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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