Newsbriefs: 7th Circuit Applies Title VII to Sexual Orientation
Religious Liberty Newsbriefs
The U.S. Supreme Court will finally be hearing oral arguments inTrinity Lutheran Church v. Pauley on April 19, 2017. The Court granted certiorari in January 2016 just before the death of Justice Scalia, and the case has been delayed more than a year. It's anticipated but uncertain whether Trump nominee Neil Gorsuch will have replaced Scalia by that date on the bench. This case matters because a church is suing the state of Missouri for the ability to participate in a playground replacement program available to other non-profits but not churches under the state constitution. If the Court finds for the church, it could strike a blow to "Blaine Amendments" present in many cases that prohibit state funding of religion.
Trinity Lutheran Church v. Pauley is also the subject of Founders First Freedoms' first law student writing competition where law students are being asked to write a model Supreme Court majority opinion in the case. First prize is $1500 and second prize is $750. The entry deadline is 5:00 p.m. on June 23 with judging to be completed in August. More info is available online at http://foundersfirstfreedom.org/
United States Attorney General Jeff Sessions has announced plans to combat religious hate crimes. In a Memo(https://www.justice.gov/opa/press-release/file/955476/download) released April 5, Sessions states, "We will not tolerate threats or acts of violence targeting any person or community in this country on the basis of their religious beliefs or background. Accordingly, the Hate Crimes Subcommittee will develop a plan to appropriately address hate crimes to better protect the rights of all Americans. As with many other areas of the Task Force's work, we are already making significant progress toward our goal of a safer America. Recently, the Federal Bureau of Investigation, working with law enforcement partners in Israel and elsewhere, helped secure the arrest of a man believed to be responsible for the recent surge in threats of violence against Jewish community centers and synagogues. I commend their outstanding efforts."
The U.S. 7th Circuit Court of Appeals has issued a landmark en banc decision holding 8-3 that Title VII of the Civil Rights Act of 1964 prohibits discrimination by sexual orientation as it is a form of prohibited sex discrimination. The primary issue is whether the courts can apply current interpretation to existing statutes. Previous courts had ruled that Title VII did not apply to sexual orientation as it was not specifically identified as a protected class. Judge Posner, in a concurring opinion, wrote that although Congress had not passed legislation to expand Title VII to include sexual orientation, "statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning." Dissenting justices wrote that "[t]he majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion…. The result is a statutory amendment courtesy of unelected judges," and called the decision "the circumvention of the legislative process by which the people govern themselves." Hively v. Ivy Tech Community College of Indiana –
On March 27, the U.S. Supreme Court heard oral arguments in three cases brought by employees against religiously-affiliated hospitals. The employees had sued claiming that the hospitals had underfunded their pensions in violation of the Employment Retirement Income Security Act (ERISA). The hospitals argued that they had in fact properly funded the pensions, and even if they had not, that they were actually the same as "churches" and therefore eligible for the exception, regardless of whether they primarily engage in religious activity and regardless of "necessary" involvement with the state in terms of funding and health and safety regulations. Others argued that exempting the large religiously affiliated hospitals and health systems from federal pension protections would violate church-state separation by providing them a financial advantage over secular competitors. I'm surprised this is not being addressed as an employee benefits issue since it is part of the employee benefits package and is a contractual rather than a "religious" issue. A decision is expected later this year. (Advocate Health Care Network v. Stapleton)
On April 3, the 5th Circuit Court of Appeals heard arguments on whether a 2016 injunction should be lifted on a Mississippi law, HB 1523, that allows state employees to refuse to issue marriage licenses to same-sex couples and businesses to deny certain wedding-related services to LGBT individuals. Critics of the law state that it is the most discriminatory legislation against the LGBT community in the nation. A decision is expected shortly. During oral arguments, the attorney for the state argued that the 12 plaintiffs who had filed suit against the law lacked standing because they could not establish 'an injury in fact." The judges did not seem to buy this argument, and a decision on the merits is expected shortly. (Bryan v. Barber – you can hear the arguments here)