Is Christianity Still Legal? And Other Awkward Questions Raised by the 2nd Circuit Court

By John Zmirak Published on March 1, 2018

Read this report from Buzzfeed. Then see what questions it raises in your mind. I’ll share with you those that occur to me.

A federal appeals court on Monday ruled that a 1964 civil rights law bans anti-gay workplace discrimination. The decision rebukes the Trump administration — which had argued against a gay worker in the case — and hands progressives a win in their strategy to protect LGBT employees with a drumbeat of lawsuits.

The dispute hinges on whether Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, also bans workplace discrimination due to sexual orientation.

According to Reuters, the case hinged on the story of “Donald Zarda, a former skydiving instructor on Long Island who said he was fired after he told a customer he was gay and she complained.” Zarda is dead but his “estate was backed in the appeal by dozens of large companies, including Alphabet Inc’s Google, Microsoft Corp, CBS Corp and Viacom Inc.”

Such a ban on discrimination against overt or active homosexuals (how else would one know?) still couldn’t pass Congress. So gay activists have been trying to obtain it through the courts. The Obama administration Justice Department and EEOC were already treating this theory as true. So Maggie Gallagher reported here at The Stream. (In fact, bizarrely, Donald Trump’s own EEOC representative sided with LGBT activists here, while the Justice Department opposed them.) She noted that the 7th Circuit Court also supported this reading of the 1964 law.

What’s the logic behind the decision? Here you go:

In reaching its decision Monday, the court pointed out that anti-gay discrimination would not exist “but for” a person’s sex. That is to say, gays, lesbians, and bisexuals would not experience this type of unequal treatment had they been born a different gender, or were attracted to a different sex.

“A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the majority wrote in an opinion led by Judge Robert Katzmann. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

How’s that for an argument? A rational observer might see the common thread in such discrimination. Namely: Someone who sexually interacts with someone of the same sex, whether that’s male or female. That’s how we traditionally define homosexuality, after all. And it applies equally to men and women. Now, if a business only discriminated against male homosexuals but hired plenty of lesbians, then that might be sex bias, since it applied that standard unevenly.

Could some porn sites be in trouble here? Probably not, since liberals hold them exempt from applicable laws against prostitution and obscenity too. When Ross Douthat called for existing federal laws to be enforced to diminish porn, he met a storm of scorn. You’d have thought that he’d tried to impose Canon Law on America. Some things are sacred after all.

Now let’s get to those questions.

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Is Christianity Still Legal?

If disfavoring those who proclaim that they are active homosexuals is illegal under the same Act that bans racial discrimination, that tells us several things. First, that Christian orthodoxy is at odds with U.S. law — just as the prejudices of white nationalists are. While we might agree that in many cases discrimination against “out and proud” gay people is unjust, a blanket ban would cripple Christian’s free exercise of religion. Our schools, colleges, and maybe even our churches would have to employ people whose open lifestyle violates Christian morals. How much credibility does a Catholic school have, for instance, on sexual ethics when its teachers talk about their same-sex spouses? How could a Christian college stay true to biblical ethics, when same-sex couples lived in its married student housing? 

LBGT activists are furiously trying to drive Christian adoption agencies out of business. Why? Because they won’t in conscience place children in homes with same-sex couples. Read Tyler O’Neil on how powerful, well-funded gay activists groups are fighting religious exemptions from anti-discrimination laws. 

The threat such anti-discrimination laws pose to religious liberty is what Justice Alito worried about in the arguments over Obergefell. Would the IRS try to take tax exemptions away from orthodox churches that rejected same sex marriage? Would the feds deny contracts to such churches? And Obama’s solicitor general shrugged, and essentially said, “Well, yes we will.” As I wrote back in 2015:

Imagine if your house of worship needed to turn a hefty profit, so it could pay the same taxes on its property and income as a casino or a strip joint — unlike Planned Parenthood, since that abortion business is a tax-exempt (and federally funded) “charity.” Imagine if none of the money you gave your church were deductible from your taxes, unlike the money you sent to Greenpeace. Many if not most religious schools and colleges would also shut their doors, unable to pay the same business taxes as for-profit diploma mills.

