“Being forced to employ someone to represent the company who behaves in a manner directly violative of the company’s convictions is a substantial burden,” the three-judge panel of Republican appointees found.
A federal appeals court has barred the Equal Employment Opportunity Commission (EEOC) from suing a Christian business owner who vowed to fire “individuals who engage in behavior he considers sexually immoral or gender non-conforming.” The business owner, Steven Hotze, operates “his [subsidiary] corporations as ‘Christian’ businesses,” despite none of the corporations having an expressly religious mandate.
Hotze’s for-profit business, Braidwood Management, sought an exemption from Title VII of the Civil Rights Act of 1964, which bars discrimination in employment “on the basis of sex.” As interpreted by the Supreme Court in 2020, employment discrimination “on the basis of sex” includes “fir[ing] an individual merely for being gay or transgender.”
The business owner persuaded the United States Court of Appeals for the Fifth Circuit that the Religious Freedom Restoration Act (RFRA) compelled the EEOC to grant him an exemption from Title VII. RFRA provides that
(a) IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The court, quoting the lower court’s framing of the issue, found enforcing Title VII against Braidwood would substantially burden Braidwood’s religious practice:
“[E]mployers are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” We see no reason why that formulation is incorrect. Being forced to employ someone to represent the company who behaves in a manner directly violative of the company’s convictions is a substantial burden and inhibits the practice of Braidwood’s beliefs. (footnotes omitted)
The court then considered whether the burden imposed by Title VII was “in furtherance of a compelling governmental interest.” The EEOC claimed a compelling interest in eliminating discrimination in the workplace, which the court rejected:
Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that.
The court noted that even if the EEOC had articulated a compelling interest in eliminating discrimination in the workplace, Title VII enforcement action against Braidwood would not be “the least restrictive means of promoting that interest.”
The EEOC, according to the court, could further its interest by “propagating guidance that provides a framework for employers, like Braidwood, that oppose homosexual or transgender behavior on religious grounds, to obtain an exemption.”
The EEOC told Legal Insurrection it was reviewing the decision, declined to comment, and referred further questions to the Department of Justice.DONATE
Donations tax deductible
to the full extent allowed by law.