Sunday, October 31, 2021: Court Exalts SOME Rights of Private For-Profit Companies Over SOME LGBTQ+ Rights in Religious Freedom Treatise in Latest Collision of Rights Case Decision
Decision like a box of chocolates (something in it for everybody, and some real surprises)
Many Legal Issues of First Impression Now Decided Following Bostock
The case decision is Bear Creek Bible Church & Braidwood Management, Inc. v. Equal Employment Opportunity Commission U.S. Pastor Council et al v. Equal Employment Opportunity Commission et al, Docket No. 4:18-cv-00824 (N.D. Tex. Oct 06, 2018), Court Docket (70 pages)
Five background things to know before you get to the MANY specific case decision holdings bullet-pointed, below:
1. This is the case LGBTQ+ advocates have been fearing: a head-on collision of rights case a small for-profit business has brought seeking a declaration of its rights to discriminate against LGBTQ+ employees based on the owner’s sincerely held belief that religious scripture so requires.
As quoted from Judge O’Connor’s decision: “The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination unto the Lord thy God.” Deuteronomy 22:5 (King James Version)
2. Undoubtedly keenly aware that this case could end up at the SCOTUS, Fort Worth federal District Court Judge Reed O’Connor (the “Go To for Conservatives” Judge who previously struck down Obamacare as unconstitutional) has written a carefully drafted and thorough treatise on the religious freedom rights companies enjoy under both Title VII of the 1964 Civil Rights Act but also under RFRA (the Religious Freedom Restoration Act of 1993). Then U.S. House of Representatives Member Chuck Schumer (D-NY), now the Majority Leader of the U.S. Senate, introduced and sponsored RFRA in 1993. Get to know that acronym. We will see a lot of it in future years as this statute supplements the religious protections both the First Amendment to the U.S. Constitution and Title VII’s religious freedom exception otherwise afford. Here is how SCOTUS has previously described the interplay of Title VII’s religious freedom rights with both the First Amendment to the U.S. Constitution and with those of RFRA:
“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. § 2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” [citations omitted] And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U.S.C. § 2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. § 2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See § 2000bb–3.” Bostock v. Clayton Cnty, 140 S. Ct. 173, 1754 (2020)
3. This case is also one of the few which affords advocates a clear look at the head-on collision of rights over issues which the SCOTUS specifically reserved for future litigation in its groundbreaking 2020 Bostock v. Clayton County case decision:
“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” Bostock at p. 1753
4. Procedural Legal Issues (to understand, but ignore: debris on the freeway)
Much of the court’s lengthy decision is consumed with the following three procedural legal issues of great interest to great lawyers, but not other mere mortals.
Declaratory Relief: The Bear Creek Bible Church and Braidwood Management, Inc. sued the EEOC (no EEOC Charge is pending) in federal court in Fort Worth, Texas in a so-called “Declaratory Judgment” action. In an action for “Declaratory Relief,” the Plaintiff (the party suing) seeks a declaration from a Court in advance of any specific dispute about the rights of the Plaintiff fearing that it could otherwise later be prosecuted for failing to comply with a threatened violation of law. In other words, the Plaintiff simply wants a declaration of its rights before it likely gets sued.
Summary Judgment: The parties in this case sought trial by “Summary Judgment,” one of the three primary forms of trial (along with jury trial and bench trial). A Summary Judgment trial may proceed where there are no “material facts” in dispute (thus obviating the need for a fact-finder–like a jury or a judge hearing witnesses to determine what is a true fact: was the traffic light, for example, red or green). Rather, in a Summary Judgment trial, only the applicable law in dispute is at-issue.
Class Action Issues: Plaintiffs brought a class action on behalf of two classes: (1) every employer in the United States that opposes homosexual or transgender behavior for sincere religious reasons (“Religious Employers Class”); and (2) every employer in the United States that opposes homosexual or transgender behavior for religious or nonreligious reasons (“All Opposing Employers Class”).
5. Bear Creek Church is a nondenominational church located in Keller, Texas. Bear Creek Church requires its employees to live according to Biblical teachings on matters of sexuality and gender. In accordance with those teachings, Bear Creek Church does not recognize same-sex marriage. Any church employee who enters into a same-sex marriage will not receive benefits for his or her same-sex partner and faces immediate dismissal. Bear Creek Church also requires its employees to use the restroom designated for their biological sex.
Braidwood Management, Inc. employs approximately seventy individuals, who work at one of the following three businesses, each of which is owned or controlled by Dr. Stephen Hotze: the Hotze Health & Wellness Center, Hotze Vitamins, and Physicians Preference Pharmacy International LLC. Because Hotze operates these entities as Christian businesses, he does not allow Braidwood to employ individuals who are engaged in homosexual behavior or gender non-conforming conduct of any sort. Hotze does not allow Braidwood to recognize same-sex marriage or extend benefits to an employee’s same-sex partner, because he believes that would lend approval to homosexual behavior and make him complicit in sin, violating his sincerely held religious beliefs. Hotze also will not allow Braidwood to recognize same-sex marriage in part because the law of Texas continues to define marriage as the union of one man and one woman. Hotze believes Texas law continues to prohibit private employers such as Braidwood from recognizing same-sex marriage. Hotze does not permit employees of Braidwood to use a restroom designated for members of the opposite biological sex—regardless of the gender identity the employee asserts. Braidwood also enforces a sex-specific dress-and-grooming code that requires men and women to wear professional attire according to their biologically assigned sex. Men are forbidden to wear earrings, but women may. Men who have customer contact must wear a tie; women are not permitted to wear ties. Women can wear skirts, blouses, shoes with heels, and fingernail polish, while men are forbidden to wear any of these items. Id. Cross-dressing of any sort is strictly prohibited. Hotze enforces this sex-specific dress-and-grooming code to maintain the professionalism of his businesses and to carry out his belief that the Bible requires men to dress as men and women to dress as women.