Tightening the Screws on Religious Hiring

Melissa Reid September/October 2024

As federal lawmaking stalls, more state legislatures venture into culture-war territory. One target? The hiring practices of religious institutions.

Hyper partisanship and split-party control of the U.S. Congress has gridlocked the 2023–2024 federal legislative session. In contrast, states with majority red or majority blue legislatures have become hotbeds of culture-war-​related lawmaking.

There has been much discussion in the media about the passage of “faith-friendly” legislation in conservative strongholds and its potential impact on the LGBTQ community. But far less attention has been paid to comparable efforts to enact sweeping LGBTQ rights expansions in liberal bastions and the likely consequences for people of faith and the missional integrity of the institutions they maintain.

Expanding One Right, Shrinking Another

Advocacy efforts in Minnesota and Maryland are prime examples of this blue-state trend, where Democratic supermajority courts and legislatures have spent the past year working to increase LGBTQ nondiscrimination rights. Faith leaders and religious freedom advocates are understandably troubled by these endeavors, as in both instances the expansion of rights for one protected class is occurring at the expense of another. The result has been an unnecessary threat to the ability of religious organizations serving in these jurisdictions to operate according to their mission and identity.

“Religious organizations should have the freedom to draw their workforces from among those who share their religious commitments,” says Gregory S. Baylor, senior counsel at the Alliance Defending Freedom. “Houses of worship, faith-based educational institutions, and religious social service providers must have like-minded employees if they are to effectively serve their communities. In this year’s legislative sessions a number of states threatened that essential freedom.”

Many believe Minnesota’s push to increase LGBTQ rights at the expense of religious freedom began inadvertently. During the state’s 2023 legislative session, members voted to modernize its 1973 Human Rights Act by separating the definitions of sexual orientation and gender identity. Shortly after the passage of the amendment Republican lawmakers realized that the act’s longstanding religious exemption to LGBTQ nondiscrimination had been retained in the sexual orientation category but was missing from the new gender identity section.

Assuming it was a textual oversight, Republicans reached out to their Democratic-Farmer-Labor (DFL) colleagues with a simple legislative fix to include the religious exemption in the newly separate categories. That’s when progressive legislators and transgender rights advocates recognized they’d been gifted with an opportunity to diminish the established nondiscrimination exemption rights of religious organizations.

When Republican lawmakers introduced an amendment to restore the religious exemption at the beginning of the 2024 legislative term, DFL party leaders claimed the exclusion was intentional and refused to entertain discussion otherwise. Unfortunately, but also probably unsurprisingly, for the next few months the political “debate” surrounding the issue mirrored the toxicity and dysfunction of the U.S. Congress: impassioned, combative, and nowhere near constructive.

A Tenuous Win in Minnesota

Providentially, the Minnesotan faith community recognized its need to engage. Religious leaders and members representing a diversity of belief systems began reaching out to legislators, highlighting their positive impact in the state and asserting that any expansion of LGBTQ rights could be accomplished without threat to necessary and established religious freedom safeguards.

“Religious exemptions to nondiscrimination mandates related to sexual orientation and gender identity exist because they are an acknowledgment that there are good faith disagreements around these issues, and that religious organizations in particular should have the ability to operate their institutions and pass on their beliefs according to their values,” says Jason Atkins, executive director and general counsel for the Minnesota Catholic Conference.

Faith leaders and religious liberty advocates flooded legislators with letters, office visits, and petitions reminding them that both U.S. and Minnesota constitutional law recognize the right of religious organizations to select employees that appropriately align with their fundamental mission and beliefs. Near the end of the legislative session Democratic leaders finally seemed to remember these enshrined rights and bipartisan negotiations began. On May 7, in a dramatic about-face, the Democratic-majority Minnesota Senate unanimously approved a bill reinstating the religious exemption to gender identity nondiscrimination requirements. The Minnesota House followed suit a few days later, and on May 15 Democratic governor Tim Walz signed the bill into law.

Certainly the restoration of the religious exemption was a relief for Minnesotans of faith. But messaging from the state’s Democratic Party leadership indicated the issue is likely to reemerge. Statements released by the offices of the governor and house speaker maintained that the reinstatement of the religious exemption was not a concession but only a clarification of existing state and constitutional religious protections, with house speaker Melissa Hortman predicting a subsequent legal challenge to these historic safeguards.

“Minnesota was an example in which the organized and strategic efforts of the faith community were able to prevail in the face of strong political opposition to religious liberty in general,” says Atkins. “But the reality is that the broader faith community will have to work together now and well into the future to make the case both for the wisdom of their beliefs regarding the dignity of the human person and the legal necessity of the exemptions.”

Emerging Threats in Maryland

In dark-blue Maryland, the expansion of LGBTQ rights at the expense of historic religious protections began with the state supreme court’s August 2023 ruling in John Doe v. Catholic Relief Services. In this employment rights case the court was asked to determine two questions. First, did the prohibition of discrimination on the basis of sex in the Maryland Fair Employment Practices Act (MFEPA) and the Maryland Equal Pay for Equal Work Act (MEPEWA) include sexual orientation? Second, did MFEPA’s religious exemption apply to work connected with all activities of the religious entity, or only those that are “religious in nature”?

