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Federal court rules Catholic High School violated Title VII protections

“The court sent a clear message that Charlotte Catholic violated Title VII’s prohibition on sex discrimination when it fired Mr. Billard.”

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Charles R. Jonas Federal Building, Charlotte, NC (Photo Credit: GSA)

CHARLOTTE, N.C. – U.S. District Court Judge Max O. Cogburn Jr. ruled Friday, Sept. 3 against the Charlotte Catholic High School in a case brought by Lonnie Billard, a substitute teacher, who was fired after he announced his plans in a Facebook post in 2014 to marry his longtime same-sex partner.

Judge Cogburn in his ruling on Billard v. Charlotte Catholic High School, pointed to the June 2020 U.S. Supreme Court decision Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects gay or transgender employees from discrimination; and held that the “ministerial exception” to Title VII protections set out in Our Lady of Guadalupe v. Morrisey-Berru did not apply to the secular role Billard played in teaching English and Drama classes.

“After all this time, I have a sense of relief and a sense of vindication. I wish I could have remained teaching all this time,” said Billard, “Today’s decision validates that I did nothing wrong by being a gay man.”   

“Today’s decision is one of the first applications of the Supreme Court’s ban on sex discrimination to employees of private religious schools,” said Irena Como, senior staff attorney at the American Civil Liberties Union of North Carolina. “The court sent a clear message that Charlotte Catholic violated Title VII’s prohibition on sex discrimination when it fired Mr. Billard for announcing his engagement to his same-sex partner. Religious schools have the right to decide who will perform religious functions or teach religious doctrine, but when they hire employees for secular jobs they must comply with Title VII and cannot discriminate based on sexual orientation.”

The case will now proceed to trial to determine the appropriate relief for Mr. Billard. He is represented in the lawsuit by the ACLU LGBTQ Project, the ACLU of North Carolina, and the law firm Tin Fulton Walker & Owen.

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U.S. Federal Courts

U.S. Justice Dept. seeks Supreme Court review on Texas abortion ban

“Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution”

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U.S. Supreme Court (Blade file photo by Michael Key)

WASHINGTON – U.S. Justice Department lawyers filed an emergency appeal Monday with the U.S. Supreme Court after the U.S. Fifth Circuit Court of Appeals enjoined a lower court ruling that blocked enforcement of the Texas anti-abortion law.

The Justice Department is seeking the high court’s review in order to block the law while legal litigation continues over the controversial law that bans abortion after six weeks, a point at which many women are unaware they are pregnant.

The Biden administration wants to block the law’s enforcement while a lower Federal court in Austin, Texas, addresses the underlying constitutional questions raised in the challenge to the law.

Last week in a late night filing the Justice Department petitioned the U.S. 5th Circuit Court of Appeals to reverse its ruling that allows the controversial Texas abortion ban law known as SB8 temporarily reinstated.

In its brief Justice Department attorneys argued that if the law is upheld, states could violate any right provided they left enforcement up to private citizens and not the state itself. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department stated then added, “A stay would prolong [the law’s] substantial harm to the United States’ sovereign interests and would disserve the public interest.”

In a late Friday evening ruling two weeks ago, a three Judge panel of the U. S. Fifth Circuit Court of Appeals temporarily overturned an injunction issued by U.S. District Court Judge Robert Pitman that had blocked Senate Bill 8, the Texas abortion ban, from being enforced.

A three-judge panel of the 5th Circuit released a one-paragraph order last Thursday allowing the law to remain in effect after the appeal by the Justice Department.

In its appeal the lawyers for the Justice Department argued that the law “is plainly unconstitutional under this court’s precedents […] And Texas’s insistence that no party can bring a suit challenging S.B. 8 amounts to an assertion that the federal courts are powerless to halt the state’s ongoing nullification of federal law. That proposition is as breathtaking as it is dangerous.”

Because the case was filed on the high court’s emergency docket, the justices are likely to move swiftly legal experts say – possibly within a matter of days – to take it up. 

Writing in his 113 page order, U.S. District Court Judge Robert Pitman, who blocked enforcement of S.B. 8 labeled the law an “offensive deprivation of such an important right” referring to women’s reproductive rights then added;

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman also took aim at the provisions in the law that allows any private individual to sue abortion providers or those who aid and abet procedures that violate the law. Successful litigants can collect $10,000 under the law’s provisions.

“The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion,” he wrote.

Pitman then called out the Republican lawmakers who drafted the measure: “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers, notably its author, State Senator Bryan Hughes, to “find another way” around resistance to enforcement of laws criminalizing abortion.”

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U.S. Federal Courts

Tennessee lesbian rejected by refugee foster care program files suit

There are more unaccompanied refugee children in the federal government’s care than there are eligible foster homes available

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U.S. District Court for the District of Columbia (Photo Credit: U.S. Courts/GSA)

WASHINGTON – Americans United for Separation of Church and State and Lambda Legal, together with the law firm Orrick, Herrington & Sutcliffe LLP, filed a federal lawsuit Wednesday against the U.S. Department of Health and Human Services for enabling discrimination against LGBTQ foster parent applicants by organizations that receive taxpayer funds to care for unaccompanied refugee children.

