Quarantine Queens,
You have asked me to research “how the fuck is anti gay shit not instantly struck down by separation of church and state [?] how could you possibly justify anti gay shit otherwise[?]”. I understand this question to be prompted by a NYT article a June 12, 2020 Health and Human Services (“HHS”) regulation 4153-01-P which, in interpreting the meaning “on the basis of sex” in the Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 18116, eliminated a prior regulation’s definition of discrimination “on the basis of sex” to include “gender identity . . . an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” While this regulation thus has nothing to do with “gay shit”, see 81 F.R. at 31390, but instead transgenderism, I will attempt to summarize both areas to the extent feasible. Given the incredibly broad scope of the questions asked, this memorandum will be more meandering, inaccurate, and surface-level than usual and it would be unduly burdensome to correct it without my receiving compensation at my normal hourly rate.
I. Background on Freedom of Association and Private Discrimination
NB: This immediately approaches “bake the gay wedding cake” territory. Just keep reading, because while it may sound like I’m trying to convince you of my view that’s not the focus and obviously reasonable minds can differ on the boundaries/specific applications. I’m just setting up the framework as I find most natural to do so and establishing the basic lay of the land.
Something I recommend thinking of as a general background rule (which may be and clearly is supplanted by specific laws) is that a private person (an individual, or a non-human entity like a union or corporation, but not any branch or agent of government) may discriminate on any basis whatsoever when doing any activity. A nightclub may refuse me entry on the basis of my poor fashion (an immutable characteristic), you may decide not to date someone because they are [gender]/[religion]/ugly (all immutable characteristics), Jeff Bezos may decide not to hire me because he hates libertarians, or Twitter might fact check Donald Trump cause they feel like it. The fact that a person discriminates in the provision of goods and services (instead of doing so without receiving money in exchange) is irrelevant. The freedom to associate with whomever one wants does not vanish whenever money is involved, just like one’s freedom of speech is not forfeited when one is paid to speak. One of the more relevant gay rights cases in this area is less absolute than what I just said, see Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000), but the increasing strength of First Amendment over the past couple decades makes me think that opinion’s limiting principles are unlikely to stand if tested.
My little-researched understanding is that at common law (the judge-made law of England from which the American colonies inherited their legal systems) this general rule was only inapplicable for public accommodations/common carriers. So in fact an innkeeper could be made to accept all persons on a “fair, reasonable, and non-discriminatory” basis. Today, this exception is captured by Title II of the Civil Rights Act of 1964, prohibits discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
Thus, to NA’s first question of “how the fuck is anti gay shit not instantly struck down by separation of church and state”, it is important to remember first that “separation of church and state” (which does not appear in the U.S. constitution but which is commonly associated with the First Amendment) only applies to acts of governments, not to acts of private individuals. Second, it is not unconstitutional for the Government to allow private discrimination to exist by not passing a law prohibiting discrimination. But see Shelley v. Kraemer, 334 U.S. 1 (1948).
A world where that was not the case (i.e. there is no “state action” doctrine) would entirely change the structure of our legal system and impinge on the freedom of association. Think about the nightclub or dating examples above; religious organizations aren’t the only organizations who would be fundamentally destroyed by mandated anti-discrimination. See, e.g., In re Southgate v. United African Movement, Nos. MPA95-0851, PA95-0031, 1997 WL 1051933 (N.Y. City Comm’n on Human Rights June 30, 1997) (holding that black separatist organization could be compelled to admit whites to its meetings). Such a reading of the Constitution would probably require logic-defying readings of implied rights just to have a semblance of manageability and avoid the most absurd results. But this is a tangent for Section III.
So while governments are not required to ban private discrimination generally, there are two related questions you might be thinking: 1) what if the government gives a private actor money? and 2) are there any limits on the discrimination that the government can ban, like your tangent was discussing JMB? Those questions are addressed in the next two sections.
II. Federal Contracting Law
I am talking out of my ass when it comes to federal contracting law, but here’s what I think is true.
“Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.”
Perkins v. Lukens Steel Co., 210 U.S. 113, 127 (1940).
Per that quote, the government has the same rights to associate with whoever it wants (i.e. discriminate) in contracting. (I’m sure there’s some limit where a government can’t give all its money to a provider that denies services to some race, e.g., but I can’t find that obvious statement in a case right now). The government can give money to an artist who makes anti-christian artworks, or it can decide to only give money to those artists whose works are as wholesome as baseball and apple pie. See National Endowment for the Arts v. Finley, 524 U.S. 569 (1998). Similarly, the government can decide only to give contracts to those who have affirmative action policies (as the US government has done since JFK’s executive order).
Obviously then, the government can discriminate by only giving contracts to those who don’t discriminate on the basis of some characteristic in rendering services. That is what Section 1557 of the ACA does by prohibiting discrimination “on the basis of sex” for those insurers and health care providers who accept money under the program. A healthcare provider who wants to discriminate on the basis of sex can decide not to take the money offered by the federal government, although that would probably be against the norm (like Hilldsale College does by refusing money so as not to be subject to Title IX regulations). HHS Regulation 4153-01-P defines “on the basis of sex” differently than a 2016 rule and thus allows entities to discriminate on the basis of “gender identity” (against transgender persons) while still getting funding. But as is hopefully clearer, this is not unconstitutional (or somehow violative of the First Amendment’s “separation of church and state”) as governments have broad powers to condition funds and are not required to ensure that no discrimination ever happen.
III. Title VII of the Civil Rights Act and the Ministerial Exception
While Title II of the Civil Rights Act bans discrimination on the basis of race in public accommodations, Title VII bans discrimination on the base of “race, color, religion, sex, or national origin” in employment for employers over a certain size. 42 U.S.C. 2000e-2.
We mentioned earlier “the separation of church and state” as being related to the First Amendment. Two clauses are relevant. The Establishment Clause of the First Amendment prohibits a government from (most obviously, but not only) establishing an official church or otherwise endorsing religion. Equally important, however, is the Free Exercise Clause of the First Amendment, which provides that government may not pass laws “prohibiting the free exercise” of religion. Both are needed for the “separation of church and state”; if government interferes with the operations of religion, then it is too violating that ideal of “separation”.
The First Amendment and Title VII are in conflict (and the Constitution wins all conflicts). Say an mosque/Islamic school only allows men, obviously, to be imams/teach and does not hire women on the same basis. That very well could violate Title VII. But forcing the mosque/school to hire women against the mosque/schools religious tenants would prohibit free exercise of the religion, which is impermissible under the First Amendment. So said the Supreme Court of the United States in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012). This carved out a so-called “ministerial exception” for Title VII. Before the Supreme Court this term is a case asking where the boundaries to the ministerial exception are; it should be decide this month. See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267.
This was a Jurisprudence Minutiae Blog