy and music director at Corpus Christi Church, after it learned that he recently married his boyfriend. Sadly, LaBanca’s wedding day, which he described in a video he posted to YouTube as the most beautiful day of his life, resulted in the loss of his roles in the Diocese enriching the lives of people through music. By firing LaBanca, the Diocese stripped him of a fulfilling career, along with financial stability and benefits, and also robbed the community of a devoted and talented worker.

LaBanca’s treatment is evidence that almost two years after the U.S. Supreme Court in Bostock v. Clayton County announced that Title VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation, discrimination against the LGBTQ community continues, particularly within religious organizations. Although a victory for the LGBTQ community, the ruling does not answer questions regarding its application to the employment practices of religious organizations and religious schools. Specifically, the Court did not address whether Title VII’s religious exemption, which permits religious employers to make employment decisions based on religion, would be a valid defense where a religious employer asserts that the firing of an LGBTQ person is religiously motivated. 

Notably, this exemption only shields employment decisions made on the basis of religion. It does not permit religious entities to make employment decisions based on an individual’s membership in any of the other protected classes listed in Title VII, sex being the one relevant here. A pivotal question then in an individual’s Title VII case is whether the termination was on the basis of religion, on the basis of sex, or perhaps some combination of the two, and, as a result, whether the exemption applies.

The religious entity will, of course, argue that the firing is religiously motivated in order to reap the benefits of the exemption. That is exactly what the defendant did in Billard v. Charlotte Catholic High School. In that case, Lonnie Billard posted on Facebook of his intention to marry Richard Donham. At the time, Billard was a substitute teacher at Charlotte Catholic High School in North Carolina, where he had taught English and drama classes full time from the fall of 2001 until he retired in 2012. During his time as a full-time teacher, he earned various teaching awards and was the only teacher to be nominated for Charlotte Catholic’s Teacher of the Year Award every year since its inception. Shortly after the Facebook announcement, Billard’s work at Charlotte Catholic stopped short. He was informed by Charlotte Catholic’s assistant principal that he could no longer work as a substitute teacher because he announced on social media his intention to marry Donham. As a result, Billard filed a lawsuit claiming that he had been discriminated against under Title VII based on his sexual orientation. Charlotte Catholic argued that it fired Billard, not because he was homosexual, but because his Facebook post constituted advocacy against the Catholic Church’s beliefs.

Billard’s case presented the district court in North Carolina with an opportunity to address the Supreme Court’s recent ruling in Bostock and its application to religious schools. After thorough examination of the law, the court ruled in favor of Billard. At the heart of the court’s decision is its determination that Charlotte Catholic fired Billard because of his sexual orientation. The court could not ignore the school’s admission that it fired Billard because he was a man who intended to marry another man. As further support that Billard’s treatment was a result of his sexual orientation and not anti-Catholic advocacy, the court pointed out that if a woman teacher at the school had posted on Facebook that she was getting married to her husband, Charlotte Catholic would not have interpreted her announcement as advocacy for the Catholic Church.

Because the court found that Charlotte Catholic’s decision to fire Billard was based on sexual orientation, it further reasoned that the Title VII religious exemption did not apply, even if the firing was also religiously motivated. The court emphasized that the religious exemption does not permit sex discrimination or any other type of discrimination. It reasoned that employing the religious exemption in this case would allow a religious employer to convert any claim of discrimination to a case of religious discrimination so long as there was some religious reason behind the employment decision. Applying the exemption would erase protections against all other types of discrimination, including racial discrimination, sexism, gender discrimination, sexual orientation discrimination, and xenophobia, and allow religious employers to completely bypass Title VII liability if they could prove their discrimination was related to a religious justification.

The reasoning of the court is clear. If Congress had intended to allow religious employers to avoid liability for discriminating on the basis of protected classes other than religion, it could have done so. The fact that it did not must mean that when an employer discriminates on one of the protected bases, even if there is also a religious motive, the exemption must not apply. As a result, the Title VII religious exemption will not always save religious institutions from Title VII liability when discriminating against LGBTQ individuals.

Moving Forward: What About LaBanca?

As discussed above, Matthew LaBanca married his boyfriend in August 2021, and two months later, LaBanca was fired from his position as the music director at Corpus Christi Church and as the music teacher at St. Joseph Catholic Academy. According to a YouTube video posted by LaBanca, someone “in an act of righteousness” told Diocese officials that he had gotten married. The Diocese claimed that LaBanca was fired for failing to uphold the requirement that its employees comply with the teachings of the church, a church of which LaBanca considered himself to be a faithful member, at least up until this traumatic event.

Like in Billard’s case, however, LaBanca’s termination seems to be a clear case of employment discrimination based on sex. At the time of his firing, LaBanca was not engaging in any type of LGBTQ advocacy. As LaBanca explained in an interview with the New York Times, although he did not keep his sexual orientation a secret at work, he did not make a big deal of his wedding because he was aware of church teaching and respected that some people in the community may not understand his decision to marry. As LaBanca points out, “[t]here are many people whose lives don’t conform to church teachings. People who don’t go to church on Sunday. People who are on birth control. People who are divorced and get remarried.” The church, however, undoubtedly lets many of those employees go unpunished, lending support to the idea that his termination was based on sexual orientation and not simply motivated by religious teaching. Because his termination was based on sex, the Title VII exemption for religious discrimination should not apply. As the Billard court noted, to allow such application of the exemption would allow religious employers to evade liability by tying any type of discrimination claim to a religious motive and eliminate protection based on race, sex, and national origin.

Although overcoming the Title VII exemption is an important first step in a discrimination case, unfortunately, religious employers have other tools in their kit that they can use to evade Title VII liability. Most especially, religious employers argue that employment discrimination suits should be barred by the ministerial exception, which prevents the courts from entertaining employment disputes involving employees who fall into the category of “minister.” Recently, in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expanded the definition of “minister” to include elementary school teachers who, in addition to numerous secular duties, taught religion to their students, making it even harder for teachers at religious schools to challenge employment actions. Still, for LGBTQ claimants, getting the courts to recognize that discrimination is sex-based is an important step in fighting the battle against religious employers. If they can prove that the discrimination is sex-based and that no religious exemption applies, they have made it over the initial hurdle.

By continuing to engage in LGBTQ discrimination, religious employers harm the employees themselves and also deprive the community of passionate and talented teachers and workers. Instead of going to war over religious teachings about marriage, it would be nice if religious organizations would adopt, in the words of Pope Francis, a “who am I to judge?” approach. Realistically, however, at least for now, the work of protecting LGBTQ people must be done by the courts. Specifically, courts should not allow the Title VII religious exemption to overtake protections for LGBTQ individuals. If Congress had wanted to exempt religious organizations from all of the Title VII prohibitions, it could have done so, but it did not. The Supreme Court’s expression of protection for LGBTQ people in Bostock must mean something for those employed at religious institutions.