Over the next nine months, the U.S. Supreme Court will likely deliver some historic decisions in the ongoing clash between religious liberty protections and LGBTQ-related anti-discrimination laws.
The high court is hearing arguments this month surrounding the question of how the term sex should be interpreted in federal civil rights employment law. Does it mean what it meant to the general public in 1964 when the Civil Rights Act was passed? In other words, male and female? Or has the meaning expanded to include all varieties of sexual orientation and gender identity?
How the court decides will affect not only secular employers, say lawyers watching the case, but how women and girls are regarded in laws meant to guarantee fair and equal treatment, and, potentially, even religious organizations and their right to hire according to their mission and beliefs.
Also, expectations are high that the high court would opt to hear next spring, once again, a case directly pitting religious liberty claims against public accommodation laws pertaining to gay and transgender rights. Close observers of religious liberty cases think the court might hear the case of 74-year-old floral shop owner Barronelle Stutzman, a devout Christian who serves and hires LGBTQ people but declines to create custom arrangements for gay weddings on religious grounds. She has been subject to litigation by the state of Washington and the American Civil Liberties Union (ACLU) since 2013.
That means that between now and the end of next June, the Supreme Court will deliver at least one significant ruling in a case that could have sweeping effects, especially on employers with conservative religious beliefs, and several other cases that, if the high court opts to hear them, could bring significant clarity to questions of government encroachment on religious freedom and free speech.
What’s the meaning of the word sex in civil rights law?
In R.G. & G.R. Harris Funeral Homes v. EEOC, a case being argued this month alongside two similar cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, the central question, according to the defense, should be a simple one: Did Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on race, color, religion, national origin and sex, encompass gender identity and sexual orientation when it added sex as a final category?
The federal Equal Employment Opportunity Commission (EEOC), joined by the ACLU, sued the Detroit-area Harris Funeral Homes in 2013 on grounds of sex discrimination after the business fired a funeral director, Anthony Stephens, who informed them in a letter that he would begin presenting as a woman named Aimee.
After considering Stephens’ request, Harris Funeral Homes owner, Thomas Rost, concluded that the prospect of Stephens, who had worked for him for six years, dressing as a woman while serving grieving families would be a distraction to clients during a sensitive time.
“After much thought in processing the letter I received six years ago,” Rost wrote in an op-ed in the Washington Post, “I determined we could not go along with what it proposed. The focus of our business and our policies needed to remain on respecting the needs of the grieving families we serve.”
Lawyers with Alliance Defending Freedom (ADF), which is representing Rost, say he was concerned also that Stephens would be sharing a women’s restroom with an 80-year-old female colleague.
John Bursch, ADF senior counsel and vice president of appellate advocacy, briefed a group from the Federalist Society on the case last summer, noting that although Rost considers his employees like family and was “very concerned for Stephens, as well as for Stephens’ wife,” he made his decision based on the mission of the business, which is to serve families in their grief.
“Many of these are repeat clients,” Bursch told the group, according to a transcript of the briefing. “So that means someone who came in because their mother died in January and saw Anthony Stephens might come back in July because their father died and see Aimee Stephens.”
In 2018, the U.S. 6th Circuit Court of Appeals ruled that the government had a right to force the business to allow Stephens to present himself as Aimee on the job.
The case has gotten wide media attention, and the arguments on behalf of Harris Funeral Homes have attracted a broad array of supporters.
Friend-of-the-court briefs filed on their behalf have come from diverse quarters: an Orthodox Jewish group, Muslims, a long list of conservative Christian organizations and the Women’s Liberation Front, which describes itself as an “all-volunteer group of radical feminists.” The feminist group cites concerns that civil rights gains for women and girls would be lost if the court were to find an expanded definition of sex discrimination in the 1964 law. The Billy Graham Evangelistic Association has also filed a brief supporting the Harris side.
The concerns of feminist groups about losing hard-fought civil rights protections for females have gained traction as top female athletes have lost competitions in sports, such as weightlifting and track and field, to biological male athletes identifying as females.
