EEOC and left-wing judges strike a blow against religious freedom

The U.S. Court of Appeals for the Sixth Circuit has agreed with the EEOC that a funeral home engaged in unlawful discrimination when it fired a male funeral director who was “transitioning” to female and dressing as a woman at work. The case is EEOC v. Harris Funeral Homes.

The opinion is by Karen Nelson Moore, a Clinton appointee and one of the most left-wing federal appeals court judges in America. She was joined by Bernice Donald and Helene White. Donald, an Obama appointee, is also a far leftist. White was nominated by Clinton but blocked by then-Senator Spencer Abraham. Later, Bush nominated her in one of those deals that generally favors Democrats.

The case is the handiwork of Chai Feldblum’s EEOC. Feldblum’s desire to run roughshod over religious liberty in order to maximize LBGT interests is well-documented. As we reported, Feldblum has said “I’m having a hard time coming up with any case in which religious liberty should win” over gay rights and that “in almost all cases sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner”. Sen. Mike Lee quotes Feldblum as saying “no individual exceptions based on religious beliefs” should ever be allowed if they conflict with “the goal of liberty for gay people.”

EEOC v. Harris Funeral Homes is the Feldblum EEOC’s latest effort to impose this vision. As a threshold matter, I doubt that, correctly interpreted, federal anti-discrimination laws — the ones Congress actually passed — prohibit a funeral home from requiring a male funeral director (“transitioning” or not) to wearing a man’s suit. I question whether these laws say anything about transgender issues. Certainly, the lawmakers who passed them didn’t imagine they do.

I want to focus, however, on the treatment by the EEOC and the court of the defendant’s assertion of religious rights. The district court had held that the EEOC’s discrimination claim must be considered in light of the Religious Freedom Restoration Act (RFRA), which prohibits the government from enforcing a law if that law substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling interest.

The EEOC tried to short-circuit the owner’s reliance on RFRA by effectively reading that act into oblivion. It argued that because Congress intended RFRA to apply only to suits in which the government is a party, and because the funeral home director (represented by the ACLU) intervened in the case, RFRA cannot apply.

This argument was too much for even the leftist Sixth Circuit panel to stomach, and for good reason. The EEOC can always ask the ACLU and like-minded groups to intervene in EEOC cases whenever a defendant raises a RFRA defense. Such groups will be oh-so willing to comply, especially since little work will be required of them — they can simply piggyback on the government’s prosecution. If such intervention eliminates RFRA from the case, as EEOC argued it did, RFRA’s protections would become a virtual dead letter.

Having rejected the EEOC’s attempt to repeal RFRA, the Sixth Circuit considered the merits. It held that, as a matter of law, permitting the transitioning funeral director to dress like a woman did not substantially burden the religious exercise of the funeral home owner.

The owner, a practicing Christian, believes that “that God has called him to serve grieving people” and that “his purpose in life is to minister to the grieving.” His company website declares that its “highest priority is to honor God in all that we do as a company and as individuals.”

Clearly, then, the owner’s operation of his funeral homes is a religious exercise within the meaning of RFRA. The Sixth Circuit panel did not dispute this.

However, the court viewed the RFRA issue as “whether the Funeral Home has identified any way in which continuing to employ the [transitioning director] would substantially burden the owner’s ability to serve mourners.” In my view, the issue is whether allowing the director to dress as a woman would substantially burden the owner’s ability to serve mourners consistent with the company’s religious mission, as the owner sees it — in other words, consistent with his mission to “honor God.”

It seems clear that the EEOC’s demand would substantially burden this right. The owner plainly does not believe he would be honoring God at funeral services in which the director, a man in “transition,” dresses like a woman. Rather, he believes he would be dishonoring God by “violat[ing] God’s command[]” that gender is “an immutable God-given gift,” not “a changeable social construct.”

Thus, the EEOC’s position presents the owner with the very dilemma RFRA was intended to prevent. He must either violate his religious faith or abandon his business.

The Sixth Circuit reasoned that RFRA doesn’t apply because “tolerating [the transitioning director’s] understanding of her sex and gender identity is not tantamount to supporting it.” This is sophistry.

The director can “understand” his or her sex and gender identity anyway he or she wants; the owner has no say over that. But if a man, biologically speaking, handles a funeral service dressed like a woman where company rules require that men wear a suit, the owner is supporting the director’s understanding.

RFRA is triggered in this case for the same reason it was triggered in Burwell v. Hobby Lobby. There, the business owners had a sincere religious belief that life begins at conception. Thus, they “object[ed] on religious grounds to providing health insurance that covers methods of birth control that. . .may result in the destruction on an embryo.”

The Supreme Court held that “by requiring [the owners] and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.” That was enough to trigger RFRA.

In the funeral homes case, the owner has a sincere religious belief that gender is a God given gift, not a changeable social construct. Thus, he objects on religious grounds to having his company’s funeral services handled by a man dressed as a woman. Requiring him (if he wishes to stay in business) to permit this amounts to a demand that his company engage in conduct that seriously violates the owner’s religious belief.

If RFRA is triggered, as it should be in this case, that’s not the end of the inquiry. The EEOC would still prevail if it could show that its demand is (1) in furtherance of a compelling governmental interest and (2) the least restrictive means of furthering that interest.

The district court ruled against the EEOC on the second point. It found that the agency failed to explore accommodation of the funeral home’s competing rights under the RFRA and to pursue the alternative least restrictive of the employer’s legitimate religious interest.

The Chai Feldblum EEOC’s unwillingness to search for an accommodation comes as no surprise. As noted above, Feldblum has a hard time imagining how religious concerns might offset, however slightly, LBGT interests. But Congress didn’t just imagine accommodation of religious concerns; Congress mandated it.

The Sixth Circuit has three new judges, all nominated by President Trump. With the addition of these three, the liberals are now in the minority, I believe.

Thus, it’s possible that a request for review of EEOC v. Harris Funeral Homes by the full court might produce a different outcome. It seems worth a shot.

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