LGBTQ Win for Billard: For Now or For Ever?

Many Bondings 2.0 readers responded positively to the news we reported recently that a married gay teacher who had been fired from a Catholic school had won his suit against the responsible church officials. Many readers also had questions about how the decision was argued, wondering if the judge’s legal reasoning would hold up on appeal, and if this case might be a precedent for other similar cases.

Bondings 2.0 editors sought out Professor Leslie Griffin to explain the legal reasoning in the case. Professor Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, School of Law. Professor Griffin, who also has a doctorate in Religious Studies and was on the faculty of the Theology Department at the University of Notre Dame, Indiana, is a leading expert on the intersection of religion and law. She has filed several amicus curiae briefs with the U.S. Supreme Court on religious liberty cases. At the end of last year, she conducted a webinar for New Ways Ministry on the U.S. Supreme Court cases of 2020 which touched on LGBTQ issues.

Last week, news broke that the case, Billard v. Charlotte Catholic High School, Mecklenburg Area Catholic Schools, & Roman Catholic Diocese of Charlotte, was decided pro-Billard on September 3, 2021. Yet it started long ago—in 2014. Lonnie Billard worked at Charlotte Catholic High School for thirteen years, as a full-time English and drama teacher from 2001-2012, and then as a substitute teacher after he retired from full time teaching at age 66. On October 25, 2014, he announced his same-sex marriage to Richard Donham on Facebook. The school then fired him. Billard has never been hired for any teaching since the announcement of his wedding.

Title VII Lawsuit

In the case, Billard was the Plaintiff and the high school, school district, and diocese were the Defendants. Billard filed for sex discrimination under Title VII of the Civil Rights Act of 1964 because he was fired for his relationship with another man. For a number of years, the parties debated whether Title VII prohibited sexual orientation discrimination. Only in June 2020 did the Supreme Court, in Bostock v. Clayton County, a 6-3 decision written by Justice Gorsuch, rule that Title VII’s ban on sex discrimination prohibits discrimination on the basis of sexual orientation.

Judge Max O. Cogburn Jr., United States District Judge for the Western District of North Carolina, relied on Bostock to rule that Billard had stated a successful Title VII claim. The school argued that it had fired Billard because of his advocacy of same-sex marriage, not for his marriage, and they would treat everyone advocating same-sex marriage the same. The district court disagreed: “Defendants admit that while they fired Plaintiff for his actions, they would only have reprimanded a straight teacher who spoke positively about same-sex marriage.” That is different treatment on the basis of sexual orientation, which Title VII prohibits.

Sections 702 and 703

The Catholic defendants then argued that they could not be sued under Title VII because Sections 702 and 703 of the statute gave them a religious exemption, meaning they could not be held liable under the law. A Catholic victory on this issue would give Catholics and other religions full freedom to discriminate against everybody. The court shrewdly pointed out that the religious exemption means religious institutions are free from lawsuits for religious discrimination, so they can favor members of their own religion over others. The court and the statute are very clear, the court explained: the religious exemption cancels religious discrimination lawsuits, but not lawsuits for sex discrimination. The Catholic defendants had discriminated against Billard because he was gay, and prohibition against that applies to religious defendants, too. Quoting the Southern District of Indiana, the court stated, “If Congress had intended to allow religious employers to avoid liability for discriminating on the basis of race, sex, or national origin, it could have done so.” It did not.

Church Autonomy

The defendants next argued that the “church autonomy doctrine” gave them freedom to violate Title VII. Church autonomy is almost always a dangerous rule holding that religions are free to disobey any and every law as a matter of their autonomy. Churches have sometimes used it to defend their sexual abuse of children. This court did not buy that argument; neither should you.

In the church autonomy section of the opinion, Judge Cogburn mentioned the ministerial exception, that terrible rule that allows almost all lawsuits by a “minister” against his or her religion to be dismissed. I call this exception the “minex.” Last year the Supreme Court ruled in Morrissey-Berru that two lay Catholic school teachers were ministers, even though the Ninth Circuit had more accurately ruled that the teachers were teachers, not ministers. That opinion set up the possibility that almost every elementary, secondary, college or university teacher, as well as many of the employees of hospitals and nursing homes, would never get into court, as Justice Sotomayor warned in her dissent.

