The Seventh Circuit is the first court to rule on a case in a manner that I have been suggesting will be the real long-standing precedent from the famed 2015 Supreme Court Obergfell ruling. In Obergfell, the United States Supreme Court ruled that all states had to recognize gay marriage under the Constitution’s guarantee of equal protection under the 14th Amendment. The 14th Amendment not only guarantees that all citizens are entitled to equal rights, but also that states cannot restrict those rights. The issue came up in the matter of Kimberly Hively v. Ivy Tech Community College; Hively filed a civil rights employment discrimination action because she claims that she was fired because she is a lesbian.
Ivy Tech responded that even if true, Hively had no grounds to sue because homosexuality is not a protected class in Indiana where the college is established. I have suggested in past analyses that under the court’s review of the Obergfell case, equal protection status, although not explicitly stated, is expanded to homosexuals as a class that must be granted protection under the law. Under the court’s interpretation, homosexuals are entitled to protection because of what they are, rather than what they do. Courts see sexual orientation as a state of being rather than a behavior, and therefore all acts that discriminate against homosexual people must be abolished.
Courts and most legislatures have not explicitly gone that far. Yet. Presumably that is because there is too much tension with the First Amendment—and its guarantee of the free exercise of religion—and more recent legislation that guarantees laws cannot discriminate against religious practice, like the Religious Freedom Restoration Act, which prohibits any law that burdens religion unless government proves an essential purpose for the law. Religious traditions that are prominent in America all have provisions that explicitly prohibit homosexual behavior. (Or at least male homosexual behavior, in that the Torah actually does not have any direct prohibition against lesbian behavior).
The effects of Obergfell may end up having a practical effect on Jewish institutions. While the RFRA requires a jurisdiction to give great leeway to religious organizations in terms of how they conduct their business and forecloses states and cities from establishing impediments to religious practice, the 14th amendment creates a counter tension granting rights to individuals to be free from discrimination. Under Obergfell, the Supreme Court has added such protection to homosexuals, at least in terms of marriage.
But the Seventh Circuit goes beyond that. It extends the Equal Protection clause to gays in terms of employment. So what happens when a yeshiva hires a man who it turns out is gay and although otherwise qualified, the administration decides that it goes against the halachic principles of Judaism? Can they terminate him? Under the RFRA one might be inclined to say they could, but under the extension of Equal Protection guarantee by Federal Courts, it should give a school board, even a religious school board, pause if they don’t want to get sued.
The practical effects are not hypothetical. Last month in the state of Washington, a court upheld a fine levied against a florist who refused to provide flowers to a homosexual wedding. The florist in Richland declined the business on the grounds that gay marriage violated her strongly held religious beliefs. Essentially that should be enough under the RFRA, but the Washington State Human Rights Commission found otherwise and fined the company. The florist sued but lost, and then lost on appeal. The Court ruled that the refusal of the company to provide a service to gay customers is inexcusable discrimination. Whatever the owner’s religious beliefs, providing flowers is not an endorsement of gay marriage any more than providing flowers to an Islamic wedding, or even an atheistic wedding is an endorsement of those beliefs, the court said.
Obergfell’s expansive language seems to undercut the main crux of the RFRA, at least when it comes to whatever objections religious groups may have to homosexual relationships.
In any case, the recent Federal Appeals Court decision in favor of Hively comes to the conclusion it seeks although the language of the judges does not go all the way to the 14th Amendment. Instead the Court got a little cute. The judges ruled that “while the Civil Rights Act does not explicitly prohibit discrimination on the basis of sexual orientation, it bars sexual discrimination.” The Court found that that the college engaged in sexual discrimination by stereotyping Hively based upon her gender. Specifically, it stereotyped her preference for women as perverse. That’s a long way around what the 7th Circuit is really saying. That in their interpretation of the laws, gays are subject to equal protection based on their orientation. It would be nicer, and cleaner, if the Court would actually say it was doing was what it was doing, but judges generally like to find narrower grounds for coming to their conclusion, if possible, even when deciding based upon more expansive grounds.
I can pretty much assure that we will be seeing more decisions like this over the next few years. There may be some tension when religious values collide, but overall the status of homosexual rights as a recognized and protected class has won. There are still some Federal circuits, mainly in the south, that are resisting an all-encompassing finding that discrimination based solely upon sexual orientation is illegal throughout the land based upon the Obergfell ruling—but it really is the only logical conclusion. I suspect that one day, not too far in the distant future, we may have a Supreme Court decision affirming the fact that Civil Rights Law includes civil rights for gays, even if not explicitly stated within the law but under the Obergfell definition of equal protection as defined by the Court in the expansive Supreme Court ruling.
By Stephen Loeb
Stephen Loeb is an attorney licensed in New York and New Jersey. He is available for representation and review of all civil legal matters.
