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Supreme Court makes anti-LGBTQ discrimination easier at religious schools

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The U.S. Supreme Court has ruled for carve-outs under the law for religious schools. (Washington Blade file photo by Michael Key)

In a decision that undermines LGBTQ teachers at religious schools, the U.S. Supreme Court has affirmed for Catholic schools an expansive ministerial exemption in hiring practices under civil rights law.

In the 7-2 decision issued on Wednesday, U.S. Associate Justice Samuel Alito writes religious institutions have authority under the First Amendment to make employment decisions for teachers who educate in faith matters consistent with their religious beliefs — even if that would be considered unlawful discrimination at secular places of employment, such as anti-LGBTQ discrimination.

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Alito writes. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Joining Alito in the decision were conservative justices John Roberts, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas as well as liberals Elena Kagan and Stephen Breyer. Dissenting from the opinion were Sonia Sotomayor and Ruth Bader Ginsburg.

The Supreme Court makes the decision in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel, which were brought by Catholic schools seeking an expanded ministerial exemption in the face of lawsuits from teachers suing the schools for employment discrimination.

Alito bases much of his ruling on the Supreme Court’s previous decision in 2012 in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, which determined religious schools have a ministerial exemption, but declined to identify its scope.

Although Alito concedes teachers at schools in the cases at hand weren’t given the title of minister, he concludes their cases “fall within the same rule that dictated our decision in Hosanna-Tabor.”

“We declined to adopt a ‘rigid formula’ in Hosanna-Tabor, and the lower courts have been applying the exception for many years without such a formula,” Alito writes. “Here, as in Hosanna-Tabor, it is sufficient to decide the cases before us. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”

But in her dissent, Sotomayor writes the majority opinion “skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role.”

“That is, the court’s apparent deference here threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring process,” Sotomayor continues. “That cannot be right. Although certain religious functions may be important to a church, a person’s performance of some of those functions does not mechanically trigger a categorical exemption from generally applicable anti-discrimination laws.”

Despite ruling for an expansive ministerial exemption under the First Amendment, Alito appears to word his decision carefully so that the immediate application is the cases at hand: Teachers at religious schools who are expected to lead in prayer and teach the faith.

Thomas writes in a concurring opinion the decision didn’t go far enough, arguing the Supreme Court should have given religious schools even more good-faith leeway in the hiring of non-ministerial positions.

“Although the functions recognized as ministerial by the Lutheran school in Hosanna-Tabor are similar to those considered ministerial by the Catholic schools here, such overlap will not necessarily exist with other religious organizations, particularly those ‘outside of the “mainstream,”‘” Thomas writes. “To avoid disadvantaging these minority faiths and interfering in “a religious group’s right to shape its own faith and mission,” courts should defer to a religious organization’s sincere determination that a position is ‘ministerial.’”

The Becket Fund for Religious Liberty filed a petition for review before the Supreme Court after federal appeals courts ruled in favor of the teachers and against the schools. The court accepted and heard arguments in May, when justices appeared to lean toward an expanded religious exemption.

Eric Rassbach, vice president and senior counsel at Becket, argued the case to the Supreme Court and said in a statement the decision is “a huge win for religious schools of all faith traditions.”

“The last thing government officials should do is decide who is authorized to teach Catholicism to Catholics or Judaism to Jews,” Rassbach said. “We are glad the court has resoundingly reaffirmed that churches and synagogues, not government, control who teaches kids about God.”

On its face, the decision has nothing to do with LGBTQ workers. The schools raised the ministerial exemption claims in response to litigation from teachers alleging wrongful termination for other reasons.

One teacher alleges she was terminated based on age discrimination, the other based on disability after having to request time off to treat cancer. The schools have maintained the termination was the result the teachers not fulfilling their ministerial roles at the schools.

But the decision has implications for workers at religious schools across the board, including LGBTQ teachers. After the Supreme Court just last month determined in the case of Bostock v. Clayton County anti-LGBTQ discrimination is prohibited in the workplace under Title VII of the Civil Rights of 1964, the latest ruling expands religious carve-outs under that law to enable discrimination.

Gay teachers could potentially be barred from suing a Catholic school if they’re terminated for entering into a same-sex marriage, or transgender teachers if they’re fired for undergoing a gender transition. The only saving grace may be the analysis in the ruling, which heavily draws on the demonstrated expectation teachers would engage in faith-based leadership for their jobs to fall under the ministerial exemption.

