➤ SUBSTITUTE TEACHER, from p.14
preme Court Justice Neil Gorsuch’s
reasoning in the Bostock decision
of 2020. The judge pointed out that
a female teacher who posted an announcement
on Facebook that she
was marrying a man would not
be discharged, but when Billard,
a man, posted the announcement
that he was marrying a man, he
was discharged, so clearly his sex
was a reason for his discharge. Justice
Gorsuch had described similar
hypothetical situations in explaining
the Supreme Court’s conclusion
that fi ring an employee for being gay
was inescapably due, in part, to the
employee’s sex, and thus prohibited
by Title VII, even though members
of Congress in 1964 would not have
expected such a ruling. Gorsuch, a
“textualist,” takes the view that the
words of the statute take priority
over the expectation or intentions
of the legislators who passed it, and
his view won the support of six of
the Court’s nine members.
As to the express religious institution
exemptions included in Title
VII, the court concluded that they
were not intended to excuse religions
institutions from complying
with Title VII’s ban on discrimination
because of sex. Rather, they
were enacted to allow religious
institutions to prefer members of
their faith in making employment
decisions. Billard is a Catholic,
and the court was unwilling to accept
the school’s argument that a
provision allowing it to discriminate
because of religion also gave it
a right to discriminate because of
sex if it had a religious reason for
doing so. Under that theory, a religious
institution would be free to
discriminate on the basis of race,
color, national origin or sex, the
other categories prohibited under
Title VII, which stretches the religious
exception too far and would
expose thousands of employees of
religious institutions to discriminatory
treatment. Congress has
not given religious institutions free
reign to discriminate against employees
for reasons other than the
employees’ religion.
As to the Religious Freedom Restoration
Act, many federal appeals
courts have ruled that it applies
only to situations where the government
is suing to enforce a federal
statute against a religious defendant,
but not to lawsuits brought by
private individuals. Although the
Supreme Court has yet to rule on
this question, and at least one appeals
court has disagreed with that
conclusion, Judge Cogburn found
based on a close reading of the text
of RFRA that it was clearly aimed to
restricting enforcement actions by
the government, and that a court
decision in a lawsuit brought by a
non-governmental litigant, such as
Lonnie Billard, would not be subject
to RFRA’s requirement that the government
prove it had a compelling
interest to enforce a federal law that
burdens the defendant’s free exercise
of religion. The court itself is
not a “party” to a non-governmental
lawsuit, and in the absence of a
governmental party, the affi rmative
defense provisions of RFRA have no
application.
Several lawsuits are pending
around the country in which employees
of Catholic institutions who
were discharged over the same-sex
marriage issue are seeking relief
under Title VII. In many of them,
the plaintiffs’ job duties were such
as to bring them within the ministerial
exception. Billard’s is the rare
case that was not, at least according
to Judge Cogburn’s analysis.
Having granted Billard summary
judgment on the merits of his
claim, Judge Cogburn ordered that
the case “Proceed to trial to determine
the appropriate relief that
should be granted.” It is likely that
to avoid a court order to reinstate
Billard as a substitute teacher, the
school may offer a substantial fi -
nancial settlement. Title VII specifi
cally lists “reinstatement” as a
remedy for a wrongful discharge. If
the case doesn’t settle and Judge
Cogburn orders reinstatement, the
school and the Roman Catholic
Diocese of Charlotte, a co-defendant,
are likely to appeal to the
Fourth Circuit Court of Appeals.
Judge Cogburn was appointed
to the court by President Barack
Obama. In 2014, he wrote the decision
striking down North Carolina’s
ban on same-sex marriage,
a decision that was upheld by the
Fourth Circuit and denied review
by the Supreme Court, and it was
the decision that led Billard and
Donham to decide to get married
that led to this lawsuit!
YOU ALWAYS
KEEP THEM SAFE.
WITH VACCINES,
THEY’LL BE
EVEN SAFER.
CHILDREN AGES 12-17 CAN NOW BE VACCINATED AGAINST COVID-19.
Get your child vaccinated for a safe return to school. Children who have been
vaccinated against COVID-19 are less likely to get and spread COVID-19.
LET’S KEEP OUR CHILDREN SAFE AND OUR SCHOOLS COVID-FREE.
For more information about COVID-19 vaccines
and where to get one, visit nyc.gov/covidvaccine.
GayCityNews.com | September 9 - September 22, 2021 15
/covidvaccine
/GayCityNews.com
