Over the past decade, federal courts have repeatedly reviewed religious-affiliated employers' ability to avoid federal discrimination claims. Courts recognize a "ministerial exception" that prevents discrimination claims by employees whose duties directly involve the organization's religious mission. Recent litigation has involved employees who do not fall within the ministerial exemption but for whom the employer argues it should have the discretion to apply its religious principles regardless.

Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) canceled arguments in an appeal brought by a Catholic high school following a lower court determination that it had fired a teacher following social media postings celebrating his same-sex marriage. The school did not argue that the employee fell within the ministerial exception but said it was justified in requiring faculty to adhere to its opposition to same-sex marriage. The district court disagreed, concluding that the termination was based on the fact that the employee was gay.

The Fourth Circuit agreed to delay its consideration of the appeal until the U.S. Supreme Court decides a case involving a Colorado business that refused to serve same-sex couples violating a state anti-discrimination law. The Court will determine whether the First Amendment allows individuals and businesses to avoid the application of discrimination laws that contradict their religious beliefs.

If the Supreme Court provides broad First Amendment protections to businesses, employers could claim expansive immunity from federal and state civil rights law by citing their religious beliefs as the basis for the employment decisions. While these cases have focused on claims involving discrimination based on religion or sexual orientation, the same arguments could apply to race, national origin, disability, and other discrimination protections.