Here’s one for the Law Of Merited Impossibility file. As you will recall, the Law explains the deception that the Left employs to disarm conservative opposition. The Law holds that “It will never happen, and when it does, you bigots will deserve it.” That is, whatever worst-case scenarios conservatives raise in response to a progressive proposal, they are totally exaggerated … and when they actually happen (as they inevitably do), well, hey, what do you bigots expect? You had it coming.
I’m old enough to remember almost twenty years ago, when a group of us were warning that they way the law and American culture were heading on LGBT issues was going to be a disaster for traditional Christians and other social conservatives. It was going to take away our religious liberty to a substantial degree. As far ba
ck as 2006, a number of legal scholars — including pro-LGBT activist law professor Chai Feldblum — were saying that this was going to happen. But nobody in the media wanted to hear it, because if it was true, then that might arouse opposition to the full panoply of gay rights. “I don’t see how my neighbor’s gay marriage is going to affect me,” Everyman said. When people like me tried to explain it, we were shouted down as bigots.
And now, according to liberals, we’re getting what we deserve. This happened in North Carolina the other day:
A federal judge in North Carolina ruled Friday that a Roman Catholic school wrongfully fired a gay substitute teacher after he announced his plans to marry his partner in 2014.
U.S. District Judge Max Cogburn ruled against Charlotte Catholic High School, Mecklenburg Area Catholic Schools, and the Roman Catholic Archdiocese of Charlotte. He wrote that Lonnie Billard’s termination went against Billard’s federal protections against sex discrimination under Title VII of the Civil Rights Act of 1964.
A trial will go ahead to determine the relief for Billard; the judge ruled he is entitled to damages but did not set the amount.
Cogburn ruled that religious protections did not apply to Billard’s role in teaching English and drama because he held a secular teaching position.
“Plaintiff is a lay employee, who comes onto the campus of a religious school for the limited purpose of teaching secular classes, with no mandate to inculcate students with Catholic teachings,” Cogburn wrote in his decision.
He added that the school even encouraged Billard and others who taught nonreligious topics not to discuss such religion in their classes.
“Today’s decision is one of the first applications of the Supreme Court’s ban on sex discrimination to employees of private religious schools,” said Irena Como, senior staff attorney at the American Civil Liberties Union of North Carolina, in a press release. The ACLU was one of the groups representing Billard. “The court sent a clear message that Charlotte Catholic violated Title VII’s prohibition on sex discrimination when it fired Mr. Billard for announcing his engagement to his same-sex partner.” In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that workplace discrimination based on sexual orientation or gender identity is sex discrimination under Title VII.
Here is a link to the text of the judge’s decision. I would appreciate it if readers who are lawyers competent to discuss the ruling would weigh in. From the ruling:
The Court respects the sincerity of the Catholic Church’s opposition to Plaintiff’s actions. With a slightly different set of facts, the Court may have been compelled to protect the church’s employment decision. However, where as here, Plaintiff lost his job because of sex discrimination and where he was working as a substitute teacher of secular subjects without any responsibility for providing religious education to students, the Court must protect Plaintiff’s civil and employment rights.
That’s significant — the statement that begins, “With a slightly different set of facts… “. More from the ruling:
Importantly, Charlotte Catholic discourages teachers of secular subjects from instructing students on any sort of religious subject. The school asks that teachers who teach secular subjects refrain from instructing students on Catholic Doctrine. (Doc. No. 28-5 at 28). Secular teachers do not have to undergo religious training, do not have to be Catholic, and do not have to be Christian. (Doc. No. 28-3 at 58). The administration at Charlotte Catholic does not know the percentage of teachers at the school who are Catholic and does not ask if candidates are Catholic
during job interviews. (Id. at 11, 14-15).
As of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.
