October 17, 2018 at 12:08 pm EST | by Chris Johnson
Anti-LGBT lawsuits already headed Justice Kavanaugh’s way

Anti-LGBT lawsuits are already headed to U.S. Associate Justice Brett Kavanaugh. (Blade file photo by Michael Key)

Precisely on cue with the confirmation of Brett Kavanaugh to the U.S. Supreme Court, anti-LGBT groups have filed lawsuits challenging LGBT rights that may in the near future serve to test the new justice on his position on the issue.

The complaints — two filed in federal court, one filed in state court — were filed in Texas and seek to challenge the City of Austin’s LGBT-inclusive non-discrimination ordinance and the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with federal employment civil rights law, over its interpretation of Title VII to prohibit anti-LGBT discrimination in the workforce.

But Austin’s LGBT-inclusive ordinance has been on the books for some time and the EEOC has taken charge of anti-LGBT discrimination for years under Title VII of the Civil Rights Act of 1964. (The EEOC determined in the 2012 decision of Macy v. Holder that federal law bars anti-trans discrimination in employment and in the 2015 decision of Baldwin c. Foxx federal law bars anti-gay discrimination.)

Conspicuously, the two federal lawsuits were filed on Oct. 6, the exact date Kavanaugh was confirmed as a U.S. associate justice to the Supreme Court. Kavanaugh won’t have a chance to act on the newly filed lawsuits anytime soon, but they will likely percolate through the courts, giving anti-LGBT groups the opportunity to file petitions for review.

The newly confirmed justice, chosen by President Trump from a list of potential nominees backed by the Federalist Society and the anti-LGBT Heritage Foundation, could be the fifth and deciding vote on whether to preserve LGBT rights if the petitions in the federal cases come before the Supreme Court. (The lawsuit in state court raising state claims will be left to Texas state court. Kavanaugh or the Supreme Court wouldn’t be asked to review the decisions.)

The federal lawsuit against EEOC asserts the LGBT protections violate the religious freedom of churches under the First Amendment and the Religious Freedom Restoration Act by forcing them to hire employee who are LGBT despite religious objections of the employer. (Current law doesn’t require churches to hire pastors who are LGBT contrary to religious beliefs, but does prohibit religiously affiliated organizations from engaging in anti-LGBT discrimination for non-ministerial positions.)

Similarly, the federal lawsuit against Austin’s ordinance asserts a violation of the Free Exercise Clause under the First Amendment in addition to making religious freedom claims under the Texas Constitution and the Texas Religious Freedom Restoration Act.

A shared plaintiff in the two federal lawsuits is the U.S. Pastor Council, a Houston-based community of Christian conservatives that also unsuccessfully pushed for the anti-transgender bathroom legislation in Texas. In the case against EEOC, the Houston-based Hotze Health & Wellness Center, a Christian-owned business in Houston that seeks to refuse to hire LGBT employees is a plaintiff. In the state lawsuit, Texas Values, a social conservative non-profit in Austin, is the sole plaintiff.

The religious freedom claims in the lawsuits may be seeking to capitalize on Kavanaugh’s remarks during his confirmation hearing, when Kavanaugh said in response to questions from conservative senators like Ted Cruz (R-Texas) that religious freedom should be protected in the “public square.”

“The Framers understood the importance of protecting conscience,” Kavanaugh said. “It’s akin to the free speech protection in many ways. No matter what God you worship, or if you worship no God at all, you are equally American…If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square and to participate in public programs as others do. You can’t be denied just because of religious status.”

In response to these lawsuits, pro-LGBT groups may have to seek relief soon from either the U.S. Fifth Circuit Court of Appeals or the Supreme Court. The lawsuit against the EEOC was assigned to U.S. District Judge Reed O’Connor, a George W. Bush appointee with a reputation for being hostile to LGBT rights. (O’Connor issued a nationwide injunction against Obama-era guidance instructing schools Title IX of the Education Amendments of 1972 requires schools to allow transgender kids to use the restroom of their choice.) The other federal case against Austin’s LGBT-inclusive ordinance is pending before U.S. District Judge Robert Pittman, an Obama appointee.

Jonathan Mitchell, an Austin-based attorney whose law firm Mitchell Law PLLC filed each of the lawsuits, declined to comment on whether the timing of the lawsuits was intended to coincide with the confirmation of Kavanaugh to the U.S. Supreme Court, citing a practice of not commenting on pending litigation.

LGBT legal experts were hesitant to ascribe the filing of the new litigation with the addition of the new conservative to the high court, but predicted they were the kind of lawsuits they would expect anti-LGBT groups to file in greater capacity in the aftermath of the confirmation.

Jon Davidson, legal director for Freedom for All Americans, said he isn’t sure whether the lawsuits were timed to Kavanaugh’s confirmation, but foresees “more aggressive litigation moves in federal courts by anti-LGBTQ forces due to the increasing number of appointments of federal judges with histories of opposition to LGBTQ rights and Justice Kennedy’s retirement.”

“I believe these lawsuits are a continuation of efforts by anti-LGBTQ organizations and politicians’ efforts to weaken, if not invalidate, local nondiscrimination protections in Texas and elsewhere, notwithstanding the history of local government regulation in this area,” Davidson said. “I further believe the lawsuits are a continuation of efforts to distort the concept of religious freedom from the right to believe a license to use religion to act in violation of others’ rights. All of us care about religious freedom — that’s why it’s part of the Constitution’s promise to all Americans. That will never be up for debate. But religious freedom should be used as a shield, not as a weapon, and its reach should not be distorted in order to harm LGBTQ people or anyone else.”

James Esseks, director of the LGBT and HIV project at the American Civil Liberties Union, said Kavanaugh’s test “may come sooner” given cases on LGBT rights were already waiting for the new justice before the Supreme Court prior to his confirmation.

Among them is a petition from Harris Funeral Homes in Michigan challenging a ruling from the U.S. Sixth Circuit Court of Appeals asserting it violated Title VII by terminating the employment of Aimee Stephens for transitioning. Two other petitions seeking clarification on whether Title VII applies to anti-gay discrimination are also pending before the Supreme Court.

“A growing chorus of appeals courts — and a solid majority of the American people — agree that firing someone because they are LGBTQ is against the law,” Esseks said. “The high court may weigh in on whether laws prohibiting sex discrimination in the workplace apply to discrimination towards LGBTQ people this term.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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