Three lawsuits filed within days of each other in Texas could affect religious liberty cases nationwide if the challenges to LGBT nondiscrimination regulations get a hearing in their respective courts.
A coalition of pastors and a conservative legal advocacy group are using a multipronged strategy to challenge nondiscrimination laws at the state and federal level that do not have exemptions for people who believe in a Biblical definition of marriage and sex.
The U.S. Pastor Council and Texas Values sued on Oct. 6 and 8, respectively, challenging Austin’s 36-year-old civil rights ordinance prohibiting discrimination based on sexual orientation. Austin amended the law in 2004 to include discrimination against transgender persons.
Both organizations declined interviews, but attorney Jonathan Mitchell said in court documents that the city’s pro-LGBT ordinance prohibits employers from acting on their sincerely held religious beliefs, a violation of the Texas Constitution and the state’s Religious Freedom Restoration Act.
“Every church in Austin that refuses to hire practicing homosexuals as clergy or church employees is violating city law and subject to civil penalties and liability,” Mitchell said in USPC v. Austin.
In addition to hiring concerns, Texas Values v. Austin challenges employers’ obligation to provide spousal benefits to same-sex couples—a matter the U.S. Supreme Court did not address in Obergefell v. Hodges, the 2015 decision legalizing same-sex marriage nationwide. The Obama administration required federal agencies to amend their regulations to reflect the new marriage standard, a standard Texas Values has argued must come through legislatures, not courts or executive orders.
Austin officials defended the law in a statement: “The ordinance reflects our values and culture respecting the dignity and rights of every individual. We are prepared to vigorously defend the City against this challenge to the City’s civil rights protections.”
Those protections do not extend to people of faith, Mitchell argued. The federal government and many, but not all, states have Religious Freedom Restoration Acts (RFRAs) similar to Texas’ that require the government to use the least restrictive means to advance its interests when First Amendment rights are at stake. But it’s unclear whether the courts will apply that standard, called strict scrutiny, in LGBT nondiscrimination cases.
“If the Texas RFRA applies, it means that the Austin ordinance has to survive strict scrutiny when there’s a substantial religious burden, and, I think, there is a very substantial religious burden on the plaintiffs,” Carl Esbeck, professor emeritus of law at the University of Missouri, told me. “So that’s a difficult burden for a defendant to overcome.” Esbeck also said that because neither of the plaintiffs challenging Austin’s ordinance cite any actual or imminent harm from the law, Austin’s attorneys could argue they have no standing to sue.
The third case argues the federal Equal Employment Opportunity Commission’s application of Title VII of the Civil Rights Act lacks sufficient religious exemptions for employers who hold a Biblical view of the biological differences between men and women.
Inevitably, the Supreme Court will be asked to settle the conflicts stemming from the legalization of same-sex marriage and the Obama administration’s push for transgender accommodations, Esbeck said, adding that the court that ruled 5-4 in favor of same-sex marriage is “not the same court you and I have today. Which makes it all the more difficult for the honest lawyer to say how this court is going to rule on this question.”