It’s Not About The Tie: Transgender v. Religious Freedom

As efforts to use litigation to compensate for congressional action/inaction continue, clashes persist that give rise to outcomes that create difficult, if not impossible, conflicts with current progressive trends. Judge Sean Cox’s decision in EEOC v. Harris Funeral Homes presents such a clash, and reaction to the opinion does the public no favors.

Religious freedom is a valid defense for a Michigan business owner who fired a trans woman after she asked to dress in accordance with her gender identity, a federal judge ruled Thursday.

U.S. District Judge Sean Cox said that the funeral home deserved an exemption from complying with the law because compliance “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.”

That language is lifted from the Religious Freedom Restoration Act, a federal law that protects individuals from government action that may “substantially burden” their religious tenets. Rost had raised it as a defense in the litigation.

That Rost was able to fall back on Religious Freedom Restoration Act was a quirk of the case, as the action was prosecuted by the EEOC on behalf of the employee. Had the employee sued on his own behalf, it would not have been available, as it only applies to the government’s imposition of a burden on a person’s free exercise of religious belief.

Without the RFRA, Rost would have been constrained to rely on the Free Exercise Clause of the First Amendment, which has fallen out of favor.

This question had come up before with regard to employment discrimination bans, in the 1970s and 1980s (before the RFRA, but under the old 1963-to-1990 Free Exercise Clause rules that the RFRA was meant to restore); and courts uniformly said that — setting aside employers that are themselves religious institutions — antidiscrimination law could apply, because there’s such a compelling interest in protecting employees from losing their livelihoods based on race, sex and the like. And here too the court assumes without deciding that the EEOC has a compelling interest in “protecting employees from gender stereotyping in the workplace.”

Religion had become a squishy basis for legal protection, mostly because it was deemed archaic and dogmatic. It was the province of backward people who believed in fairies and story books rather than intellectuals who believed in reason and empiricism. This wasn’t how courts explained it, or intellectuals discussed it, but how they really felt about it. Religious fanatics were kinda nutty and stupid, and they were standing in the way of progress.

The problem, of course, was that there was that sticky First Amendment protecting the free exercise of religion, which ironically was the source of more death and mayhem over the millennia than anything else. Still is, but we tend to attribute that to evil, such as Muslim terrorists executing their extreme view of sharia law.

Whatever your views of Christian fundamentalism, the Constitution protects its free exercise. And though the courts have sought to reinterpret the scope of the Free Exercise Clause to limit its interference with secular policy, the RFRA was enacted by Congress to return it to its former dominance. Why? It was a giveback to accomplish another progressive goal, the Affordable Care Act. In the world of policy, compromise is king.

But it’s the flip side of the policy debate here that is, unfortunately, taken for granted.

Brian Hauss, an attorney for the American Civil Liberties Union ― which filed a legal brief in support of Stephens ― said in an email that the ruling was “way, way out there” and could have serious repercussions down the road.

“I’m not aware of any court holding that an employer has a religious right to ignore Title VII’s prohibition against sex discrimination,” he said. “If allowed to stand, this decision would seriously jeopardize federal anti-discrimination protections for transgender people, women and people of color.”

The naive idealist might immediately question what the ACLU has to do with this, given that its mission is to protect and defend constitutional rights. Why then does it enter into a fight against the Free Exercise Clause of the First Amendment when there is a putative clash with the Equal Protection Clause?

Shouldn’t the ACLU sit it out when two constitutional rights clash? Well, it has apparently made a choice to favor one policy position over another, and the Free Exercise Clause got thrown under the bus. To the extent the ACLU tries to position itself as a principled advocacy group, it’s conflicted and persists in picking favored positions over disfavored. It does not speak for the Constitution, but for its own version of policy preferences.

But it is also being dishonest in its position.

If allowed to stand, this decision would seriously jeopardize federal anti-discrimination protections for transgender people….

Neither Title VII nor Title IX prohibit discrimination against transgender people. The government, through the relevant administrative agencies, is doing everything it can to create the impression it does, but it doesn’t and never has. Judge Cox made that clear in his decision:

This Court previously rejected the EEOC’s position that it stated a Title VII claim by virtue of alleging that Stephens’s termination was due to transgender status or gender identity – because those are not protected classes. The Court recognized, however, that under Sixth Circuit precedent, a claim was stated under the Price Waterhouse sex/gender-stereotyping theory of sex discrimination because the EEOC alleges the termination was because Stephens did not conform to the Funeral Home’s sex/gender based stereotypes as to work clothing.

The Supreme Court’s 1989 Price Waterhouse opinion has been seized upon to show that transgender discrimination is covered under the sex discrimination rubric. And it’s being promoted, disingenuously, to fool the public that this is the law.

According to the Transgender Law Center, only 20 states plus the District of Columbia have employment non-discrimination laws protecting transgender individuals. And even Title VII, which covers the entire country, doesn’t explicitly cover gender identity discrimination, but relies on court rulings to provide such coverage.

“Because there is no federal law explicitly banning discrimination against transgender people … allowing employers to use religion to discriminate would put transgender people across the country ― people like Aimee Stephens ― at an even greater risk of losing their jobs just for being who they are,” Hauss said.

That Title VII doesn’t “explicitly” cover transgender discrimination is obvious. That court rulings create law upon which Title VII’s “coverage” relies is false. Putting aside the issue of propriety of judges creating law that Congress decided not to enact, the Price Waterhouse decision does not stand for the proposition that is being sold for public consumption.

As much as the ACLU and progressive commentators may want this to be the law, it’s not. It never was. Perhaps the Supreme Court will re-interpret Title VII and Title IX “sex discrimination” to include transgender discrimination, but it has yet to do so.* And Congress, whose job it is to enact law, has not only failed to do so, but refused.

As I’m not at all religious, and most assuredly not a fundamentalist Christian, it would be easy for me to write off Rost’s beliefs. But he has a constitutional right to the Free Exercise of his religious beliefs, even if I don’t share them. The ACLU’s treatment of constitutional rights like a Chinese take-out menu, and a brilliant legal writer, for whom I hold a special affection, allowing his personal policy preferences to influence his presentation of the law, isn’t so easily written off.

*It should be noted that Title VII is rife with secular exceptions, such as “bona fide occupational qualifications.” There’s a reason we’re not forced to endure hairy chests when watching the Victoria’s Secret Angels parade.

5 thoughts on “It’s Not About The Tie: Transgender v. Religious Freedom

    1. SHG Post author

      It was a little surprising to me that there were so few comments to this post (there were, but I trashed them for various reasons). So today, you get the first comment. May god have mercy on my soul.

      1. John Barleycorn

        I am going to hold on to the reef until the pump sputters out and talk to the octopus about abalony in the interim.

        General rule of thumb… when you fiddle with the mix; the oxygen goes to their heads.

        You need something shiny for everytime you scare ‘um!  ….Or some wax for the pulleys, or just a little hot and sappy love.

        P.S. please forgive me….for the unnecessary angst and rightfully igniter ignored as of late. Your patience is nearly as deep as your level heavy.

        Cheers esteemed one. Tip of the hat to you and a warm smile for the shoulder.

        You use it well. And was well deserved on this end

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