By Andrew L. Seidel
Freedom From Religion Foundation
A federal court in Michigan has allowed a religious employer to discriminate against a transgender employee because “the Bible teaches that God creates people male or female,” and “that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” The employer, a funeral home director, claimed that allowing a transgender employee to “deny their sex while acting as a representative” of the company “would be violating God’s law,” so he fired the employee. The court upheld the termination in a ruling FFRF condemns.
You may remember when the Supreme Court used the Religious Freedom Restoration Act to allow a for-profit corporation, Hobby Lobby, to claim a religious belief and the privilege of imposing that on all its employees. Basically, RFRA allows religious people, businesses, and/or corporations to violate generally applicable laws by claiming that the laws conflict with their religious beliefs. (Read our RFRA FAQ here.)
The Michigan court’s decision is based on the Hobby Lobby case, “this court is bound by the majority opinion in Hobby Lobby,” which is based on RFRA.
Put a bit more simply, the court wrote, “as to the wrongful termination claim . . . the funeral home is entitled to a RFRA exemption.”
After the Hobby Lobby decision, I wrote a post for the Friendly Atheist, “Five Reasons the Hobby Lobby Decision Should Terrify You.” In it, I wrote that other cases were already being filed, “other cases [that] argue that religion can justify discrimination” and I pointed to a long history of religion being used to justify discrimination. Once we accept the rationale that religion can trump the law, that same rationale applies to people whose religion declares the white race superior to others, i.e., the KKK, Bob Jones University, segregationists, and anti-miscegenation proponents.
Freedom of religion allows every citizen to create his or her own religion, but it was never meant to allow people to act on those beliefs with impunity. But that makes the consequences of elevating personal beliefs above the law, which RFRA does, far more pernicious. The Supreme Court 150 years ago could not even envision such fallacious legal reasoning: “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” Now, the law bows to sincerely held religious beliefs.
FFRF has been sounding the warning about RFRA and authored the sole brief in that case arguing that the law was unconstitutional (thanks to the talented legal scholar Marci Hamilton).
In another article, we pointed out that RFRA and its state analogues were going to lead to discrimination:
The Religious Right is now using these laws to justify discrimination in the name of a god. They make that argument over and over again. Tony Perkins, president of the Family Research Council, has been explicit. He argues that these laws allow discrimination in the name of religious belief, citing the example of Barronelle Stutzman, the Christian who refused to provide flowers for a gay wedding. But even if no court ever buys the “religious freedom as a defense to discrimination” argument, why would we keep laws that justify discrimination — especially when the First Amendment protects what these laws purport to defend?
This case is the first instance where a court has upheld discrimination under RFRA that we’re aware of, but it can also be the last.
The best solution here is to repeal RFRA. Contact your representative and senator today and ask them to repeal RFRA. In the alternative, ask them to support the Do No Harm Act, which we’ve written about here and which would not permit RFRA to validate discrimination.
Portions of this post were published elsewhere. FFRF is a national nonprofit dedicated to keeping state and church separate and educating about nontheism. We depend on member support, please join today.