Charlotte, N.C., Sep 8, 2021 / 19:00 pm (CNA).
The Diocese of Charlotte has said the law and religious freedom precedent are on its side, despite a federal judge’s ruling that a Catholic high school illegally discriminated when it said it would no longer hire a substitute teacher who announced that he would contract a same-sex marriage.
The ruling both applies a new Supreme Court decision that defines sex discrimination to include sexual orientation, and holds that other religious freedom rulings do not apply.
“We respectfully disagree with the district court’s decision and are considering next steps,” the Charlotte diocese said Sept. 4. “The First Amendment, federal law, and recent Supreme Court decisions all recognize the rights of religious organizations to make employment decisions based on religious observance and preference. They do not — and should not — compel religious schools to employ teachers who publicly contradict their teachings.”
The diocese said its Catholic schools “exist to provide high-quality education and transmit the Catholic faith to the next generation.”
“Like all religious schools, Catholic schools are permitted to employ educators who support our Church’s teachings and will not publicly oppose them,” said its statement.
The plaintiff, Lonnie Billard, in October 2014 had posted to social media his intention to contract a same-sex marriage. He had worked as a full-time faculty member teaching drama and English at Charlotte Catholic High School from 2001. He retired in 2012 and became a long-term substitute teacher, working more than a dozen weeks a year.
In December 2014, an assistant principal at the school then told him he would no longer be hired as a substitute teacher.
U.S. District Judge Max Cogburn said the Diocese of Charlotte and the diocese’s Charlotte Catholic High School illegally discriminated against the plaintiff on the basis of sex under Title VII of the Civil Rights Act. The federal judge granted a summary judgement to Billard and said a trial would determine any legal relief.
“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,” said Cogburn, who was nominated to his position by Barack Obama.
Billard’s lawsuit, filed on his behalf by the American Civil Liberties Union of North Carolina, claimed that the diocese ordered his termination because of his announcement. It sought back pay and benefits, punitive damage, compensatory damages for emotional distress, and a court order blocking the school and Catholic leaders from taking similar actions in the future, “restraining Defendants from engaging in further discriminatory conduct.”
The lawsuit said he was wrongly fired because of his intention to enter a same-sex civil marriage and “because he does not conform to sex-based stereotypes associated with men in our society.”
In recent years the U.S. Equal Employment Opportunity Commission and several federal court cases have advanced the claim that “sex stereotypes” like the belief that that men should not marry men or that women should not date women constitutes illegal discrimination on the basis of sex.
Cogburn’s ruling rejected claims that religious freedom protected the school from the lawsuit.
Title VII employment law is “narrowly tailored” because of its carve-outs for religious discrimination, he said. The judge cited the Fourth Circuit Court of Appeals, which said, “protecting non-ministerial employees from sex discrimination in church-affiliated schools is an interest ‘of the highest order’.”
Cogburn cited both longstanding interpretations of sex discrimination and the 2020 Bostock v. Clayton County ruling, which “held it is impossible to discriminate against someone for being homosexual or transgender without discriminating against them based on sex.” He said it is “an unanswered question” whether a religious employer might have a legal or constitutional defense against Title VII claims of sexual orientation discrimination. The exemptions to Title VII allow religious discrimination, but not sex discrimination, said Cogburn.
Irena Como, senior staff attorney at the ACLU of North Carolina, said Sept. 3 that the decision is “one of the first applications of the Supreme Court’s ban on sex discrimination to employees of private religious schools.”
“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,” she said. “Religious schools have the right to decide who will perform religious functions or teach religious doctrine, but when they hire employees for secular jobs they must comply with Title VII and cannot discriminate based on sexual orientation.”
Billard welcomed the decision.
“After all this time, I have a sense of relief and a sense of vindication. I wish I could have remained teaching all this time,” he said. For him, the decision “validates that I did nothing wrong by being a gay man.”
The judge said the defendants did not require the teacher to be Catholic and “even explicitly encourage him and other teachers of non-religious subjects to refrain from teaching religious topics in their classrooms.” The plaintiff was required to refer students with emotional and spiritual questions outside his disciplines to the proper individuals.
Cogburn cited a 2000 Fourth Circuit ruling involving the EEOC v. Roman Catholic Diocese of Raleigh, when the EEOC ordered the diocesan cathedral to rehire a fired music minister. That ruling said “where no spiritual function is involved, the First Amendment does not stay the application of a generally applicable law such as Title VII to the religious employer unless Congress so provides.”
The judge added that “hiring paid employees is commercial activity, not expressive association.” Keeping the plaintiff “as a substitute teacher for secular classes would not significantly impair its freedom of expressive association.”
Billard was a banker before he became a teacher, the Charlotte Observer reports. He said he brought his partner to school events and their relationship was known to students, teachers, parents, and administrators. He said that his adherence to Catholic teaching was never part of the employment process.
In January 2015, amid controversy over his firing, a diocesan spokesperson said Billard lost his job “for going on Facebook, entering in a same-sex relationship and saying in a very public way that he does not agree with the teachings of the Catholic Church.”
Then-communications director of the Charlotte diocese David Hains said that continued employment of Billard would be “legitimating that relationship” and wrongly indicate Church approval, the lawsuit said. He noted the Church’s belief that marriage is a union only of a man and a woman and rejected claims of discrimination.
“He’s not being picked on because he’s gay. He lost his job as a substitute teacher because he broke a promise because he chose to oppose church teaching, something he promised he would not do,” the spokesperson said.
At the time, the ACLU argued that religious organizations are not exempt from the federal ban on sex discrimination under Title VII of the Civil Rights Act. It claimed that other teachers violated Catholic teaching on divorce and other matters, but Billard was the only teacher fired.
As CNA has previously reported, a well-funded network of advocacy groups, legal groups and think tanks have advocated against a broad understanding of religious freedom protections. The American Civil Liberties Union has received funds from groups like the Arcus Foundation for projects to “beat back” religious exemptions, grant listings show.
The foundation, founded by billionaire heir Jon Stryker, has also funded some Catholic dissenting groups. Stryker was a major funder of the effort to redefine civil marriage in the United States.
The ACLU of North Carolina said that Billard is also represented in the lawsuit by the ACLU LGBTQ Project and the law firm Tin Fulton Walker & Owen. In March 2021 the national ACLU announced that it would rename its LGBTQ & HIV Project for Stryker and his same-sex spouse Slobodan Randjelovic, who made a $15 million grant to the project.