Nondiscrimination Protections by Judicial Decree?

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Columnist Steve Chapman writes that a lawsuit heard Nov. 30 by the 7th Circuit Court of Appeals in Chicago could find that the statutory expansion of the Civil Rights act to bar discrimination on the basis of sex should now be interpreted to cover sexual orientation.

Well, that would be preferable to the proposed Equality Act’s gutting of the Religious Freedom Restoration Act, sought by the Human Rights Campaign and other progressives who are hot to stick it to people of faith.

5 Comments for “Nondiscrimination Protections by Judicial Decree?”

  1. posted by Tom Scharbach on

    In either case (a court decision protecting gays and lesbians under the Civil Rights Act of 1964 or legislation protecting gays and lesbians under the Civil Rights Act of 1964 while exempting the Civil Rights Act of 1964 from application of RFRA), the Employment Division “substantial burden, rational basis” test will govern claims of religious exemption to the Civil Rights Act of 1964.

    I don’t agree with the idea of reinstating the “rational basis” test in the case of the Civil Rights Act of 1964, because I believe that the Sherbert/Yoder (“substantial burden, compelling state interest, least restrictive means”) test should be applicable to all laws, federal, state and local, but that is not where we are as a constitutional/legal standard at this point in our history.

    But it isn’t as if “gutting of the Religious Freedom Restoration Act” leaves “people of faith” stripped of protection. Employment Division does protect “people of faith” in many cases if a “substantial burden” upon free exercise is established and the state cannot establish a “rational basis” for the law in question.

  2. posted by JohnInCA on

    Should the CRA’s protections from workplace harassment apply to a woman sexually harassing a man? If you said “yes”, then you’re already on-board with “judicial decree” the only question is “how much”.

    • posted by TJ on

      In 1998 the USSC- even Justice Scalia – said that one of the sexual harassment laws apply even if the alleged victim and dependent were of the same gender.

      The problem is that lower courts were divided about whether it had to just be sexual harassment or could anti-gay malice be involved…..

      The conservatives in Congress don’t want to include SOGI in a civil rights bill because of personal objections or because they don’t want the political fallout.

      Now maybe centrists could work something out, but why bother solving problems?

      I think lots of liberals just want civil rights and religious freedom. What’s wrong with that?

  3. posted by Throbert McGee on

    the proposed Equality Act’s gutting of the Religious Freedom Restoration Act, sought by the Human Rights Campaign and other progressives who are hot to stick it to people of faith.

    I don’t think they’re hot to stick it to people of faith; they’re hot to ensure that the Equality Act doesn’t pass anytime soon.

    • posted by Tom Scharbach on

      At present, RFRA applies the Sherbert/Yoder (“substantial burden”, “compelling government interest”, “least restrictive means”) test to the Civil Rights Act of 1964. Exempting the Civil Rights Act of 1964 from application of RFRA would restore the Employment Division (“substantial burden”, “rational basis”) constitutional standard to the law, which, of course, would lessen the likelihood of a successful challenge to application of the law.

      I think it as likely that the currently protected classes under the Civil Rights Act of 1964 (African-Americans and other racial minorities, women, Christians and other religionists, and so on) might be using the Equality Act as an opportunity to make it more difficult to impose a religious objection defense to racial, ethnic, gender or religious discrimination as it is that theory you propose.

      I don’t know, but I find it hard to buy into the “progressive gays and lesbians want to preserve discrimination” argument that you, Stephen and other homocons have been making. It doesn’t make much sense.

      My view is that the Sherbert/Yoder/RFRA test is the appropriate test, and just as I am loath to see a particular form of religious belief (i.e. religious objection to same-sex marriage) be granted special protection by the law over other forms of religious belief, I am loath to see a particular form of law (i.e. non-discrimination law) be granted special protection by the law over other laws.

      I think that concern over RFRA laws that follow the language of the federal statute is misplaced. The Sherbert/Yoder/RFRA test is not likely to permit martyred “bakers, florists and photographers” to discriminate against same-sex marriages, because (at least in the cases heard to date) none of the religious objectors have been able to make a plausible argument that baking a cake for, or providing flowers to, or taking photographs of a same-sex marriage constitutes a “substantial burden” on religious exercise, which is what is protected by the constitution.

      But therein lies the problem for conservative Christians and their political allies.

      The only way to ensure successful defense is to materially lessen or eliminate the “substantial burden” threshold. And that, it seems to me, is terrible public policy, throwing the baby out with the bathwater, allowing anyone claiming a religious objection of any kind to discriminate at will. It would be better — or at least more honest — to eliminate the non-discrimination laws across the board.

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