The First Amendment won’t prevent any of this. When the dictates of a religion conflict with what courts have ruled is a constitutional right, the church’s claims give way every time.

We are now one giant step closer to all that happening. If the Supreme Court upholds this decision, look for massive pressure inside churches to simply give way on central Christian moral teachings. Then the vast leviathan of the federal government will join the cultural elites, the colleges, and gay-spooked big business in treating Christian faith as some marginal, oddball, hateful view of the world.

How quickly this happened. Remember that as recently as 2008, Barack Obama wouldn’t admit that he favored same-sex marriage. Things can get much worse quickly. If we don’t fight back, they will.

On to the next question:

Do the Words Used in Framing Laws, and the Intent of Legislators, Mean Anything At All?

A little history here. The Civil Rights Act of 1964 at first just covered race. Southern racist Democrats added sex discrimination as a “poison pill.” They thought that mandating sex equality would lead Republicans to spike the bill. Oops. The Act passed anyway.

If the Supreme Court upholds this decision, look for massive pressure inside churches to simply give way on central Christian moral teachings. Then the vast leviathan of the federal government will join the cultural elites, the colleges, and gay-spooked big business in treating Christian faith as some marginal, oddball, hateful view of the world.

Sodomy was still illegal in 49 states, as Slate reports. Is it possible that the legislators intended by the Civil Rights Act to overturn such laws? Did the Supreme Court ever interpret the law that way? Clearly not. Indeed the Court did overturn such laws. But it did not cite the Civil Rights Act as a reason.

So what we’re seeing here is the kind of judicial “creativity” found in Roe v. Wade. That decision invented a right to privacy, and hence to abortion. How? It cited the Constitution’s ban on unlawful search and seizure. Like Roe, this decision is simply lawless. It’s a power grab by judges and the elites from whom they spring. (Notice how many billion-dollar corporations, like Microsoft and Google, filed briefs in support.) All at the expense of mere, grubby voters.

Just to reiterate: Congress has never voted to include “sexual orientation” as a protected category under anti-discrimination law. Such a law would threaten the religious liberty of Christians. Appointed judges are trying to shoehorn that meaning into a completely unrelated law passed 54 years ago. This is neither democratic nor constitutional. It is naked rule by decree.

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  • Stephen D

    I cannot understand the argument against discrimination in employment in private enterprise. Surely private enterprises are not arms of the government, mandated to treat all people equally. Why should they not employ whoever they want? Their uncle, their grandmother, their best friend. Conversely, why should they not be free to refuse to employ somebody they do not want, for any reason, including both sex and sexual orientation? I simply cannot understand how private enterprise can legitimately be forced to become an instrument of any government policy regarding discrimination. Has America lost interest in liberty now?

    • Paul

      I think the liberty fought for in the Revolution would scare far too many today, whether it is living off their neighbors tax dollars or otherwise using the force of govt to tell others what to do

      • Lisa

        I agree. It seems freedom (of speech, free exercise of religion, etc.) isn’t looked upon in the same way by Americans as at the founding of this country. Maybe people are weaker and scared of living with freedom and the responsibility that goes with it. Totalitarian regimes probably get started by frightened people who want government to take care of them or fix something.

        • Paul

          Yes. Liberty demands a lot more personal responsibility than most can imagine. I look at the second amendment for example. Those who are serious supporters of it today rarely discuss the first part, their participation in a militia. “A well regulated Militia, being necessary to the security of a free State, …” How many gun owners are involved in protecting their communities in a militia? Read it again, the founders assumed there would continue to exist citizen militias, they considered it necessary to the security of a free State. We’ve handed that function to govt to pay someone else to risk their lives doing it, but in the process have traded away liberty in pursuit of a false security. And those few who do participate in a militia are now deemed by govt as a threat to their assumed monopoly an authority rather than necessary to security. So now supporters seem to only focus on the personal right to keep and bear arms, as if the 2A is limited to personal security within the confines of our private property. Living out the 2A is that but so very much more.