The scope of the ruling doesn’t stop with LGBTQ people. The breadth of the decision based on the First Amendment undercuts any and all laws and policies prohibiting discrimination on any basis, including race, gender, disability, HIV status, national origin. That includes federal laws like Civil Rights of 1964 as well as any state law or city ordinance prohibiting discrimination.

Shannon Minter, legal director for the National Center for Lesbian Rights, wrote in an email to the Blade the immediate impact of the decision is “limited,” but the analysis is “disturbingly broad and appears to open the door to sweeping new exemptions to anti-discrimination laws.”

“Depending on how the court applies this decision in future cases, it may enable religious employers to evade civil rights laws simply by claiming that virtually any employee is somehow fulfilling an important religious function,” Minter said. “Protecting religious liberty is important, but this decision goes too far and leaves far too many employees vulnerable to being fired or abused for reasons that have nothing to do with religious beliefs.”

Such discrimination may well happen, and perhaps even increase for LGBTQ teachers as result of the Supreme Court decision. Although corporations over the years have grown more accepting of LGBTQ people, anti-LGBTQ discrimination at religious institutions continues to be an ongoing issue.

Robyn Blumner, legal director for the pro-secular Center for Inquiry, said in a statement the Supreme Court decision is more expansive than it seems and turns legal jurisprudence for civil rights law on its head.

“This doctrine was intended to prevent the government from being able to dictate to churches who could serve as a preacher,” Blumner said. “Here, it’s being used as a wink-and-nod to religious schools so they can safely ignore anti-discrimination laws and leave their fired employees with no legal recourse. So the Supreme Court has yet again chosen to give religious groups the ultimate privilege: immunity from obeying the same laws as everyone else.”

An estimated 300,000 lay teachers at religious schools will now be subjected to having their non-discrimination removed as a result of the Supreme Court decision, according to an estimation in May from Jeffrey Fisher, an attorney with the Menlo Park, Calif.-based law firm O’Melveny & Myers LLP, who represented Catholic school teachers in the case.

Maggie Siddiqi, director of the faith and progressive policy initiative at the Center for American Progress, said in a statement the breadth of discrimination of the Supreme Court ruling would allow is considerable.

“Today’s ruling means religious institutions who wish to fire or refuse to hire school teachers or other staff based on age, race, sexual orientation or other discriminatory factors now have legal cover for doing so,” Siddiqi said. “This decision could strip away the right of millions of workers at religious institutions — from teachers to health care professionals — to sue employers if they experience employment discrimination. These critical legal rights should not be denied to workers.”

The Trump administration had argued before the Supreme Court in favor of the expanded religious exemption for Catholic schools. It remains to be seen how it will implement the decision, or if it will factor into the administration’s yet-to-be-anncouned plan for implementing the pro-LGBTQ ruling from last week.

The Justice Department didn’t immediately respond to the Blade’s request to comment on the ruling, nor did the White House immediately respond to the Blade’s request to comment on whether President Trump was briefed on the decision.

One agency that is likely affected is the U.S. Equal Employment Opportunity Commission, which is charged with enforcing employment civil rights law and even before the U.S. Supreme Court decision for LGBTQ rights had been accepting charges of anti-LGBTQ discrimination in the workforce. The EEOC didn’t immediately respond to the Blade’s request to comment on the decision.

Because the reasoning of the opinion is based on the First Amendment, reversing the decision won’t be easy. Even passage of the Equality Act, legislation to bar anti-LGBTQ discrimination, won’t help because the legislation makes no attempt to alter the ministerial exemption under the Civil Rights Act, and even if it did, the U.S. Constitution trumps statutory law.

Instead, reversing the decision in the Our Lady cases would require judicial reconsideration, which would likely require changing the makeup of the Supreme Court, or passage of a U.S. constitutional amendment, which is an arduous task that requires a two-thirds majority vote in both chambers of Congress, then ratification from three-fourths of the states.

The Blade has placed a request with the Human Rights Campaign and the National Center for Transgender Equality, which had been among the chief advocates of the Equality Act, seeking comment on the way forward after the decision.

