The issue of religious freedom is one of the major issues swirling around the Employment Non-Discrimination Act. If my religion requires me to shun homosexuals, is my religious freedom being impacted if the law requires me not to?
The Supreme Court has answered in favor of the religious discrimination argument on two occasions. Significantly, these were not in the workplace context, and I believe that context would call for a different analysis and a different answer. These well-known examples are Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In these cases, the organizations in question denied participation by gay persons, who sued under non-discrimination statutes. The Court denied their claims, saying that the First Amendment right to freedom of association trumps the right of a legislative body to outlaw discrimination. The Religious Freedom Restoration Act, passed in 1993, may also come into play, though the Supreme Court has held it unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997).
The issue, and legislation pending on religious workplace discrimination that may affect this issue, is discussed in a post this week on the blog "Jottings By An Employer's Lawyer."
