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Churches and a for-profit business are seeking religious exemptions from the Supreme Court ruling against anti-LGBTQ+ discrimination in employment.
Right-wing Christian groups in Texas are arguing in court that employers should be able to discriminate against workers who engage in "homosexual or transgender conduct" such as using Grindr, visiting a gay bar, or having same-sex relations.
The arguments came in a brief filed Monday in U.S. District Court for the Northern District of Texas, Fort Worth Division, by the U.S. Pastor Council, Bear Creek Bible Church, and Braidwood Management, a firm run by longtime anti-LGBTQ+ activist Steven Hotze, a leader of the successful campaign to repeal Houston's nondiscrimination ordinance.
The plaintiffs filed suit several months ago seeking an exemption from Bostock v. Clayton County, the Supreme Court decision banning anti-LGBTQ+ employment discrimination, saying it violates their religious freedom. It names as defendant the Equal Employment Opportunity Commission, a federal government agency that has issued guidance on how employers should follow the provisions of Bostock. U.S. District Judge Reed C. O'Connor, one of the most conservative federal jurists in the nation, ruled in January that the suit could go forward.
The Bostock ruling, issued last June, held that Title VII of the Civil Rights Act of 1964, in banning employment discrimination based on sex, also bans such discrimination based on sexual orientation and gender identity. The law doesn't apply to employers with fewer than 15 workers or to Native American tribes, and it allows churches and religious schools to favor members of their own religion for certain positions. Also, the Supreme Court has recognized a ministerial exemption so churches don't have to employ clergy members who don't hold their beliefs. But the plaintiffs say those exceptions don't go far enough to protect their rights under the Religious Freedom Restoration Act and the First Amendment to the U.S. Constitution.
"The plaintiffs have sincere and deeply held religious beliefs that marriage is limited to a man and a woman, that sex is to be reserved for marriage, and that men and women are to dress and behave in accordance with distinct and God-ordained, biological sexual identity," the brief reads. "Title VII, as interpreted in Bostock, requires that the plaintiffs operate their businesses contrary to their religious beliefs by denying them the ability to prescribe standards of conduct and deportment for their employees. At the same time, the plaintiffs believe that they are called by God to obey the civil authorities. So they are caught in a bind, and until this Court grants the declaratory relief that the plaintiffs seek, the plaintiffs have no way to avoid violating their religious beliefs."
The ministerial exemption, the brief says, "protects the Catholic church from being forced to hire women as priests -- notwithstanding the text of Title VII -- and it protects other churches from being forced to hire practicing homosexuals as clergy. But this 'ministerial exception' is no help to Christian nonprofits or businesses that oppose homosexuality and transgender behavior on religious grounds. And the 'ministerial exemption' does nothing to shield churches or religious schools that require their non-ministerial employees (such as secretaries or janitors) to refrain from homosexual or transgender behavior."
It argues that Title VII's ban on sex discrimination should be interpreted to allow discrimination against people "who engage in homosexual or transgender conduct," as long as an employer sets rules that apply equally to both sexes. It says employers could set rules that no worker, male or female, could "enter a gay bar or gay bathhouse," "engage in the sexual practices associated with homosexuality," "use Grindr (or other dating apps used primarily by homosexuals," or seek or obtain hormone therapy or genital surgery unless it's for a condition other than gender dysphoria. The suit also contends that discrimination against bisexual people is not sex discrimination, as an employer could treat attraction to both sexes the same "whether it occurs in a woman or a man."
The plaintiffs are seeking summary judgment -- a decision rendered without a full trial -- and a permanent injunction against the enforcement of Bostock's provisions on employers with religious objections. They are also seeking class action status for the suit, meaning any ruling would apply to more than just the named plaintiffs.
"Sadly, they seem likely to prevail -- at least at the district court level," Raw Story reports. O'Connor, who heads the division hearing the suit, "is among the nation's most notorious right-wing federal judges," the site notes. He has previously ruled against the portion of the Affordable Care Act banning anti-trans bias in health care, against the Obama administration's guidance on how schools should treat trans students, and against certain rights for married same-sex couples. Generally, there hasn't been action by higher courts, and the Biden administration has affirmed the ACA rule and stood up for trans students' rights, reversing moves by the Trump administration.