Fortunately, in this case, the school could not win the minex argument, because it had stipulated that Billard was not a minister. Even if they had not so stipulated, the judge said by law Billard was not a minister. Why not? He was a secular teacher of English and Theater. Moreover, the “Catholic High School administration prefers that secular teachers, like Plaintiff, avoid discussing Catholic doctrine.” The school would have lost their ministerial exception argument if they had made one, instead of stipulating Billard was not a minister. That will save Billard from an appeal on that question. Which is good, because many courts are willing to call anyone a minister.

RFRA

Defendants also argued that the Religious Freedom Restoration Act barred Billard’s lawsuit, because they had the religious freedom to discriminate against him. RFRA has done a lot of damage, as followers of the Court’s contraceptive mandate jurisprudence will recall. RFRA exempted employers from having to give their employees contraceptive insurance in the Hobby Lobby case. RFRA reappeared in Little Sisters of the Poor, when the Court next upheld President Trump’s expansion of the number of employers who were exempt from providing such insurance. Justice Alito’s concurrence argued that the larger exemption was required by RFRA.

In Billard’s case, the court ruled that RFRA limits the government’s actions, but cannot be the source of a lawsuit between private parties. The contraceptive cases were about government requirements. RFRA allows a suit when the government has substantially burdened the exercise of religion. “RFRA only applies when the government is a party.” No government was present in the lawsuit between Billard and the Charlotte Catholics.

On this point, Judge Cogburn cited Judge, not Justice, Sotomayor, who dissented in Hankins v. Lyght, a 2006 Second Circuit case that ruled RFRA applies to private parties. Even the Second Circuit later questioned that ruling. Cogburn explains why Judge Sotomayor was right to follow the language of the statute saying RFRA does not apply to private lawsuits. Other circuit courts have also agreed with Sotomayor’s dissent that lawsuits between private parties are excluded from RFRA coverage.

Cogburn concluded, “Since the plain meaning of the statute is clear, the Court’s job is at an end.”

Freedom of Expression and Association

Defendants then argued that their conduct involved freedom of expression and freedom of association, and therefore could not be a source of liability. The court rejected these novel claims, explaining that “it disregards clear precedent that freedom of expressive association is inapplicable in commercial contexts where Title VII’s antidiscrimination provisions apply.” The court added that “hiring paid employees is commercial activity, not expressive association.”

Defendants relied on Boy Scouts v. Dale to support their association claim. In that case, the Court ruled that a Scout volunteer could not hold the Boy Scouts to the public accommodations law because of their freedom of expressive association. Cogburn clarified that Boy Scouts involved a volunteer and law in places of public accommodation, whereas Billard’s case “involves a violation of employment protections.” Moreover, Title VII meets the compelling state interest test, allowing it to regulate employment. Cogburn concluded, “Plaintiff’s right to be free from sex discrimination in employment under Title VII is a compelling interest of the highest order.”

The court respected Billard’s status as a value of the highest order.

Recognized Defenses

The school’s arguments were not surprising, because Justice Gorsuch had discussed them in Bostock, an LGBTQ case that did not involve religious liberty. He noted that religions had a statutory exemption to Title VII, although he did not explain very well that it applies only to lawsuits for religious discrimination. He stated that the ministerial exception might make a difference in future cases. And he said that RFRA might “supersede Title VII’s commands in appropriate cases.”

I hope this is not one of those cases, and that the district court’s order will not be reversed or limited by the Fourth Circuit Court of Appeals.

The Result of Billard

Title VII applied to Billard’s case. The court’s holding was direct: “the Court holds that Defendants are liable for sex discrimination under Title VII. This case will now proceed to trial to determine the appropriate relief that should be granted.”

Critics fear that the monetary damages will be enormous. The defendants are “considering next steps.” I hope this ruling stands for now and forever, without being reversed by the Fourth Circuit based on Gorsuch’s positive comments about religious freedom in Bostock. The Court’s recent Fulton decision allowing Catholics to disobey Philadelphia’s ban on LGBTQ discrimination in awarding foster children is a good reminder that the Court does not always protect LGBTQ rights over religion. I hope this decision affirming LGBTQ rights stands.

—Leslie Griffin, September 17, 2021