Does Title VII bar already bar discrimination against gays?

[Eugene Volokh]

     I just ran across Kolodziej v. Smith, 425 Mass. 518, 522
(1997), which holds that under Title VII's religious accommodation
provision, "religious beliefs include moral or ethical beliefs as
to what is right or wrong which are sincerely held with the
strength of religious views" (citing Welsh and Seeger).  This seems
to be the general rule, see cases cited at the end of this message.

     So imagine the following:  An employer learns that an employee
is engaged in a homosexual relationship.  The employer is about to
fire him, but the employee says:

     "I firmly believe that it would be morally and ethically wrong
      for me to abandon -- or even to stop having sex with -- my
      partner, who is the love of my life.  I do not believe in
      God, but I sincerely hold this belief with the strength
      with which many hold their deepest religious views.
      Continuing to employ me would not impose an undue hardship
      on you.  I therefore demand that you accommodate my conduct
      by not firing me for it."

     Assuming the jury believes that the employee is sincere, isn't
this an open-and-shut case?  And if this is true, haven't we gone
a considerable way to a conclusion that Title VII bars
discrimination based on sexual orientation?  (I realize that my
example focuses on those who are involved in committed
relationships -- that's where the claim of a deep moral and ethical
commitment not to leave the other person is most credible.  Let's
start with that for now.)

     Case cites:  Protos v. Volkswagen of America, Inc., 797 F.2d
129, 137 n.4 (3rd Cir. 1986) ("The breadth of the "exemption"
afforded by Title VII is underscored by the fact that in defining
religion, the EEOC has used the same broad definition as the
Selective Service employs for conscientious objector purposes.
See, e.g., CD 76-104 (1976), CCH Emp.Prac. P 6500."); Nottelson v.
Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (same);
(Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978) ("We believe
the proper test to be applied to the determination of what is
`religious' under s 2000e(j) can be derived from the Supreme Court
decisions in [Welsh] and [Seeger], i.e., (1) is the `belief' for
which protection is sought `religious' in person's own scheme of
things, and (2) is it `sincerely held.'"); Wondzell v. Alaska Wood
Products, Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) ("In order to
avoid the danger of unconstitutionality we would interpret [the
state statute] to accord the same privileges to all sincere
conscientious beliefs, whether or not they are accompanied by a
belief in a supreme being"); Ali v. Southeast Neighborhood House,
519 F. Supp. 489 (D.D.C. 1981) ("Sincere beliefs, meaningful to the
believer, need not be confined in either source or content to
traditional or parochial concepts of religion.  [Welsh].  See also
[Seeger] for the definition of `religious training and belief' as
applied to a conscientious objector claim, which definition is no
less appropriate here.").  But see Seshadri v. Kasraian, 1997 WL
746292 (7th Cir. Dec. 3) (Posner, J.) (Title VII doesn't apply when
"the plaintiff's belief, however deep-seated, is not religious").

---------------------------------------------------------------------
"The mystery is:                              Eugene Volokh
 here is the fork in the road,                UCLA Law School
 but which way is up?"                        (310) 206-3926
 W. Warriner, 101 Corporate Haiku no. 101     fax (310) 206-7010