- Religious entity’s liability for non-religious bias at issue
- Drastic impacts forecast regardless of outcome on appeal
The Fourth Circuit will be the latest court to examine the interplay between federal job discrimination law and religious freedom protections when it hears arguments Wednesday in a Catholic high school’s appeal of its loss in a gay teacher’s bias lawsuit.
Charlotte Catholic High School fired Lonnie Billard after his announcement on Facebook, soon after North Carolina legalized same-sex marriage, that he intended to marry his boyfriend.
The school and two co-defendants are challenging a lower court’s ruling that they’re liable for sex discrimination under Title VII of the 1964 Civil Rights Act. The issues on appeal include whether the decision to fire Billard falls under an exemption in Title VII for religious organizations.
The defendants say the case comes down to whether religious employers can require their employees to support the organization’s core beliefs and practices.
Billard, who worked at the school for nearly 14 years, says the issue is whether religious institutions are entitled to discriminate against employees—other than those who perform as “ministers”—whenever the bias is motivated by the institution’s religious beliefs.
Advocates on both sides predict dire consequences depending on which way the US Court of Appeals for the Fourth Circuit rules. The civil rights of at least a million workers, or the religious freedoms of countless religious schools of all faiths and the parents who send their kids there, hang in the balance, they say.
Scope of Title VII Exemption
Every federal circuit to address the scope of the Title VII exemption has held that it only applies to religious discrimination by a religious employer, Joshua A. Block of the American Civil Liberties Union Foundation said. That’s because it only excludes decisions made with respect to the employment of someone of a particular religion, not the other types of bias prohibited by Title VII, he said. Block represents Billard.
The Title VII exemption is “intentionally quite narrowly drafted,” Laura Narefsky of the National Women’s Law Center said. It only pertains to the hiring and firing of co-religionists, she said.
But Luke W. Goodrich of the Becket Fund for Religious Liberty said in a emailed statement that the Supreme Court “has repeatedly upheld the freedom of religious schools to hire teachers who fully support their religious mission.” Title VII expressly protects that freedom by providing “that religious schools are permitted to limit their hiring to individuals who adhere to their religious beliefs and practices,” he said.
Religious educators “can’t effectively pass on the faith if they are forced to hire teachers who reject their beliefs and practices,” Goodrich said.
SCOTUS Review Predicted
John J. Bursch, an attorney with the Alliance Defending Freedom, which represents the Cardinal Newman Society and two similar organizations backing the defendants on appeal, said the federal circuits are split over the reach of the Title VII exemption. The question is whether it also applies more broadly to a religious organization’s “ability to live, teach, and organize” itself in accordance with the tenets of its faith, he said.
“I’m not sure what the Fourth Circuit will do” but ultimately the Supreme Court will have to resolve the issue, Bursch said.
Religious employers are permitted by federal law to pick whoever they want when hiring clergy or filling jobs that include a ministerial function, attorney Julian H. Wright Jr. said. And if “they’re really adamant” about only having employees who share their faith and who “toe the line,” Title VII allows them to exclusively hire co-religionists, he said.
But if a religious employer can’t fully staff its operations or can’t find the right personnel for the work it needs done by hiring only those who share its faith, then it is subject to the marketplace, Wright said. When that’s the case, it can’t fire someone for a reason—religious or not—that’s illegal, including under Title VII, he said. Wright is with Robinson, Bradshaw & Hinson PA, which represents the North Carolina Council of Churches and two other groups supporting Billard.
‘Kings Don’t Pick Bishops’
The freedoms that religious institutions enjoy under federal law aren’t limited to the Title VII exemption, Prof. Richard W. Garnett of the University of Notre Dame Law School said.
The First Amendment’s free exercise of religion and establishment clauses also broadly shield such institutions, including when making employment decisions that affect their mission, Garnett said. He and six other law professors joined a brief supporting the defendants, which includes a history of the US Constitution’s approach to religious freedom.
Church-state separation is seen by some “as an almost anti-religion idea,” Garnett said. They believe it means religion doesn’t have a role in public life or that religion and government can’t cooperate. As a historical matter, that isn’t what it meant, he said.
At the time of the country’s founding, people were familiar with a world where the government and secular law were used to police religious orthodoxy and internal religious practice, the professor said. The US therefore “opted for an arrangement where the kings don’t pick the bishops, and the bishops don’t pick the kings,” he said.
Church autonomy under the First Amendment and the Title VII exemption are closely related questions, Garnett said. It would seem strange if the Title VII exemption disappears where an employee says they’re a co-religionist, but the employer disputes that or says continuing to employ the worker is inconsistent with its religious character, he said.
‘This Is That Case’
Billard didn’t challenge the defendants’ speech about their religion, he challenged their actions in firing him, the ACLU’s Block said. The defendant’s motivations are irrelevant, he said.
“If you are facially treating people different based on their sex,” your reasons for doing so don’t matter. That violates Title VII regardless of the motivation, Block said.
“It’s important to follow the facts of the case,” NWLC’s Narefsky said. Billard posted a celebratory wedding message online and was fired. That’s sex discrimination under the US Supreme Court’s 2020 ruling in Bostock v. Clayton County, Ga., she said.
But the ADF’s Bursch said Charlotte Catholic knew for years that Billard was gay. It only fired him when he chose to act in a way that violated the church’s teachings on marriage, Bursch said.
Bostock doesn’t control the outcome in Billard’s case, Bursh said. The justices specifically said all they were doing was interpreting what sex discrimination means under Title VII. They left open for future cases questions regarding the interplay between Bostock’s holding and the type of religious freedoms asserted by Charlotte Catholic, he said.
“This is that case,” Bursch said.
Millions Stand to Be Affected
The consequences of the Fourth Circuit’s ruling are predicted to be seismic regardless of which side prevails.
There are at least one million people in the US who work for religious employers, and it may be closer to two million, Narefsky said.
Many employers other than houses of worship and religious schools, including hospitals, radio stations, and TV stations, also have or assert religious status, according to her organization’s brief, which was joined by 47 other groups. Catholic hospitals alone employed 752,739 workers in 2017, many of whom didn’t share their employer’s religious beliefs, the brief said.
A ruling that expands the Title VII exemption to allow carte blanche discrimination on grounds other than religion would expose those workers to bias without recourse, Narefsky said. That discrimination would disproportionately impact women, people of color, and other traditionally vulnerable groups.
“It would be devastating to religious organizations to tell them that the government gets to decide who they have to hire and who they have to promote,” Bursch said. It would cause employee dissension and confuse students at religious schools, he said.
Balance Already Proper
A ruling upholding the lower court would “limit the ability of a religious community or institution to carry out its religious mission,” Notre Dame’s Garnett said. And it would stray beyond a federal court’s constitutional authority and a judge’s competence, he said.
“Secular courts exist to decide secular legal questions,” not theological ones, which federal judges aren’t trained to resolve, Garnett said.
The law currently strikes the right balance between religious freedom and society’s interest in shielding workers from discrimination, the NCCC’s attorney Wright said.
Religious institutions can protect the things that are most important to them, Wright said. And people don’t have to give up their rights just because they work for a religious employer, he said.
Tin Fulton Walker & Owen PLLC also represents Billard. Troutman Pepper Hamilton Sanders LLP also represents the defendants.
The case is Billard v. Charlotte Catholic High Sch., 4th Cir., No. 22-01440, oral argument 9/20/23.
To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloombergindustry.com
To contact the editors responsible for this story: Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com
