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Trinity Lutheran v. Comer: Not Your Average Playground Scuffle

In 2012, Trinity Lutheran Church in Columbia, Missouri, faced a problem: its playground was covered with pea gravel—coarse stone fragments that make for a perilous play surface.

Fortunately, Missouri’s Department of Natural Resources runs a grant program that reimburses non-profit organizations for installing playground surfaces made from recycled scrap tires. Hoping to defray the expense of resurfacing its playground, the church submitted an application.

Although the Department ranked Trinity Lutheran’s application fifth out of the 44 submissions it received and awarded 14 grants, it denied the church’s application. Its reasoning? A state constitutional provision—known as a Blaine Amendment—that bars religious institutions like Trinity Lutheran from receiving state funding.

Blaine amendments are the remnants of a wave of anti-Catholic sentiment that swept the nation during the nineteenth century. The original Blaine Amendment, named for Maine Senator James G. Blaine, was designed to protect the existing Protestant monopoly on schools by barring state funding of “sectarian” (i.e., Catholic) institutions. Though Senator Blaine’s amendment failed to gain the necessary votes in Congress, thirty-seven states incorporated similar language into their constitutions. Washington State was one of them.

Washington’s Blaine Amendment remains wholly intact; that is, unless Trinity Lutheran has its way in the Supreme Court. By the end of its term on June 30, the Court will very likely decide whether excluding religious institutions from a secular grant program under a state Blaine Amendment violates the U.S. Constitution.

Here, Trinity Lutheran contends that government should not be able to deprive religious institutions of the benefits it makes available to all. To do so would run afoul of the Constitution’s Equal Protection and Free Exercise clauses which, when read together, provide that states must generally treat religious individuals the same as they would treat any other individuals. When a state does subject a religious individual or entity to unequal treatment, it must provide an especially compelling reason for doing so.

The government’s rationale behind the grant restriction boils down to avoiding the establishment of a state religion. A decision in favor of Trinity Lutheran would compel taxpayers to fund improvements to church property. This arrangement, according to the Department, constitutes unlawful state funding of religion. Unlawful, that is, under the Supreme Court’s current interpretation of the Establishment Clause.

The government’s argument rests on a fundamental misreading of the Constitution. For decades, the Supreme Court has insisted that government must not only avoid favoring one religion over another, but avoid preferring religion over non-religion. Scholars have vigorously debated whether this principle accurately reflects the Establishment Clause’s meaning since 1947, when the Supreme Court handed down its misguided decision in Everson v. Board of Education.

Aside from the merits of either interpretation, the inescapable consequence of the Court’s interpretation pits the First Amendment’s two religious clauses against one another in case after case. Trinity Lutheran’s dispute provides yet another example of this unresolved tension.

It is highly unlikely that the Supreme Court will resolve the Free Exercise/Establishment Clause debate here. Nonetheless, Trinity Lutheran has offered the Court a ripe opportunity to chip away at—if not abolish altogether—the anti-religious legacy of state Blaine amendments.

That is, assuming the justices aren’t too chicken to play.


Christina Pesavento is a blog contributor from the “other” Washington (Washington, DC), where she works at a legal non-profit association. She previously served as a law clerk with the U.S. Senate Judiciary Committee and was president of the Federalist Society chapter at the American University Washington College of Law.


 

Judicial Magicians on the Seventh Circuit: Hively v. Ivy Tech

Failing to gain enough popular support for its radical social agenda, the progressive Left routinely attempts to skirt the legislative process and implement its policies through judicial fiat. The latest example of this strategy was on display last month in the case of Hively v. Ivy Tech.

Kimberly Hively, an open lesbian and adjunct professor at Ivy Tech Community College in Indiana, repeatedly sought but was denied an opportunity to interview for full-time employment at the college. Naturally, she filed suit, claiming that Ivy Tech discriminated against her based on her sexual orientation.

Undeterred by the fact that federal law does not prohibit sexual orientation discrimination, Hively sued under Title VII, the statute that forbids sex discrimination. The law states in part:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

The phrase “sexual orientation” is conspicuously absent from this provision. Nonetheless, Hively insisted that Title VII forbids employers from making decisions based on an employee’s sexual orientation because the term “sex” covers sexual orientation. Nearly a dozen plaintiffs before Hively (and likely dozens more) have made a similar argument in courts across the country, though most judges have found it unconvincing. Hively, however, managed to find a sympathetic ear at the Seventh Circuit Court of Appeals, the highest federal court in the circuit covering Illinois, Indiana, and Wisconsin, and a sister circuit to the much-maligned and regularly overturned Ninth Circuit Court of Appeals.

Dismissing not only the court’s own prior rulings but the rulings of all nine federal circuit courts to consider the matter, a majority of judges on the Seventh Circuit held that Hively could sue for sexual orientation discrimination under Title VII. Like pulling rabbits out of hats, these magicians in judges’ robes conjured up a law that forbids sexual orientation discrimination where a law forbidding only sex discrimination exists. A quick examination of the majority’s argument reveals the deceitful method behind the “magic.”

