In Horton v. Midwest Geriatric Management, currently on appeal in the Eighth Circuit, the appellant is alleging not only that sexual orientation discrimination is sex discrimination under Title VII but also that it is religious discrimination when motivated by religious animosity toward homosexuality. The argument that an employer's religious motivation converts an otherwise lawful motivation into one that is prohibited strikes me as fatally flawed, and I'm surprised that it has not been laid to rest.
Consider that under Title VII "religion" is defined as including moral and ethical views that are held with the strength of traditional religious views. I feel strongly that murder is unethical, so if I were an employer and refused to hire a murderer, that would be religious discrimination. If I didn't feel so strongly, however, it would not be religious discrimination. There's no denying that Congress has passed some stupid laws, but they still deserve more credit than that.
There may be cases where discrimination against an individual for conduct contrary to a supervisor's religious beliefs might be covered because it was tied to the victim's own religion. If a Mormon supervisor singles out gay and lesbian Mormons for worse treatment than gay and lesbian non-Mormons, that would be unlawful. But if a Mormon supervisor and a non-Mormon supervisor both discriminate against gay and lesbian employees, even though only the former is driven by an underlying religious motivation, then it is illogical to conclude that the former has treated LGBT employees worse because of the employees' religion but the latter has not.
Employers are not free to do whatever they want to do merely because it is motivated by religious reasons, but neither can they be singled out. There's a little thing called the U.S. Constitution. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court struck down a city ordinance that prohibited the killing of animals for religious sacrifice but not for other purposes, such as food consumption. In reaching this conclusion, the Court explained: "The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause."
Discrimination based on sexual orientation may be morally wrong, but it is neither more nor less wrong when rooted in religion, nor should it be any more or less unlawful.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.