Liberties Reporting on First Amendment freedoms

A Texas-size defense of religious liberty

Religious Liberty | A trio of cases argues for exemptions to LGBT nondiscrimination laws
by Bonnie Pritchett
Posted 10/23/18, 02:34 pm

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.”

Alliance Defending Freedom Alliance Defending Freedom Angel and Carl Larsen

Risky business

Lawyers for Christian wedding videographers Carl and Angel Larsen of St. Cloud, Minn., argued their case for religious liberty last week before the 8th U.S. Circuit Court of Appeals. The Larsens, represented by Alliance Defending Freedom (ADF), are suing Minnesota’s Human Rights Commission over its Human Rights Act, claiming it would penalize them for making films that are in line with their convictions on marriage. U.S. District Judge John Tunheim initially dismissed their case.

The Larsens started their videography business in 2008 but hadn’t launched any wedding-related services specifically because of the law, which would require them to make videos supporting same-sex marriage as well as ones promoting Biblical marriage, according to ADF. If found in violation of the law, the Larsens could face payment of a civil penalty to the state, triple compensatory damages, punitive damages, and up to 90 days in jail.

“When I heard about the law that was passed in Minnesota, I was deeply concerned because I wanted to be able to tell stories that are consistent with the mission of our business,” Carl Larsen said in a video released by ADF about the case.

ADF attorneys have filed a handful of preemptive cases on behalf of clients trying to establish an exception to their states’ sexual orientation and gender identity laws before venturing into a wedding services business. By suing the states, business owners hope to avoid the financial burden and potential loss of business that could come with being sued for refusing to provide services for a same-sex wedding on religious grounds. —Rachel Lynn Aldrich

iStock.com/bigtunaonline iStock.com/bigtunaonline

Right to free tweets?

Earlier this month, the U.S. Supreme Court agreed to hear a case that could affect social media censorship. Manhattan Community Access Corp. v. Halleck questions whether a private operator of a public-access television service can be sued as a state actor on First Amendment grounds.

The 2nd U.S. Circuit Court of Appeals ruled in favor of DeeDee Halleck and Jesus Melendez, who were banned from a first-come, first-served TV station for expressing views critical of the channel. Some critics are concerned that, if the ruling stands, it could allow users to sue private companies for violating their First Amendment rights. In an amicus brief, the libertarian Cato Institute said the uncertainty of the case’s reasoning worries internet service providers, social media services, and other private companies.

So far, the high court hasn’t laid down any specific or far-reaching rulings on social media platforms’ right to curate content. Some lower courts have ruled that the sites are not constrained by the First Amendment or are only constrained in specific scenarios, such as when users interact with the president’s Twitter feed. But in Packingham v. North Carolina, the court struck down the state’s ban on sex offenders using social media services because, as then-Justice Anthony Kennedy wrote in the majority opinion, “Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights.” —R.L.A.

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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