Analysis Law and Policy

Trump Nominee Leads Three-Pronged Attack on Laws Protecting LGBTQ Residents of Austin

Lisa Needham

If one of the cases reaches the Supreme Court, the conservative majority there could possibly rule in favor of a scenario where Title VII is declared forever off-limits to LGBTQ people seeking fairness in the workplace.

As in dozens of other states, LGBTQ people in Texas have no statewide protections against housing or employment discrimination. Some Texas cities, however, have passed anti-discrimination ordinances designed to safeguard their rights. But now, some of those ordinances are under attack—potentially robbing elected city officials of their ability to protect LGBTQ residents amid an increasingly hostile climate.

Austin is one of the cities that extends housing and employment protections to LGBTQ people. This has religious conservatives in Texas up in arms, and they’ve mounted a three-pronged attack on the ordinances. They’re fighting Austin in state court, in federal court, and at the administrative level via suing the Equal Employment Opportunity Commission (EEOC). All three cases were filed within three days earlier this month. They’re all helmed by the same conservative attorney, Jonathan F. Mitchell, who served as Texas’ solicitor general from 2010 to 2015 and who is currently Trump’s nominee for the chairperson of Administrative Conference of the United States, which oversees efficiency and fairness of federal regulatory programs.

In state court, the plaintiff is Texas Values, exactly the kind of group you would expect to be bringing this sort of lawsuit. It has fought for Texas textbooks to continue to include material about the state’s Christian heritage; former Minnesota Rep. Michele Bachmann (R) is the keynote speaker at its upcoming gala; and it frequently fearmongers about trans-inclusive bathroom policies.

In this case, Texas Values alleges that the Austin ordinance violates the state’s Religious Freedom Restoration Act (RFRA) and the Texas Constitution, as it doesn’t provide an exemption for employers who aren’t affiliated with a church but nonetheless want the right to discriminate against LGBTQ people based on their “sincerely held” religious beliefs.

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The Austin anti-discrimination employment ordinance already contains exemptions designed to allow religious organizations and other corporations to discriminate against LGBTQ people. First, there is a “bona fide occupational qualification” exception. If a company is hiring for a job where someone’s sex, sexual orientation, or gender identity are a necessary component of the qualifications for the position, discrimination is acceptable. One example of a permissible gender-based bona fide restriction would be hiring only male models to model male clothing. This exception applies to all businesses, regardless of religious affiliation. Next, religiously affiliated schools may limit their hiring to individuals of a specific religion if that school is “directed toward the propagation of a particular religion.” That exception also applies to religious corporations, associations, or societies. In other words, churches and church-affiliated organizations can limit their hiring to members of their own religion: members who presumably share their goal of discriminating against LGBTQ individuals and are, obviously, unlikely to be a member of the LGBTQ community.

This is not enough to satisfy Texas Values, however. It argues that those exceptions are inadequate because they do not allow private corporations that are not affiliated with a church to discriminate. The complaint calls these companies “employers that operate in accordance with sincerely held religious beliefs” that being gay or trans is immoral.

Unlike common designations—such as a corporation, a nonprofit, or a limited liability partnership—there is no such corporate entity as “a company that operates in accordance with religious beliefs.” It’s a relatively recent invention of conservatives who wish to participate in the marketplace yet still discriminate. Texas Values wants anti-LGBTQ employers to be able to “refuse to hire practicing homosexuals or transgendered people, refuse to extend spousal benefits to same-sex partners or spouses of employees, [and] refuse to open their sex-specific restrooms to members of the opposite biological sex.” In other words, it wants private corporations to have an absolute and widespread right to discriminate based on an owner’s personal religious beliefs—an exception that would basically swallow the ordinance whole.

Texas Values also takes issue with Austin’s housing anti-discrimination ordinance, which declares that people have an inalienable right to obtain housing without regard to their sexual orientation, gender identity, marital status, or familial status. As with the employment ordinance, there is an exemption for religious groups. Any religious organization or a nonprofit institution that operates in conjunction with a religious organization can discriminate by housing only members of its religion. Texas Values wants to allow private landlords to discriminate against people that participate in “nonmarital sex or homosexual behavior.”

The mention of “nonmarital sex” highlights the fact that groups like Texas Values don’t just want to discriminate against LGBTQ people. They want the right to discriminate based on familial or marital status—to allow private landlords to refuse to rent to unmarried couples. This would be a startling leap backward.

Though the complaint doesn’t mention the case by name, it is clear that the United States Supreme Court’s deeply confused decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission gave organizations like Texas Values some grist for this particular mill. That decision found that the Colorado commission had been “hostile” to religion in assessing the actions of Masterpiece Cakeshop, which had refused to make a cake for a gay couple. Though the decision was a narrow and procedural one, conservative groups seem to have taken it as a green light to push against anti-discrimination laws.

In federal court, meanwhile, the plaintiff is the U.S. Pastor Council. It’s largely the same complaint, though the Pastor Council approaches it from the angle of employment by churches. The council says it relies “on the Bible rather than modern-day cultural fads” and therefore refuses to hire LGBTQ people. It also notes that many of its members, such as Catholics and conservative evangelical Christians, do not allow women to be pastors.