The judge decided that because the Catholic school made a point of separating out religion from literature classes, it had no legal leg to stand on to defend its firing of Lonnie Billard. Obviously I’m not trained in the law, but reading the decision, it does seem that the judge had no choice, under the Bostock precedent, but to rule as he did in this case. The judge takes pains to point out that he can only rule on the law … and Congress has not provided Charlotte Catholic with the grounds it would need to prevail in this matter:
If Congress wished to allow religious employers to do all of these things, it could have. But instead, it wrote narrow exemptions in the form of Sections 702 and 703. Under the current statute, religious institutions may employ those with similar faiths, but they may not discriminate against other protected classes. This Court therefore agrees with judicial precedent that Sections 702 and 703 are narrowly drawn and holds that those exemptions do not apply to shield Defendants from liability in this case.
Furthermore — and this really is crucial — the judge points out that the “ministerial exception” established by the SCOTUS decision in Hosanna-Tabor would not apply to the Lonnie Billard case. If Billard could be considered a “minister” of the Catholic Church, even broadly, then the defendants would likely have prevailed. But it’s absurd to consider him to have been a minister, says the judge, when the subjects he taught (drama and literature) were not religious, and when the school did not require him to be Catholic, or even Christian, to be hired. More:
Finally, Plaintiff’s position as substitute English and drama teacher did not directly “[reflect] a role in conveying the Church’s message and carrying out its mission.” HosannaTabor, 565 U.S. at 192. Charlotte Catholic High School teachers do not have to reference Catholic principles. (Doc. No. 31-17 at 74:2-17). The High School administration prefers that secular teachers, like Plaintiff, avoid discussing Catholic doctrine. (Doc. No. 31-16 at 28:2-15). Unlike all three teachers in Hosanna-Tabor and Our Lady of Guadalupe, Plaintiff did not teach religion in his classes and was not tasked with preparing students for participation in Catholic worship services.
In short, unless I’m missing something, the judge delivered the correct ruling here. I don’t like the ruling at all — but then, I didn’t like Bostock either. I would dispute the judge’s claim that only classes that are specifically religious qualify as having religious content; my wife teaches in a school, and my kids attend that school, where a Christian ethos is intentionally made present in all the classes. For example, literature is discussed in the context of our Christian faith and heritage. They don’t have drama classes, but if they did, it would be impossible to separate drama from the Christian faith (e.g., the techniques of acting would be non-religious, but the discussion of what drama is would necessarily take place within a Christian ethos).
Nevertheless, it seems to me that Judge Cogburn called out Charlotte Catholic for being Catholic In Name Only. According to the facts of the case, as cited in his ruling, the administration of the school knew that Lonnie Billard was in a gay relationship, but were happy to tolerate it as long as he didn’t make a public show of it. In fact, I think that hypocrisy is generally a humane way to handle things like this. I wouldn’t defend it in all cases, but I wouldn’t rule it out either. But for it to work, the school has to presume that the gay teacher is willing to play by the same set of “don’t ask, don’t tell” rules. That is far too risky today.
Again, I am willing to be corrected by readers who understand the law better than I do, and who believe the judge erred in his decision. But failing that, what this federal ruling says is that Christian schools that want to uphold Christian teaching on LGBT matters had better be truly Christian in all things, and can’t just be de facto secular schools role-playing as Christian.
We have been warned. The soft totalitarians are going to use every means at their disposal to crush any opposition to full LGBT affirmation. They do not intend to be tolerant, and never did. The irony here is that by compelling Christian schools and institutions that want to protect their religious liberty from hostile LGBT litigation, they are forcing these institutions to be much harsher and less merciful than they might want to be.
UPDATE: A lawyer writes:
Rod, my take on the NC case is that the school handed the judge the fact pattern he needed to nix their ministerial exception argument, but on both the Title VII religious exemption and RFRA arguments, the judge adopted what I view as an incorrectly narrow interpretation of those protections.
UPDATE.2: Another lawyer reader:
I want to echo what a previous reader said – this was a spectacular “own-goal” by the school in admitting to there being “secular” subjects. The good news: this gives a roadmap for any other schools wishing to avoid the same fate to simply incorporate some measure of theology into every subject taught. Of course, Christian schools need to be preparing to lose accreditation in blue states (which will most certainly happen by 2030).
I know you’re no fan of Doug Wilson, but the college and secondary school(s) associated with his ministry incorporate the faith into every subject taught, and they would have had a better chance of prevailing in a similar suit.