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).
Putting aside the fundamental problem with the municipality placing on the religious school the burden of proving that the ordinance is not narrowly tailored to serve a compelling interest, I am writing this post because I’m curious where we stand when it comes to government interfering in religious practices. Although I’m a lawyer, constitutional law is not my bailiwick, so I’m not too conversant with the matter. Still, I do know that, despite the broad First Amendment proscription barring Congress from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof,” we have in fact allowed American governments to interfere with some aspects of religious practice in America.
In 1878, the United States Supreme Court held that the First Amendment did not prevent Congress from criminalizing polygamy, even though the defendant prosecuted under the laws claimed polygamy was a central tenet of his Mormon faith. Back in 2012, when the Obama administration sought to make Catholic businesses and religious institutions pay for abortions, Wolf Howling examined Reynolds v. U.S., 98 U.S. 145 (1878). Rather than reinvent the wheel, I’ll quote at length from his excellent analysis:
The Court looked back to the drafters to find how they interpreted the “Free Exercise” clause:
[In a bill] ‘for establishing religious freedom,’ drafted by [Thomas} Jefferson, . . . religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of [religious beliefs and principles], and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
. . . Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious beliefs], but was left free to reach actions which were in violation of social duties or subversive of good order.
(emphasis added, citations omitted)
The Reynolds Court found that at the time of the drafting of the Constitution, all sects of the Christian faith in Europe and America had, since ancient times, practiced monogamy and had outlawed polygamy. It wan’t until the Mormon faith was created in 1830 and preached polygamy as one of its tenets that polygamy in the U.S. became an issue. The Court further found that polygamy was universally held to be criminal in the 13 states at the time that the Constitution was signed.
Thus the Court found that the Constitutional prohibition against free exercise of religion did not contemplate polygamy as within its ambit. The Court, describing polygamy as “odious” to the religious traditions protected by the Constitution, and further finding it to be an “act” that threatened the social order, the Court held that polygamy could be prohibited by the state.
Also implicit in the Court’s decision was that the Free Exercise clause protected mainstream Christian and Judaism and their religious doctrines extant in the U.S. at the time the Constitution was signed. Other religious beliefs and or religious beliefs claimed thereafter, to the extent that they conflicted with “peace and good order” and “societal duties,” could not claim the protections of the Free Exercise clause. To this point, the Court said:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
In the first paragraphs from Reynolds that Wolf Howling quotes, the Supreme Court, in a perfect example of originalist construction, concluded that the Framers, when they stated that the government had no role in religion, were saying that traditional Judeo-Christian precepts are an inviolable area into which government cannot intrude, in part because those precepts benefited society (any society) rather than destroyed it.
In the second paragraphs quoted, the Court distinguished between abstract principles of belief and actions taken in the name of religion. Significantly, in making this argument, the Court pointed to extreme and classic illegal behavior: You may not kill other humans to advance your faith nor may you impose upon people the obligation to kill themselves to advance their faith.
In cases in which the SOGI ordinances and laws intersect with religion, the question is whether the government can (a) force people into beliefs inconsistent with their faith and (b) force people within their faith circle (i.e., their church, their parochial school, their religiously based hospital) to associate with other people whose conduct or belief systems are anathema to the faith.
Based upon Reynolds, I would say that the answer to both is “no.” The Reynolds Court is clear that the government cannot interfere with beliefs that do not extend to action. And I would argue that, when it comes to actions, it is equally clear that the government can impose itself only when those actions violate long-standing religious and cultural shibboleths. For example, the government can and will act to prevent a religion from requiring that its adherents kill or be killed.
Under Reynolds, the government can intervene to block extreme religious action that is inconsistent with traditional Judeo-Christian doctrine. There’s no indication that the corollary exists, which is that government can intervene to force non-religious conduct that is inconsistent with traditional Judeo-Christian doctrine.
The above, of course, is my read on a case that’s more than 140 years old. How would these same principles hold up today? Have we now decided that, when it comes to Christian schools barring openly gay people or transgender people from teaching at a traditional Christian school, that conduct is every bit as vile as human sacrifice or polygamy, so much so that the government can step in to block actions based upon that belief system?