The case, Easter v. HHS, was filed on behalf of Kelly Easter, from East Nashville, Tenn., who wishes to become a foster parent for a child in a federal foster care program for immigrant children.

Easter’s inquiry to the U.S. Office of Refugee Resettlement (ORR) was directed to the only entity participating in the program in her area: Bethany Christian Services, a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services.

Bethany refused to permit Easter to apply to be a foster parent solely because she is a lesbian. Easter reported this discrimination to ORR. When Bethany’s national leadership announced earlier this year that it had changed its policy and would now accept LGBTQ families, Easter again attempted to apply.

However, a representative from Bethany informed her that she still would not be permitted to apply to the program near her home because Bethany operates that program as a sub-grantee of USCCB, which continues to exclude LGBTQ foster parent applicants from participation. 

For years the federal government has known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families. Yet HHS officials continue to enable and sanction this discrimination.

“I am heartbroken. It hurt to be turned away – twice – solely because of my identity. I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me. I also know that LGBTQ people can have thriving families and that they are as important and deserving as any other. How can the government tell me that my beliefs are wrong?” Easter said.

Kelly Easter via Facebook

“But I’m more concerned about the children. The federal government is supposed to be helping them, but by denying a loving home to a child or young person in need, they are not doing that; they are actually hurting them. I am qualified and can provide a safe and stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?” She added.

“There are more unaccompanied refugee children in the federal government’s care than there are eligible foster homes available for these children. By allowing USCCB to require its subgrantees to use religion to discriminate against LGBTQ people, the federal government is harming prospective parents and vulnerable children who are denied the opportunity to find safe, loving homes. By sanctioning and enabling discrimination and favoring certain religious beliefs, the government is violating the First and Fifth Amendments of the U.S. Constitution.” a spokesperson for Lambda Legal said in an emailed statement.

Karen L. Loewy, senior counsel at Lambda Legal added: “The federal government cares for thousands of immigrant children in foster care programs. Ms. Easter would like to provide a safe and nurturing home to a child in need. However, our government excludes her from applying by knowingly funneling millions of dollars of taxpayer money into a child welfare organization that refuses to allow LGBTQ people to apply to be foster parents. This kind of discrimination not only hurts the people turned away—it hurts the children in these programs by reducing the number of available homes, and depriving these children of the opportunity to be considered for placement in loving homes that may best serve their individual needs.”

“The foundational American principle of church-state separation promises freedom without favor and equality without exception for everyone. The federal government is reneging on that constitutional promise by allowing a taxpayer-funded agency to discriminate against Kelly Easter because she doesn’t live according to its religious beliefs,” Rachel Laser, president and CEO of Americans United for Separation of Church & State said.

“Our laws cannot allow anyone to use their religious beliefs to harm others, and especially not vulnerable children and the commendable people like Kelly who want to help them,” she added.

The lawsuit was filed in the U.S. District Court for the District of Columbia, where another case of the federal government permitting discrimination against prospective foster parents who are a same-sex couple is pending. 

In Marouf v. HHS, a sub-grantee of USCCB rejected Fatma Marouf and Bryn Esplin from applying to foster unaccompanied refugee children because, as a married same-sex couple, they didn’t “mirror the Holy Family,” as the agency requires. Lambda Legal and Americans United also represent Marouf and Esplin.

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U.S. Federal Courts

Justice Department asks appellate court to suspend Texas abortion ban

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind”

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Robert F. Kennedy Department of Justice building, Washington D.C. (Photo Credit: U.S. Government/GSA)

NEW ORLEANS – In a late night filing the U.S. Department of Justice petitioned the U.S. 5th Circuit Court of Appeals to reverse its ruling that allows the controversial Texas abortion ban law known as SB8 temporarily reinstated.

In its brief filed Monday evening, Justice Department attorneys argued that if the law is upheld, states could violate any right provided they left enforcement up to private citizens and not the state itself. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department stated then added, “A stay would prolong [the law’s] substantial harm to the United States’ sovereign interests and would disserve the public interest.”

In a late Friday evening ruling last week, a three Judge panel of the U. S. Fifth Circuit Court of Appeals temporarily overturned an injunction issued by U.S. District Court Judge Robert Pitman in Austin, Texas this past Wednesday night that had blocked Senate Bill 8, the Texas abortion ban, from being enforced.

Attorneys for the state of Texas had filed a request with the appellate court earlier in the day Friday. The state’s attorneys argued that Pitman’s order to temporarily block enforcement of the state’s abortion ban “violates the separation of powers at every turn.”

“The Department of Justice’s request is on strong legal ground. SB 8 violates clearly established constitutional law, and the Fifth Circuit’s stay is a blatant attempt to elevate politics over the law,”   Shannon Minter, Legal Director for the National Center for Lesbian Rights told the Blade in an email Tuesday.

The ruling to suspend Pitman’s injunction came just one day after clinics across Texas began rushing to serve patients again for the first time since early September.

Senate Bill 8 went into effect Sept. 1, forcing all major abortion clinics to stop offering abortions after an embryo’s cardiac activity is detected, which can happen before many people know they’re pregnant. Some providers stopped offering the procedure altogether out of fear of litigationthe Texas Tribune reported.

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