On the first question presented in Doe the court ruled that in both statutes “sex” as a protected category did not include “sexual orientation,” in part because the language and legislative history of MFEPA demonstrated that the Maryland General Assembly intended for the separate enumerations to be distinct categories of protection for employees.

State Democratic leaders’ response to the court’s decision was swift. Maryland attorney general Anthony Brown’s statement reiterated his commitment to LGBTQ rights. “As attorney general, I promised to work every day to ensure that hate, discrimination, and bias will have no sanctuary in this state. . . . The Maryland Supreme Court’s decision declining to follow the U.S. Supreme Court’s protection of people on the basis of sexual orientation and identity in employment is a disheartening setback. But it won’t stop us.”

At the beginning of the 2024 legislative session Maryland House speaker Adrienne Jones led the party’s response to the court’s ruling with the introduction of HB602, legislation to prevent employers from discrimination against a person based on their sexual orientation. Given the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, religious liberty advocates weren’t shocked when the bill sailed through both legislative chambers and was passed into law.

A Narrow or Broad Exemption?

What did alarm faith advocates, however, was the court’s response to the other question addressed in Doe: how narrowly or broadly should MFEPA’s religious employment exemption be defined? In other words, is it a narrow exemption, which is valid only for employees engaged directly in “religious activities”? Or is it a broad exemption, allowing a religious institution to make all its hiring decisions based on its religious identity and mission?

Some quick background: At the federal level, the exemption for religious organizations is broad. In 1972 Congress amended the U.S. Civil Rights Act Title VII exemption for religious entities by removing the “religious” qualifier prior to “activities.” The result was a more generous exemption for religious entities. The provision exempted claims against religious entities “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [religious entity] of its activities.” In 1973 the Maryland General Assembly followed Congress’s lead, amending MFEPA’s religious entity exemption to remove the “religious” qualifier.

In the Doe majority opinion, the court acknowledged that when the Maryland General Assembly added sexual orientation and gender identity to the exemption in 2001 and 2014 respectively, “it did not reinsert ‘religious’ before ‘activities’ or otherwise change the exemption to reflect an intent no longer to exempt claims by employees who perform work ‘connected with’ a religious entity’s secular activities.”

Despite this acknowledgment, the court never­theless asserted that the religious exemption granted by the act was narrow. The court said, “We disagree with the notion that, as of the time the General Assembly amended MFEPA to prohibit discrimination based on sexual orientation (and, later, gender identity), it intended at the same time to allow religious entities to discriminate on the basis of sexual orientation or gender identity against employees whose duties are materially indistinguishable from those performed by individuals at secular organizations, irrespective of the religious entity’s core activities. The exemption’s use of ‘connected with’ links the ‘work’ of the employee to the ‘activities’ of the organization. As we see it, the narrowest reasonable reading of this language is that, in order for the exemption to apply, the employee’s duties must directly further the core mission(s)—​religious or secular, or both—of the religious entity” (emphasis added).

The court went even further, offering detailed guidance to lower courts called upon to analyze the applicability of the religious exemption.   

Following the court’s encouragement and direction, at the beginning of the 2024 Maryland legislative session Democratic delegate Kris Fair introduced HB469, which specified that the exception for religious employers applied only to the religious activities of the employers.

Maryland faith-based employers scrambled to connect with state lawmakers to underscore their established right to select employees that appropriately align with the fundamental mission and beliefs of their organization and the necessity for all employees to authentically live out the values they strive to reflect to the community.

Fortunately, there were both Republican and Democratic Maryland lawmakers sympathetic to maintaining the integrity and viability of the local faith community. The proposal to statutorily narrow the religious exemption in Maryland received no support beyond its original sponsor. House Bill 469 was withdrawn by Delegate Fair following its hearing before the Economic Matters Committee.

However, the Doe ruling stands, and Maryland-based religious organizations remain vulnerable and uneasy.

Balance Is Possible

“Laws protecting LGBT people from discrimination have stood side by side with protections for faith groups to live out their religious missions,” says Tim Schultz. “States seeking to repeal that balance have shown no benefit to LGBT people. This is purely an attack on religious views disfavored by the state.”

“The government shouldn’t punish those holding biblical views on sexuality and the distinction between the sexes,” agrees Baylor.

Lawmakers at both the federal and state levels have already found ways to protect members of the LGBTQ community from discrimination while still upholding our nation’s strong commitment to religious freedom for everyone. Unfortunately, so long as this national mood of intolerance prevails, we should expect more and more of this winner-takes-all approach to policymaking. Regardless of our political perspectives, it’s high time we submit to the better angels of our nature and strive to live in peaceful coexistence.

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Article Author: Melissa Reid

Melissa Reid is the associate editor of Liberty.