Rather than plowing through 140 years of cases addressing the religious freedom clause in the First Amendment, I’m turning the clock back just nine months, to check out Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018). Most people remember the decision because the Court ultimately punted by concluding that the Colorado Civil Rights Commission acted with such blatant anti-religious prejudice that the Court really didn’t have to engage in an analysis balancing “the rights and dignity of gay persons” against the baker’s religious beliefs.
By the way, the Constitution itself says nary a word about a constitutional right to dignity. It was Justice Kennedy who wrote the romance novel that is the Obergefell
Masterpiece Cakeshop decision that found a magical “right” to gay marriage in the Constitution. That was a weak-minded, political thing for him to do. The better decision would have been to hold that, to the extent marriage has always been understood to have a religious component, the government should get out of the marriage business entirely and, instead, be responsible solely for civil unions, an area in which it can determine what privileges the state can mete out to married couples and what rights such couples have that exist independent of the state. But I digress.
Masterpiece Cakeshop also involved a constellation of other issues not relevant here, such as whether making a cake constitutes an act of public accommodation or is a creative act that constitutes speech. As a reminder, on the facts now at issue, we are talking about a private Catholic school being told who it can hire and what it can teach. Still, to the extent the case represents the Supreme Court’s 2018 take on the First Amendments religious freedom language, let’s take a peek at it.
Justice Kennedy begins by citing to his own decision in Obergefell to state the religious liberty principle that still ostensibly controls in America:
As this Court observed in Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ––––, 135 S.Ct., at 2607.
Masterpiece Cakeshop, 138 S. Ct. at 1727.
For that reason, the government may not act in a way that is manifestly hostile to religion:
In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id., at 534, 113 S.Ct. 2217.
Masterpiece Cakeshop, 138 S. Ct. at 1731.
The Church of Lukumi holding states an interesting concept, because the entire purpose of these SOGI ordinances and laws is not to prevent government discrimination against people on the LGBT spectrum. It is, instead, almost certainly intended to prevent religious institutions from persisting in their belief that their deity created two sexes and that marriage is between one representative of each of those sexes.
Put another way, to the extent that religious organizations and individuals are pretty much the only ones in America still clinging to the “outdated” belief (one that the Founders certainly shared) that there are two sexes and marriage is for heterosexuals, any SOGI law or ordinance is by definition “hostile to the religious beliefs of affected citizens.” Governments that pass SOGI laws have as the sole basis for enactment to “pass judgment upon or presuppose the illegitimacy of religious beliefs and practices.” There is nothing neutral about them.
By the way, to the extent that I grew up in the San Francisco Bay Area and count innumerable gays among my acquaintances, I’ve had the chance to follow the rhetoric of some on Facebook when it comes to those who cling to traditional religious beliefs. The hostility towards Christians is extraordinary. The LGBTQetc people I know are open about their hatred for traditional Christians and Jews because they view those religious traditions as homophobic. These same LGBTQetc people are therefore equally open about their belief that the law should be brought to bear to destroy those institutions.
As an aside, for the longest time, these same gay activists have had nothing whatsoever to say about the way in which gays are treated across the Islamic world. Here’s a graphic that nailed the Left’s approach to Islam and gays right up until about two days ago:
Something is amiss here, can’t quite put my finger on it. 🤔 pic.twitter.com/rsbj2MX7fW
— Paul Joseph Watson (@PrisonPlanet) April 3, 2019
For some reason, however, Brunei’s decision to get with the Islamic program seems to have woken them to the problem. Maybe it’s because they get to virtue signal by avoiding luxury hotels that ordinary people can’t stay in anyway.
Anyway, my thoughts are a bit wandering and inchoate, since I’ve mostly been focusing for the last few days on things other than politics and social issues. I’m pretty sure, though, that these ordinances, to the extent that they exist, not to constrain government, but to constrain traditional Judeo-Christian practices in private institutions are unconstitutional. That doesn’t mean the Catholic Diocese will win in court, but it means it should win in court.