SCOTUS Ruling May Be Tested After Gay Teacher Fired

There is already a test of how last month’s major U.S. Supreme Court decision in favor of a web designer who did not want to work for gay couples, known as “303 Creative,” will play out as Charlotte Catholic High School fights a ruling that it engaged in sex discrimination for firing teacher Lonnie Billard due to his marriage to another man, The Washington Post reported on Tuesday.

The day that the “303 Creative” decision was issued, the Becket Fund for Religious Liberty wrote in a letter to the U.S. Court of Appeals for the 4th Circuit, on behalf of Charlotte Catholic High School, that “if the First Amendment protects a business’s decision about which services to offer the public, it… protects a church’s decision about who is religiously qualified to fulfill the mission of a religious school.”

The court had already delayed Billard’s case for that decision, and now, oral argument is being scheduled for September.

The Supreme Court has also already ruled that discrimination laws are not applicable to employees of a religious institution who engage in ministerial work, but Charlotte Catholic has not argued that Billard’s job was ministerial, according to The Washington Post.

So instead of pressing for the “ministerial exception,” Becket is claiming that a religious school’s employment choices are “expressive association” protected by the First Amendment, just as the web designer successfully argued that she has the right to decide which marriages to celebrate with her work.

Liberals on the Supreme Court warned against the possibility of 303 Creative being applied to employment. “The potential implications of the court’s logic are deeply troubling,” Justice Sonia Sotomayor wrote, suggesting a law firm refuse female partners on the grounds of speech. In his majority opinion, Justice Neil Gorsuch called those concerns “pure fiction.”

The American Civil Liberties Union, which is litigating Billard’s case, referenced that comment to illustrate that the decision has no applicability in Billard’s lawsuit.

“The court rejected the dissent’s assertion that its decision opened the door to discrimination in employment,” ACLU attorney Josh Block wrote in a reply to Becket’s letter.

While the Supreme Court has specifically said preventing racial discrimination is a compelling government interest that justifies restricting First Amendment freedoms, Luke Goodrich, who is litigating the case for the Becket Fund, noted that it has rejected such a finding on discrimination against gay or transgender people.

George Washington University Law School Prof. Ira Lupu, who studies First Amendment-related religious jurisprudence, is skeptical that the Supreme Court would take a position that would endanger thousands of secular employees at faith-based institutions, The Washington Post reported.

“The very fact that he is in a same-sex marriage and that he’s identified that on Facebook, not on campus, not in his job — you cannot attribute that expression to the school,” he said.

It would be different, he said, if the employee was vocally opposing Catholic doctrine on same-sex marriage on the job, which might “compromise the mission” of the school, Lupu said. He says the Supreme Court is “interested in protecting” religious organizations that get rid of such employees. “But cleansing their ranks of everyone who is LGBT is way more than just protecting their mission.”