Mississippi state lawmaker and Republican gubernatorial candidate Robert Foster refused to travel with a reporter covering his campaign — because the reporter is a woman.
The reporter, Larrison Campbell, is one of several journalists from the outlet Mississippi Today, who asked if they could shadow Republican candidates running to lead the state. Both of Foster’s opponents agreed to this arrangement, although the reporter assigned to cover their campaigns happened to be male. Foster, however, refused to allow Campbell to ride along with him unless she was accompanied by a man.
On Twitter, Foster later explained that he discriminated against Campbell because of an arrangement with his wife.
It must be very sad to be in a marriage built on such a foundation of mistrust, but Foster’s sexism could also have profound legal implications. While Foster’s discrimination against a reporter is unlikely to end in a civil rights lawsuit, an employer who followed this “Billy Graham Rule” would necessarily deny professional opportunities to their female employees.
Imagine, for example, that a female campaign aide asked to ride with Foster because they wanted to share an idea for how to improve Foster’s stump speech. That aide would be denied this opportunity, while a male colleague with a similar idea would be allowed to ride with Foster.
Such an arrangement violates Title VII of the Civil Rights Act of 1964, which provides that employers may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
But here’s the problem — after Foster’s initial tweet explaining that he would not ride with Campbell because of his arrangement with his wife, Foster explained that this arrangement is tied up in his religious identity.
If you’ve followed the drama about whether anti-LGBTQ business owners should have a right to discriminate if they claim a religious justification for doing so, it’s not hard to see how Foster’s arrangement — or a similar arrangement by another employer — could end.
Let’s say that Foster refuses to travel with female aides while giving this professional opportunity to male aides. One of them sues, asserting that Foster violated Title VII. Foster then claims that he has a right to violate Title VII because his sexism is rooted in his religious beliefs. How would the Supreme Court handle such a case?
The short answer is that we don’t know for sure, but the court gave us a pretty good hint in Burwell v. Hobby Lobby, and that hint suggests that there are five votes on this Supreme Court to hold that sexist religious beliefs trump Title VII.
Hobby Lobby involved an employer who, in violation of federal regulations, refused to cover certain forms of birth control in their employee health plan. Prior to Hobby Lobby, this employer would have lost because the law did not allow “religious liberty” claims to diminish the rights of third parties — in this case, the rights of the company’s employees who wanted contraception. Hobby Lobby scrapped this longstanding rule, and permitted religious objectors to wield their objections against the rights of others.
But if religious objections now trump other peoples’ rights, what does that mean for anti-discrimination law? In a single paragraph, Justice Samuel Alito, who wrote the majority opinion in Hobby Lobby, tried to calm this concern. “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” he wrote, “and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
Notice what Alito did there, however. While he specifically states that race discrimination in employment cannot be justified by religion, he rather pointedly does not say that other forms of discrimination — such as sexism or homophobia — cannot be justified by a religious objection to obeying a civil rights law.
The Supreme Court, moreover, has only grown less sympathetic to victims of discrimination since Hobby Lobby. Both of Trump’s appointees to this court, Neil Gorsuch and Brett Kavanaugh, are significantly more conservative than the man they replaced.
So, while it is not certain that there are now five votes to say that sexist religious beliefs nullify Title VII, it is quite likely that they are. And the “Billy Graham Rule” that Foster says he follows would give this Supreme Court exactly the vehicle it needs to hold that laws banning discrimination against women must bow to religious conservatives.
This article was originally published by Ian Millhiser on July 10, 2019. Reprinted with permission.
About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.