Two conservative Christian groups in Texas believe that businesses and employers have the legal right to discriminate against LGBTQ workers on religious grounds, and they’re trying to get the courts to back them up.
The US Pastors Council and Texas Values, two nonprofit evangelical groups, filed multiple lawsuits in state and federal court this week, claiming that Christian businesses and churches have a constitutional right to fire — or not hire — LGBTQ workers.
One lawsuit challenges the federal Civil Rights Act, which makes it illegal for employers to discriminate against job candidates and workers based on their religion, sex, gender, and race. Two other lawsuits seek to strike down part of an Austin city ordinance that prohibits employers from discriminating against similar groups, and explicitly includes protections based on “sexual orientation” and “gender identity.”
In one of the lawsuits filed Saturday against the city of Austin, lawyers for Texas Values said the organization will not comply with the law.
“Texas Values will not hire or retain practicing homosexuals or transgendered people as employees, because their lifestyles are contrary to the biblical, Judeo–Christian understandings of sexuality and gender that Texas Values seeks to promote,” they wrote in the complaint.
The lawsuits mark a new front in the evangelical battle against the LGBTQ civil rights movement. Both right-wing Texas groups were outspoken in the fight against the spread of so-called “bathroom bills,” which allow transgender individuals to use public restrooms designated for their identified gender.
While state and federal laws do allow individuals — and business owners — to exercise their religious beliefs, it will be hard for employers to make the case that religious freedom allows them to ignore civil rights laws.
Federal law doesn’t exempt religious groups from anti-discrimination laws
The US Pastors Council wants the courts to exempt Christian employers from discrimination protections in the Civil Rights Act of 1964. The landmark law made it illegal for most employers to deny job opportunities to individuals based on their race, gender, religion, and other protected traits.
The law does carve out an exemption for churches when it comes to hiring clergy members. For example, a Catholic parish can’t be sued for refusing to hire a female priest.
But the Pastors Council believes that exemption should be expanded even more, so that churches and Christian-owned businesses are not forced to hire LGBTQ workers at all or to provide benefits to an employee’s same-sex spouse.
“The Bible repeatedly and explicitly condemns homosexual behavior,” the council wrote in its complaint. They argue that this is enough basis for the courts to issue an injunction banning the federal government from “enforcing anti-discrimination policies of this sort against any employer that objects to homosexual or transgender behavior on religious grounds.”
The pastors also filed the lawsuit on behalf of all Christian-owned businesses, including the Hotze Health & Wellness Center in Houston, Texas, whose owners believe that homosexuality is a “gross sin,” according to the court filing.
The council, which says it represents 1,000 churches, is making the case that the First Amendment and federal law give Christian employers the right to discriminate. But their case is pretty weak.
The Supreme Court foreshadowed this
The US Pastors Council says Christian employers are allowed to discriminate against LGBTQ workers based on protections in the Religious Freedom Restoration Act.
The federal law, enacted in 1993, sets a high standard for government legislators when writing laws that might burden a person’s right to exercise their religion. The act states that such a law must further a “compelling government interest” and must be tailored to minimize the burden on individual religious practices.
The law has generally been used to analyze other laws that might infringe on an individual’s religious freedom. But in a controversial 2014 ruling, the US Supreme Court extended the protection to Christian-owned corporations. In that case, Burwell v. Hobby Lobby, the arts and crafts superstore chain challenged the Affordable Care Act’s contraceptive mandate, which required businesses to offer health insurance plans that covered the cost of birth control.
David Green, the evangelical owner of Hobby Lobby, objected to the mandate on the grounds that he was religiously opposed to paying for employees’ use of a form of contraception known as the “morning-after pill.” He considered this type of contraception similar to abortion.
The Supreme Court narrowly ruled in his favor, in a 5-4 decision. Justice Samuel Alito, in writing the majority opinion, said that the federal government had a compelling goal in crafting Obamacare’s contraceptive mandate: giving women free access to family planning services. But Alito argued that the government could achieve that goal without infringing on a business owner’s religious views. The government, for example, could pay for the contraception, or provide an exemption to businesses whose owners object to contraception on religious grounds.
The ruling was the first time the Supreme Court had extended the act’s individual religious freedom protection to a for-profit company.
That’s why the case raised so much alarm among LGBTQ advocates, who viewed it as potentially opening the door for businesses to discriminate against gay and transgender employees on the grounds that an employer is exercising religious beliefs.
However, in response to these concerns, Alito made clear that the court’s decision did not mean businesses could do such a thing. “This decision concerns only the contraceptive mandate and should not be understood to … provide a shield for employers who might cloak illegal discrimination as a religious practice,” Alito wrote in the majority opinion.
That same view was reiterated in the court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado cake shop owner refused to make a wedding cake for a same-sex couple, based on the owner’s religious objection to same-sex marriage.
Though the court ruled in favor of the business owner, the majority said it did so because the Colorado government showed clear anti-religious bias when handling the case. Justice Anthony Kennedy, who wrote the majority opinion, made clear that religious beliefs do not justify discrimination against LGBTQ individuals.
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.
These two cases show the legal hurdles that the Texas evangelical groups will need to overcome in their latest anti-LGBTQ battle. Even if Texas courts rule in their favor, it will be hard to convince the Supreme Court (even with a conservative majority) that religious freedom allows employers to fire — or refuse to hire — millions of Americans who identify as LGBTQ.