The Trick

So how does the majority equate sex discrimination with sexual orientation discrimination? Writing for the majority, Chief Judge Diane Wood begins by accepting as true Hively’s allegation that Ivy Tech refused to interview her because she is a homosexual. So far, so good.[1]  Next, however, Wood claims that, had Hively been a man married to a woman rather than a woman married to a woman, Ivy Tech would not have refused to interview her for a promotion. Because Ivy Tech treated a female employee differently from the way it treats male employees, Hively’s case boils down to a classic example of sex-based discrimination. Or so it would seem.

The problem is that the language used in the law is not ambiguous. As dissenting Judge Diane Sykes observes, no reasonable, English-speaking individual could read the law and conclude that it bans discrimination because of sexual orientation. Therefore, the court should not have reached beyond the plain meaning of the language to interpret the statute.

Yet because a plain reading of the law would reach a result that she personally found objectionable, Wood went to create ambiguity where none existed. To mask her dishonest interpretive method, she surreptitiously shifts the audience’s attention from the identity trait at issue (homosexuality) to an activity (intimate association with women).

Pulling Back the Curtain

As any reasonable person in this day and age could tell you, identifying as a homosexual is not the same as intimately associating with a person of the same sex. While one may result in the other, the two are conceptually distinct; an individual may identify as a homosexual—that is, someone who is romantically and sexually attracted to members of the same sex—without being in an actual relationship with a member of the same sex. Moreover, one would imagine that if Ivy Tech did object to hiring or promoting homosexual individuals, it would not matter if that individual was married or dating a same-sex individual; the objectionable trait alone (being gay) would suffice. By shifting focus from sexual orientation to intimate association, Wood is then able to draw a comparison between Hively and a straight, male employee that would lead a less-than-attentive reader to conclude that sex discrimination has taken place.

Leftist judges habitually apply this kind of reasoning in similar cases. Take the case of Barronelle Stutzman, who was sued by a longtime customer when she declined to serve as a florist for his upcoming same-sex wedding, or Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, who incurred the wrath of the Oregon Bureau of Labor and Industries when they declined to bake a custom cake for a gay couple’s wedding ceremony. In both suits, the small business owners did not object to their customers’ homosexuality, but to participating in a ceremony solemnizing an arrangement that offended their personal beliefs.

Yet like the Seventh Circuit in Hively, the Washington Supreme Court and the Oregon Court of Appeals deliberately ignored the difference between the trait and the activity and ruled against the small business owners. These federal judges—each of whom swore to uphold the rule of law—simply decided that their personal views take precedence over a plain reading of the statute. Thanks to their dishonest interpretive methods, small business owners across the country are now forced to choose between their conscience and their livelihood.

Unfortunately, Ivy Tech has announced that it will not appeal, meaning that the Supreme Court will not have an opportunity to correct the Seventh Circuit’s flawed logic in the near future. However, given the existing circuit split and the fact that the notoriously Left-leaning Ninth Circuit has yet to consider the matter, there is still a good chance that the Court will have that opportunity in the years to come.

 

[1] At the dismissal motion stage, the court accepts that the claims brought by the Plaintiff are true to determine whether the Plaintiff has a legitimate legal complaint.


Christina is a freelance legal blogger from the “other” Washington (Washington, D.C.). She received her law degree from American University and her undergraduate degree from the University of Notre Dame.

Washington State’s Bathroom Laws: Remedying Discrimination with Discrimination

In December 2015, a new Washington State rule took effect mandating that both public and private entities allow individuals to access sex-segregated facilities—including restrooms, locker rooms, and “facilities where undressing in the presence of others occurs”—according to their preferred gender expression or identity. In other words, public and private entities must allow men claiming to identify as women to use facilities designated for women, and vice versa for women claiming to identify as men.

For good reason, pro-family Washingtonians have started a campaign to collect enough signatures to get Initiative 1552 on the November ballot. I-1552 would “require schools to maintain separate facilities for boys and girls and allow businesses to manage private areas in the way they feel is best for them.”

Aside from the obvious privacy and safety issues the “bathroom rule” raises, it is revealing to consider how the rule suffers from a more immediate defect: fundamental incoherence. To see why, one merely needs to observe how Leftists have twisted our understanding of sex to make the case for their social agenda—thereby establishing an arrangement that implements the very type of discrimination that they purport to be combatting.

