March 12, 2018
Last week, in EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit Court of Appeals rejected the religious freedom claim of a funeral home owner who wanted to run his business in accordance with his faith—and did not want to accede to the “gender identity” discrimination claim of an employee who desired to remain an employee while living out his transgendered lifestyle as he saw fit. The case is still ongoing (the appeals court ordered the case remanded for a lower court to continue sorting out), but there’s a very real possibility that business owner Thomas Rost may now be forced out of the marketplace rather than violate his faith.
This is the first federal court case dealing with a Religious Freedom Restoration Act (RFRA) claim in the context of a sexual orientation and/or gender identity (SOGI) nondiscrimination claim (the only other such case is the state-level case of print shop owner Blaine Adamson in Kentucky), and SOGI came out the victor. The concerns of those who have warned of the religious freedom threat of SOGIs are validated by this decision.
The Sixth Circuit, in an opinion authored by Judge Karen Moore, got its analysis wrong on several levels. First, the court claimed it was somehow very clear that Title VII sex discrimination prohibitions include “gender identity”—despite the fact that no court considered such a possibility for decades. Even Supreme Court Justice Ruth Bader Ginburg, writing about the proposed Equal Rights Amendment decades ago, did not take “gender identity” under consideration as she dismissed concerns that sex nondiscrimination provisions could force bathrooms to be opened up to the opposite biological sex. So when the Sixth Circuit says “[n]or can much be gleaned from the fact that . . . statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of ‘gender identity,’ while Title VII does not,” it isn’t very convincing. If it was so clear, no court would ever have rejected the notion that “gender identity” falls under sex discrimination—yet many have.
The court continued to err when it analyzed the religious freedom issue here. The funeral home relied on RFRA as a defense to the SOGI claim, asserting that a sincere religious belief had been substantially burdened. At that point, the EEOC could only have prevailed if it had a compelling government interest which was accomplished through the least restrictive means.
Judge Moore incredibly (and erroneously) claimed it was not a “substantial burden” on religious exercise to “forc[e] [the Funeral Home] to violate Rost’s faith,” which “would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Yet it is an elementary principle of RFRA analysis to observe there is a substantial burden on someone who is told they must compromise their beliefs in order to retain their job. The court accepted that Rost sincerely believed he should not be “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” but then summarily dismissed his concern, concluding that “tolerating [his employee’s] understanding of . . . sex and gender identity is not tantamount to supporting it.”
The court tries to rely on lower federal court adjudications in the HHS mandate contraceptive litigation, claiming that “[m]ost circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.” Yet this second-guessing of religious beliefs has been roundly repudiated by the Supreme Court in Employment Division v. Smith, where the Court observed decades ago that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Moreover, despite citing HHS mandate cases from the lower courts, Judge Moore skips over the fact that when the Supreme Court handled those cases on appeal in Zubik v. Burwell, the justices told the parties to come to a resolution while honoring the religious exercise at issue, rather than flatly dismissing the substantial burden on the religious claimants.
After concluding there was no substantial burden on religious exercise, Judge Moore didn’t need to continue her analysis, but did so anyway, offering her view that it was a compelling interest to force the funeral home to accede to the transgendered employee’s demands: “Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens—to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” The court did not want to “hoist automatically Rost’s religious interests above other compelling governmental concerns.” The Sixth Circuit then concluded that uniform enforcement of sex nondiscrimination provisions without religious exceptions was the least restrictive means to accomplish this compelling government interest of eradicating discrimination.
What are we to make of this? Aside from realizing that judges are not exempt from the temptation to arrive at a conclusion and then craft reasoning to help one get there, the court’s opinion shows us that businesses seeking religious freedom protections need to state clearly and regularly their religious nature (though part of a separate ministerial exemption analysis, the court did hold the business’s lack of numerous and overt religious indicia against it).
More relevant for our current religious freedom concerns, this case shows the inability of RFRA to adjudicate modern religious freedom disputes with certainty, as the statute allows judges the leeway to craft conclusions of their own liking, an even bigger danger when issues of sexuality—on which they want to be on the “right side of history”—are involved in the case.
Finally, and perhaps most significantly, this opinion demonstrates that when RFRA and SOGI claims intersect, the SOGI claims will likely win (and will almost certainly win in the hands of judges under social and cultural pressure to reach a certain result), thus vindicating many who have claimed that SOGI laws themselves are a threat to religious freedom.