Jennifer Pizer, law and policy director at Lambda Legal, didn’t hold back in her assessment of the ruling, saying it has “opened a veritable Pandora’s Box that threatens the continued employment and financial security of thousands of teachers at religiously affiliated schools.”

“While there is no serious dispute that top authorities at churches and religious schools are free to select those who lead worship services or teach the tenets of their faith, it stretches the term ‘minister’ beyond recognition to also include those whose jobs or duties have little to do with propagation of the faith,” Pizer said. “Teachers of secular subjects are not clergy by any reasonable understanding of the word. They should not be deemed clergy simply to shield their employers from liability for wrongful workplace practices.”

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Virginia

Virginia GOP gubernatorial candidate opposes marriage equality

The Family Research Council, which the Southern Poverty Law Center categorized as an extremist anti-LGBTQ hate group has endorsed Youngkin

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Glenn Youngkin (Blade file photo)

FAIRFAX COUNTY, Va. – Glenn Youngkin in an interview with the Associated Press has reiterated his opposition to marriage rights for same-sex couples.

Youngkin—a Republican who is running against Democrat Terry McAuliffe to succeed Virginia Gov. Ralph Northam—said in an interview published on Friday that he feels “called to love everyone.” Youngkin then reiterated his opposition to marriage equality before he added it is “legally acceptable” in the state. “I, as governor, will support that,” Youngkin told the AP.

McAuliffe was Virginia’s governor from 2014-2018. Same-sex couples began to legally marry in Virginia a few months after McAuliffe took office.

McAuliffe in 2014 became the first governor of a Southern state to officiate a same-sex wedding. The lesbian couple who McAuliffe married recently appeared in one of his campaign ads.

McAuliffe on Friday criticized Youngkin. “As governor, I worked my heart out to keep Virginia open and welcoming to all,” said McAuliffe in a tweet. “This type of bigotry and intolerance has no place in our commonwealth.”

The Family Research Council, which the Southern Poverty Law Center has categorized as an extremist anti-LGBTQ hate group, earlier this month endorsed Youngkin, but Log Cabin Republicans are among the groups that have backed his campaign.

The Human Rights Campaign in 2019 named Youngkin’s former company, the Carlyle Group, as a “Best Place to Work for LGBTQ Equality” in its annual Corporate Equality Index.

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Utah

Deal with LDS church promoted model for LGBTQ rights/religious liberties

The agreement led to an LGBTQ civil rights law in the state, which has Republican control of the state legislature and the governor’s mansion

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Salt Lake City Utah Mayor Erin Mendenhall raises Pride Flag, June 2021 (Blade file photo)

SALT LAKE CITY – A new video from the premier LGBTQ group in Utah, challenging the idea LGBTQ rights must be at odds with religious liberty, promotes an agreement reached in the state as a potential model to achieve a long sought-after update to civil rights law at the federal level.

The video, published Friday by Equality Utah, focuses on a 2015 agreement in Utah between the supporters of LGBTQ rights and the Mormon Church to enact a compromise acceptable to both sides. The agreement by those two sides led to an LGBTQ civil rights law in the state, which has Republican control of the state legislature and the governor’s mansion.

Troy Williams, executive director of Equality Utah, says in the video dialogue is key to achieving meaningful success, whether its among the people of Utah, a state legislature or lawmakers in Congress.

“When you are working with LGBT rights in a state like Utah, and you want to advance legal equality, you can’t do it without working with Republicans, with conservative, with people of faith,” Williams says

Williams, speaking with the Washington Blade over a Zoom call, said the main audience for the video is people on “the center right and the center left” willing to listen to other side when it comes to LGBTQ rights and religious liberty.

“People that have the courage to reach out to each other, and sit down across from each other and say, ‘Hey look, let’s hammer this out,” Williams said. “That’s who my audience is.”

Not only did Utah enact non-discrimination protections for LGBTQ people, but the state under a Republican governor administratively banned widely discredited conversion therapy for youth. When lawmakers proposed legislation that would ban transgender youth from competing in school sports, the proposal was scuttled when Gov. Spencer Cox (whom Williams called a “super Mormon”) said he’d veto it after it came to his desk.

Marina Gomberg, a former board for Equality Utah, is another voice in the video seeking dispel the narrative religious liberty and LGBTQ rights are in conflict.