The Pastor Council’s argument is that the exception that allows religious institutions to restrict their hiring to members of their own religion is not broad enough, and would force them to hire LGBTQ people as clergy. The council argues, for example, that under the ordinance, a Catholic church could require priests to be Catholic, but would not be able to keep Catholic women or Catholic LGBTQ people from the priesthood. This is a fairly tortured reading of the ordinance. Given that the Catholic Church ordains people at a level far above individual churches—and refuses to ordain women or openly LGBTQ people when it does so—it’s absurd to assert that one city’s ordinance would force a wholesale revolution in its ranks.

As far as the relief sought, the Pastor Council would like the federal district court to declare that its member churches have a constitutional right to exclude LGBTQ people from being clergy and church employees. They’d also like the court to declare that its member churches have a constitutional right to hire only male clergy.

As appalling as they are, these two lawsuits are based on rather predictable assertions about the right of corporations to discriminate and follow in the tradition of the anti-birth control Burwell v. Hobby Lobby case and the anti-LGBTQ stance taken by the plaintiff in Masterpiece Cakeshop. It’s the third case, where the Pastor Council has sued the EEOC and Attorney General Jeff Sessions, that presents a new, increased threat.

In that case, the Pastor Council takes aim at the EEOC’s current interpretation of Title VII of the Civil Rights Act of 1964. The EEOC currently interprets Title VII’s prohibition against discrimination on the basis of sex to also prohibit discrimination based on sexual orientation or gender identity. Similarly, the EEOC interprets the law to bar workplace discrimination against same-sex married individuals and mandates that employers allow transgender individuals to use the bathroom conforming with their gender identity. Of course, because the EEOC is an agency, not Congress, that interpretation is not binding on the states; many continue to have laws on the books allowing people to be fired for being LGBTQ.

In this lawsuit, the Pastor Council acknowledges that the Supreme Court has upheld, under the First Amendment, what is known as a “ministerial exception”, which allows churches to restrict their selection of ministers based on the tenets of their religion. That exception, this lawsuit notes, “protects the Catholic Church from being forced to hire women as priests.” Oddly, this stands in direct opposition to the allegations in the Pastor Council’s other federal lawsuit, which asserts that Austin’s ordinance would force the Catholic church to hire women.

Regardless, the real issue here isn’t about the ability of churches and church-affiliated organizations to restrict their hiring. Rather, it is about the same thing as the other two lawsuits: the right of private nonreligious organizations to refuse to hire LGBTQ people. To make that argument, this case also involves a private plaintiff: Hotze Health and Wellness Center. Though not connected with any religious institution, the owner of the company is an evangelical Christian who doesn’t want to hire LGBTQ people or provide benefits to same-sex married couples. The plaintiffs seek a declaration that the federal RFRA trumps any interpretation of Title VII that forbids discrimination based on sexual orientation or gender identity.

The suit against the EEOC is a depressingly savvy move by Mitchell and the Pastor Council. The EEOC’s guidance and litigation affirming these Title VII protections all precede the Trump administration. By naming Attorney General Sessions in the lawsuit, the Pastor Council is practically inviting Sessions and the Department of Justice (DOJ) to agree with its stance. The DOJ has already reversed its Obama-era positions in approximately a dozen cases and argued on behalf of the conservative religious plaintiff in Masterpiece Cakeshop. Worse still, under Sessions the DOJ filed an amicus brief supporting the defendant in Zarda v. Altitude Express, a U.S. Court of Appeals for the Second Circuit case that held discrimination based on sexual orientation is discrimination on the basis of sex and therefore violates Title VII. (The defendant in Zarda has petitioned for certiorari to the United States Supreme Court, and that petition is pending.) The Pastor Council’s lawsuit presents a way for the DOJ to either refuse to defend the pro-LGBTQ interpretation of Title VII or to outright oppose that position.

Were the Pastor Council to prevail in this lawsuit, it would have the effect of undermining the Austin anti-discrimination employment ordinance, as it would be a declaration from a federal court that the protections of Title VII do not apply to LGBTQ individuals, at least in Texas. And, given that Texas is part of the conservative U.S. Court of Appeals for the Fifth Circuit, it’s likely that an appellate decision would impose this on other states in the circuit as well.

Taken together, these three cases represent a dangerous attack on Austin specifically and municipalities generally. If Texas Values or the Pastor Council wins, it forces municipalities in Texas to conform to a conservative anti-LGBTQ stance, even when the citizens of that municipality have voted for elected officials that wish to protect LGBTQ people against discrimination. Without a doubt, the federal cases have been undertaken because the Pastor Council can reasonably assume that if a case reaches the Supreme Court, the conservative majority will rule in its favor—possibly creating a scenario where Title VII is declared forever off-limits to LGBTQ litigants seeking fairness in the workplace.

Municipalities should have the right to reflect the values of the majority of their constituents rather than a vocal minority of evangelical Christians who are looking for a license to discriminate. If any of these cases succeed, however, that is exactly what private companies run by those evangelical Christians will have.

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