Collision of Freedoms

            The liberty principle for this Freedom Friday concerns the conflict between freedom of religion and how to protect gay, lesbian, and transgender workers from discrimination. There has long been a debate between lawmakers and legal experts on whether the laws protect the LGBTQ community, but the decision is going to the Supreme Court. 

Justices announced Monday that they will hear three cases involving employment discrimination claims this fall. Two feature gay men who were fired soon after their employers learned of their sexual orientation, and the third involves a transgender woman who was let go soon after her transition.

The Supreme Court’s eventual rulings will hold significant consequences for LBGTQ employees and their employers, including people of faith, legal experts said….

If justices rule that “sex discrimination” includes sexual orientation and gender identity-based discrimination, religiously affiliated businesses or schools could face lawsuits if they refuse to hire gay or transgender employees. But if the rulings go the other way and limit the scope of sex discrimination protections, LGBTQ workers may have no legal recourse to being fired or mistreated.

            One may ask what the problem is. Title VII of the 1964 Civil Rights Acts “prohibits employment discrimination based on race, color, religion, sex, and national origin.” Since the big problems in 1964 involved “unequal treatment of male and female employees or mistreatment of pregnant workers,” the law did not include mention of the LGBT community.

            Efforts have been made to broaden the interpretation to the rights of the LGBTQ community, but the results have not been consistent. Various Circuit Courts across the nation have made opposing decisions about it. The administration of Barack Obama supported a broad sex discrimination definition, while the Donald Trump administration “argues that sex discrimination does not include discrimination based on sexual orientation or gender identity.”

            Many people that any change to broaden the interpretation of sex discrimination should be done through the legislative branch of the federal government, not the executive branch or the judicial branch. John Bursch, attorney for the Alliance Defending Freedom, is one of them: “Neither government agencies nor the courts have authority to rewrite federal law [to] replace ‘sex’ with ‘gender identity.’”

            A huge obstacle to having Congress solve the problem is the inability of the Democrats and Republicans to work together for the good of Americans. The obstacle appears to be in the state legislatures also because “only 10 of 37 LGBTQ rights bills considered by state legislatures last year had bipartisan sponsorship.” Less than half of the states – 21 of them – currently prohibit employment discrimination because of sexual orientation or gender-identity.

            There is currently a bill in Congress – the Equality Act – that would give protection. It may be passed by the Democrat-controlled House, but it is not expected to pass in the Republican-controlled Senate.

The debate surrounding the Equality Act illustrates how new protections for LGBTQ Americans can clash with religious freedom laws. If it passes, religiously affiliated schools and other faith-based organizations could face lawsuits for refusing to hire gay workers or limiting which facilities transgender students can use, even if these policies were tied to religious beliefs.

            The Justices accepted the three cases for the 2019-2020 Court season that starts in October 2019. Their decisions are not expected the end of June 2020.

            The clash between rights of different groups is not just about employment rights. A case concerning the rights of LGBTQ couples to adopt or foster children through faith-based agencies was recently settled in Michigan.  However, the Becket Fund for Religious Liberty announced this week that it is filing a new case. The organization is suing Michigan and the U.S. Department of Health and Human Services on behalf of St. Vincent Catholic Charities and two adoptive families it served. 

             The reason for the new lawsuit is the belief that faith-based adoption and/or foster care agencies should not “miss out on government contracts simply because they won’t work with same-sex couples for religious reasons.” Mark Rienzi, Becket’s president, made the following statement in this “years-long clash between religious freedom and LGBTQ rights in Michigan and across the country.”

Faith-based agencies like St. Vincent consistently do the best work because of their faith, and we need more agencies like them helping children – not fewer. The actions by the Attorney General of Michigan do nothing but harm the thousands of at-risk children in desperate need of loving homes….

            Apparently, the goal of the LGBTQ community is not to shut down religious-based adoption and foster care agencies but to stop them from receiving tax dollars. They believe that they should be served by organizations that receive tax dollars. Many of the faith-based organizations cannot operate without government contracts and would have to shut their doors.

            I can understand what the LGBTQ community is saying about tax money, and I can understand why the faith-based organizations are concerned putting children with members of their faith community. However, it is the good of the children that must be considered. It would be really nice if a solution could be made that would do right by the children. I do not know if there is a solution that would serve both communities well.