    • Bryan

      I’m with you. If I am employed by a company or a person and I find myself at odds with something, I have the freedom to leave. If I were gay, I would not want to be employed by a church that believed the biblical standard for marriage. If I were a woman and wanted birth control medicine covered by my health insurance plan, I would not work at Hobby Lobby.
      There should be some sort of consideration against unjust prejudice (and no, I don’t really know how to define that better, I just know that people can do hateful things in the name of religion and get away with it when it is really nothing more than preference) but the consideration of deeply held religious beliefs needs to be upheld as well.

  • Patmos

    Nevertheless we, according to his promise, look for new heavens and a new earth, wherein dwelleth righteousness.

  • Kevin Quillen

    if this abomination passes the court, watch how fast churches buckle under and suddenly decide to acquiesce to queer marriage. the tax exemption is more important that truth. The time for Christian Anarchy is now, but sadly, it will not be so. America is lost. The founders vision is getting cloudier everyday.

    • Andrew Mason

      I’d be skeptical about that. Liberal churches would keep their tax exemption, but they’re already preaching homo-Satanic theology. Bible believing churches would have to make a choice, keep their tax breaks, or keep their faith. Sure some would buckle, but many wouldn’t. Perhaps it would be another sorting of the wheat from the chaff? ‘Churches’ in Sharia Law and Communist nations survive, even flourish, despite greater discrimination against them.

      • Those churches that are lead by those who really are blood-bought will already know that they are required to obey the human government EXCEPT where that human government commands them to commit, or participate in the commission of, sin. Those who really are blood-bought will, of course, gently, and graciously, refuse to comply. This will cause the ungodly government to expose itself for what it truly is, because they will not be able to simply let it be.

      • Chip Crawford

        And having shed this world’s provision, choosing God will bring HIS supernatural provision. Stand back, church; your best days are ahead. Stand back, world; greater is He who is in us, than he that is in the world. Man didn’t give it, and man can’t take it away.

    • Paul

      What is meant by Christian Anarchy? On the surface it seems like an oxymoron.

      • Ken Abbott

        And hardly in keeping with Paul’s instructions regarding the lives of believers.

        • Paul

          Perhaps Kevin is referring to Christian Anarchism wikipedia(DOT)org/wiki/Christian_anarchism

          • Kevin Quillen

            I actually did not know the term was already in use. It is a philosophy that I came to after many years of studying the Bible and the founding of our country. I think most of the founders would agree. I have not read the wikipedia piece so I do not know if I agree with what is stated there. Please do not assume that is what I believe.

        • Kevin Quillen

          Are you referring to the Paul who was stoned and beaten nearly to death on several occasions because he would not stop preaching the gospel? Did he obey the government?

          • Ken Abbott

            The conventional definition of anarchy–which literally means “no rule,” a state of “rulerless”-ness (from the Greek anarchos) or “no government”–commonly refers to a condition of lawlessness or political disorder, even societal chaos. HIstorically, an anarchist has advocated the use of violent means to overthrow the existing order, or at the least rebels against any authority or established order. So, no, there should not be anything such as a Christian anarchist, for such violates the teachings of Paul in Romans 13, 1 Thessalonians 4:11-12, 1 Timothy 2:1, Titus 3:1-2, and his explicit call for decency and good order in the church (1 Corinthians 14:40), which I would argue carries over into the whole life of a Christian. For we are children of a God of order, not chaos.