“in order to protect LGBTQ people, we don have to deny religious liberty, and in order to provide protections for religious liberties, we don’t have to deny LGBTQ people,” Gomberg says. “The idea that we do is a fallacy that Utah has dismantled.”

In July, new polling demonstrated the surprisingly the Utah, despite being a conservative state, has the second highest percentage of state population in support for non-discrimination protections for LGBTQ people. The data Public Religion Research Institute from 77 percent of Utah residents support LGBTQ people, which is just behind New Hampshire at 81 percent.

Tyler Deaton, senior adviser for the pro-LGBTQ American Unity Fund, said the Utah agreement demonstrates the possibility of reaching an agreement at the federal level once “second order” issues are put into perspective.

“The first order question has to be how are we winning the culture,” Deaton said. “Do people even want to pass the bill? And if they do, you then figure out the details.”

The American Unity Fund has helped promote as a path forward for LGBTQ non-discrimination at the federal level the Fairness for For All Act, legislation seeking to reach a middle ground on LGBTQ rights and religious freedom. Polling earlier this year found 57 percent of the American public back a bipartisan solution in Congress to advance LGBTQ civil rights.

Supporters of the Equality Act, the more established vehicle for LGBTQ rights before Congress, say the Fairness for For All Act would give too many carve-out for LGBTQ rights in the name of religious freedom. The Equality Act, however, is all but dead in Congress and has shown no movement in the U.S. Senate.

Skeptics of the Utah law would point out the law doesn’t address public accommodations, one of the more challenging aspects in the fight for LGBTQ rights and one or remaining gaps in civil rights protections for LGBTQ people in the aftermath of the U.S. Supreme Court’s decision last year in Bostock v. Clayton County. As a result, it’s perfectly legal in Utah for a business owner to discriminate against LGBTQ coming as patrons.

Williams, however, shrugged off the idea the lack of public accommodations protections in Utah make the agreement in the state makes it any less of a model, making the case the spirit behind the deal is what matters.

“I think copying and pasting Utah’s law doesn’t work for lots of reasons,” Wililams said. “What’s most important is a model of collaboration because when you are sitting around the table with each other — Democrats and Republicans, LGBTQ people and people of faith — that’s when the transformation happens. That is when the mutual respect is really forged.”

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U.S. Federal Courts

U.S. Supreme Court will hear Texas abortion ban- won’t block enforcement

“Every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.”

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Blade file photo by Michael Key

WASHINGTON – The United States Supreme Court Friday ruled that it will hear oral arguments in two separate filings next month over the Texas abortion ban, known as SB8, which bans abortion after six weeks, a point that most women are not even aware they are pregnant. This is also a point that is counter to what the high court has allowed in pervious rulings.

The Court however in granting the petitions declined to enjoin the law prompting Associate Justice Sonia Sotomayor to write in her dissent, “Every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.”

The U.S. Justice Department had filed an emergency writ of centori in United States v. Texas, asking the justices to block enforcement after the U.S. Fifth Circuit Court of Appeals enjoined a lower court ruling that blocked enforcement of the Texas anti-abortion law on Tuesday.

The Justice Department is seeking the high court’s review in order to block the law while legal litigation continues over the controversial law while a lower Federal court in Austin, Texas, addresses the underlying constitutional questions raised in the challenge to the law.

The second case, Whole Woman’s Health v. Jackson, SCOTUSblog journalist Amy Howe reported;

Texas abortion providers have asked the Supreme Court to weigh in on the law’s unusual enforcement mechanism, which deputizes private individuals to bring lawsuits against anyone who either provides or “aids and abets” an abortion. In a rare procedural move, the providers urged the court to take up the question without waiting for a final ruling from the U.S. Court of Appeals for the 5th Circuit, where the case returned after the justices rejected the providers’ earlier request to block the law from going into effect.

Although the providers came to the Supreme Court in late September, the justices did not act on their request to fast-track consideration of their appeal for nearly a month. But shortly after the Biden administration filed its application on Monday to block enforcement of S.B. 8, the court ordered Texas officials to respond in both S.B. 8 cases by noon on Thursday – suggesting that the justices may act on both at the same time.

The court is scheduled to hear oral arguments in a separate high-profile abortion case on Dec. 1. That case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans most abortions after 15 weeks. Mississippi and its supporters have asked the court to overturn Roe v. Wade 

That case Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.

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