Federal and state laws forbid discrimination on the basis of sex, and have done so since the mid-twentieth century. Yet a commonsense exception to these laws has always existed to allow public and private entities to separate facilities based on biological sex. For example, Title IX of the Education Amendments of 1972 forbids educational institutions from discriminating based on sex. If the dictates of this law were applied without exception, they would forbid schools, colleges, and universities from separating bathrooms or locker rooms based on sex. Realizing the problems inherent in this application, regulators carved out an exception for sex-based discrimination in restrooms, locker rooms, and shower facilities, so long as the facilities provided for each sex are “comparable.” Similarly, Washington State’s law governing public school facilities allows school districts to provide separate facilities (including toilets and showers) for male and female students.

These exceptions to anti-discrimination laws stood in place for decades without eliciting the faintest public protest. Individuals with male genitalia used facilities designated and designed for men, and those with female genitalia used facilities designated and designed for women.[1] Moreover, when these anti-discrimination laws were written, there was no concept of “gender identity” or “gender expression” as separate from biological understanding of sex.[2]  This means sex-segregated facilities have, since their inception, discriminated on the basis of sex.

The new theoretical distinction between gender identity/expression and biological sex has triggered all sorts of problems where none existed previously. Nevertheless, the Washington State Legislature decided to codify the distinction by forbidding discrimination based on gender identity and expression. Nearly ten years later, Washington’s Human Rights Commission—an entity created by the Washington Legislature to administer and enforce Washington’s anti-discrimination law—issued the December 2015 bathroom rule.

The Human Rights Commission’s Executive Director, Sharon Ortiz, insisted at the time that the rule simply clarifies existing state anti-discrimination law. This should come as a surprise to those of us who have read the law in question, which explicitly protects “[t]he right to be free from discrimination because of . . . sexual orientation,” with “sexual orientation” defined as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”[3] This right encompasses “[t]he right to the full enjoyment of any of the accommodations . . . [and] facilities,” such as public restrooms, free from gender identity/expression-based discrimination.

Yet far from forbidding such discrimination, the December 2015 bathroom rule in fact codifies gender identity-based discrimination. Facilities labeled for women, for instance, are now accessible only to individuals who identify as women, regardless of their genitalia. Biological men who identify as women have the same access to women’s facilities as biological women who identify as women. Biological men who identify as men, as well as biological women who identify as men, may NOT access those same facilities. Likewise, facilities labeled for men are accessible only to individuals who identify as men, again regardless of their biological sex. The distinction is not based on sex but on the gender with which one identifies. In other words, the new rule purporting to interpret a law forbidding discrimination based on gender identity effectively discriminates based on gender identity.

The Commission could argue that transgender males (biological women who claim to identify as men) and transgender females (biological men who claim to identify as women) do not have to use the facilities that conform to their gender identity. However, this arrangement would contradict the Human Rights Commission’s own guidance on the bathroom rule. Per the Commission’s “Questions and Answers” document released in tandem with the rule, “Only females can go into women’s bathrooms or locker rooms in a gender segregated situation. This includes transgender females [i.e., biological men] who identify as female.”[4] (The same, one would presume, applies to biological and transgender males).

Even if the Commission were to suggest otherwise (or simply amend the guidance document), forcing men identifying as men and women identifying as women to use the facilities that match their biological sex while allowing transgender males and transgender females to select whichever facilities they please would constitute further discrimination, this time on the basis of both sex and gender identity. Instead of eliminating discrimination, the Commission has simply replaced one form of discrimination with another.

In reality, the Human Rights Commission is not trying to eradicate discrimination. The purpose of the rule was to force on society a new radical scheme of social engineering.

To remedy these circumstances, Washington voters would do well to pass I-1552 and restore order to an arrangement plagued with incoherence.


Christina is a freelance legal blogger from the “other” Washington (Washington, D.C.). She received her law degree from American University and her undergraduate degree from the University of Notre Dame.


[1] Exceptions, of course, existed. Young children, for instance, are allowed to use the facilities that conform to the sex of the parent or guardian whom they are accompanying, even if the child’s sex does not match that of the parent/guardian (i.e., mothers can bring their young sons into the women’s restroom).

[2] For those not yet familiar with the terms, “gender identity” is defined as “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.” According to this theory, one’s gender identity may not be the same as one’s biological sex. Similarly, “gender expression” is the “external appearance of one’s gender identity, usually expressed through behavior, clothing, haircut or voice.” Again, one may choose to express a gender that is different from his or her biological sex.

[3] Ironically, Leftists also insist “sexual orientation”— “an inherent or immutable enduring emotional, romantic or sexual attraction to other people”—has nothing to do with one’s gender expression or identity. However, the law equates gender expression and gender identity—two concepts that are distinct in Progressive parlance. It seems the Washington Legislature hasn’t quite grasped the nuances of Progressive gender theory.

[4] The Commission released a Q&A document, “Questions and Answers Regarding WAC 162-32-060,” containing answers to frequently asked questions concerning the December 2015 bathroom rule. In response to the question, “Can men now go into women’s bathrooms or locker rooms?” the Commission responds with an emphatic “No.”

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