            There is an important distinction between obedience to lawful government and unlawful government. We must be cognizant of our obligation to obey God rather than men when the latter try to compel us to do things God has forbidden or not to do things God has commanded. So the apostles were right to disregard the strictures of the Sanhedrin and in every instance they were right to continue to preach the gospel despite opposition from religious and secular authorities, even if it meant submitting to penalties. Since the time I originally posted, you have defined what you mean by Christian Anarchy. I actually have little or no argument against what you posted in response to Paul late yesterday. But I think I would choose another term than “anarchy,” because it is liable to cause confusion. In truth, you don’t advocate that there should be no government but the higher authority of God as revealed in his word and by the conscientious leading of his Spirit takes precedent.

      • Kevin Quillen

        Christian Anarchy is the idea that a Christian should live by the Bible. If and when the government passes laws contrary to the Bible, we should simply refuse to oblige, take what comes and never go against our principles. Churches and individuals alike. Churches should give up their tax exemption, stand for righteousness never shut up or sit down. This means that queer marriage should never be recognized, churches should band together to elect Godly men and women to office, sin should always be called out and made light to shine upon it. Raise children Biblically. Reject government schools, home school or have a community of believers teach at churches. Many options, but the point is to get government out of the teaching and raising children. The government will tell us that we have to meet certain standards so this is where the anarchy comes in. Simply refuse to acquiesce and do what is right in God’s sight. Strength in numbers and God will be on our side. The anarchy principle applies to many situations. If a church wants to feed the homeless in a city park, then do it. No permit required. If a church wants to preach the gospel on the town square, then do it, no permit required. The government must be shown that they are not the highest authority. By the way, all of the above is Constitutional too.

    • Chip Crawford

      You speak from what you know. Some of us know far better than that, dear brother, and have already lost their reputations and experienced a measure of the glorious liberty of the sons of God. I pray you be added to a more vibrant company of believers. There are some pleasant surprises for Christians when the strong are revealed, who stand, stand up and stand out. They’ve already been marked by the devil for standing up for decades to things and stood him down. They will continue and then show the rest how it’s done.

  • Howard Rosenbaum

    It may seem like an oversimplification to suggest that the objective of a so called civil rights decision based on sexual preference is as the article implies a strategic assault on Christian liberty. Sure, the agenda here is packaged to appear as though it’s only in the interest of “equality’ so called thats being promoted. What fair minded person opposes equality ?
    So the issue at hand becomes not a direct attack on people of faith but a back door kick in the butt for those ( Christians ) perceived to be “uncivil “.
    So should we bend over & oblige these a** kickers?! Of course not. The issue becomes something much more profound than simply partisan political pandering. It is a challenge from the left undergirded by unseen personages bent on the annihilation of the church. ( The body of Christ ) This is first & foremost a spiritual battle manifested through manipulated government hacks.
    Look , we’ve already won all of these battles through the grace of God that shed innocent blood to cover all of these kinds of things. As the Church ( the real deal church ) comes together united both politically ( yeah even those who still call themselves democrats ) & prayerfully things will change for the better.
    Yeah, I know this world is not our home & there are Christians suffering horrifically under wicked rule around the world. Sure the kingdom of God is not of this world & we are in the world but not of it . Yet nothing in these biblical precepts suggests that we ignore our God given ability & right to resist these assaults.
    Yeah, resist. ( the devil & he will flee ) Thats kinda where fighting the “good fight of faith” comes in. You know those “weapons of our warfare” kind of thing. God is in control. He is in control of those things He’s delegated for us to control. I’ve heard it said , “not by might or by power but by My Spirit – so said the Lord ” …

  • Brian T

    “How much credibility does a Catholic school have, for instance, on sexual ethics when its teachers talk about their same-sex spouses?” The same credibility it has by tolerating teachers and other employees in invalid marriages and other sexual relationships She rejects. It important for us not to discriminate because of who someone is, but to discriminate consistently based on what they do. We must equally accept or reject sexual relationships in both hetero and homo non-marriages.

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