A cursory review of 1st Amendment law hints that a Catholic school can win its challenge against South Euclid’s overly broad statute regarding sexual orientation and gender identity.
PJ Media reported yesterday that a small Catholic school in Ohio, one that revolves around traditional Catholic doctrine, including viewing marriage as a covenant between a biological man and a biological woman, is challenging its city’s newly passed “sexual orientation gender identity” (SOGI) ordinance on the basis that it is an unreasonable infringement against the school’s free exercise of its religion under the First Amendment:
Last year, the City of South Euclid passed a SOGI ordinance similar to the Equality Act in Congress and the Ohio Fairness Act currently in the state legislature. The Lyceum, a Catholic classical school in South Euclid, will sue the city on Wednesday, claiming the SOGI ordinance violates the First Amendment.
“South Euclid passed one of the most offensive and egregious sexual orientation gender identity laws that I have ever seen, and Christian ministries across the country should take note of what these laws would mean to them,” Aaron Baer, president of Citizens for Community Values (CCV), told PJ Media. His organization opposed the ordinance during the legislative process and will host the press conference on the lawsuit with ADF and the Lyceum. “The Lyceum is standing up and saying enough is enough.”
Baer called the local ordinance an “incredibly broad law that is devastating to Christian ministries.” According to him, the law imposes criminal penalties on individuals, businesses, and ministries that operate according to the teachings that marriage is between one man and one woman and that biological sex overrides gender identity. Every school, business, and ministry must open women’s bathrooms to biological men who identify as women and celebrate same-sex marriage and transgender identity.
According to the CCV president, the ordinance has no exemption for religious freedom or freedom of conscience.
Here’s the ordinance (or at least I believe this is the ordinance at issue) so you can draw your own conclusions. After defining sexual orientation and gender identity among other protected classes, the ordinance prohibits all sorts of things, including hiring people on the LGBTQetc. spectrum. I don’t think it’s true, though, that there’s no religion or conscience exception (again, assuming I’m looking at the correct ordinance). Instead, there is one that places the burden of proof on the person asserting the right of conscience.:
552.06 GENERAL EXCEPTIONS.
(f) If a party asserts that an otherwise unlawful practice is justified as a permissible bona fide religious or denominational preference, that party shall have the burden of proving that the discrimination is in fact a necessary result of such a bona fide condition.
As a preliminary matter, when a government is infringing upon free speech or association — which is effectively what is happening here because it is holding that religious institutions cannot promote their values either through hiring practices or teachings — it’s the government that bears the burden of proving that its regulation is not unduly burdensome: “When a State’s rule imposes severe burdens on speech or association, it must be narrowly tailored to serve a compelling interest. . . .” Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 206 (1999), Justice Thomas, concurring (and cited with approval in the decision itself). [Read more…]