In Connecticut, for example, the federal Office of Civil Rights is investigating the state’s public school transgender athlete policy after three top female track athletes lost competitions to two biological males. The families, also represented by ADF, say Connecticut is violating federal laws governing state-sponsored sports, and has potentially cost the female athletes scholarship offers while the biological males have set state female track records.
Kate Anderson, ADF senior counsel who is working alongside Bursch on the Harris case, says similar problems will become common in school-related settings like dormitories and in women’s shelters if the term sex is recast by the high court to mean what it clearly didn’t mean in 1964.
Anderson also points to a case in which a federal court intervened to stop Anchorage, Alaska, from forcing a shelter for abused women—some of whom had been victims of sex trafficking—to allow a biological male nighttime access to the shelter.
“The city wanted to force this shelter to allow men who identify as women to come in and sleep literally about three feet from women, many of whom have experienced rape and trauma,” Anderson explained.
Todd Chasteen, vice president and chief counsel for Samaritan’s Purse, who has filed numerous briefs in religious liberty cases at the Supreme Court, says a ruling that expands Title VII would affect every federal statute and would quickly place religious organizations in the crosshairs.
“This really comes down to the issue of the 1964 Civil Rights Act, what does it say? The question is, will they make the right decision? And I think they will,” though he added a caveat—“judicial activism is alive and well.”
His optimism stems from two opinions written by federal judges, one liberal and one conservative, who both agree that only Congress can change the 1964 Civil Rights Act to make sex mean anything other than male and female. The liberal judge, Gerard Lynch, appointed first by President Clinton and later by President Obama, argued in a 74-page dissent against expanding Title VII by judicial fiat. Lynch took direct aim at the idea that Congress in 1964 meant anything other than male and female when referring to the term sex.
“Because,” Lynch wrote, “we all know Congress meant no such thing.”
Can Government Compel Speech?
When the Supreme Court ruled in 2018 that the state of Colorado had violated Christian baker Jack Phillips’ religious liberty by showing hostility toward his beliefs in the Masterpiece Cakeshop case, attorneys for Stutzman, the Washington florist, were optimistic.
The high court had heard Phillips’ case, with similarities to Stutzman’s, and had instructed the Washington state Supreme Court to revisit the state’s case against Stutzman in light of the ruling for Phillips. What the high court didn’t clarify in the Masterpiece case was whether the government could force Phillips to use his creative abilities to celebrate a cause he objected to on religious grounds.
Yet, when the Washington Supreme Court revisited Stutzman’s case, it asked a narrow question: Had the state’s judges and adjudicators shown religious animus toward her? On June 6, the state Supreme Court announced a unanimous ruling that it had found no such hostility, even though ADF contends that the state’s attorney general has been openly hostile to her beliefs, targeting Stutzman personally as well as professionally while turning a blind eye to clear instances of anti-Christian bigotry from business owners in the state. The state began targeting Stutzman after she declined to participate in the gay wedding of a longtime customer, Rob Ingersoll, in 2013. Instead, Stutzman says she politely offered referrals to other reputable florists.
Through six years of legal battles, Stutzman has had to take time away from her business, Arlene’s Flowers, to tend to the case and has endured threats and public scorn from left-wing activists. She also faces the possibility of having to pay legal fees for ACLU attorneys if she were to lose at the Supreme Court—a prospect her attorneys say could bankrupt her and her husband and destroy her business.
ADF Attorney Kristen Waggoner, who has represented Stutzman from the beginning and also argued the Masterpiece case on behalf of Phillips, is hopeful the high court will decide this fall to finally hear Stutzman’s case in the spring.
A favorable ruling in August by the U.S. 8th Circuit Court of Appeals for a Christian-run wedding videography business may help encourage the high court to take Stutzman’s case.
Waggoner says that while the Harris case will determine questions around the “core components of human sexuality and what it means,” Stutzman’s case and others like it are determining whether citizens have the right to disagree with the government, and if they do disagree, will they still be able to discuss their opinions in the public square?
Photos: Alliance Defending Freedom