Federal Judge Finds Anti-Discrimination Exemptions
Infamous anti-LGBTQ District Judge Reed O’Connor strikes again
BY ARTHUR S. LEONARD
US District Judge Reed
O’Connor issued a ruling
on October 31 in
a case brought by a
Christian Church and a Christian
owned business that wanted
a court order to stop the Equal
Employment Opportunity Commission
from investigating or prosecuting
them or similar employers
for refusing to employ people who
engage in gay sex, marry same-sex
partners, or seek medical treatment
to conform their bodies with
their gender identity.
O’Connor, adopting a strained
interpretation of a religious exemption
provision in Title VII, found
that the statute protects church
employers from liability in such
cases, and certifi ed a plaintiff
class of religiously-operated forprofi
t businesses after concluding
that they were protected from Title
VII enforcement actions by the government
in such cases by virtue of
the Religious Freedom Restoration
Act (RFRA) and the Free Exercise
Bear Creek Bible Church in Texas is a plaintiff in a case that led to a ruling by US District Judge Reed
O’Connor on October 31.
Clause of the First Amendment.
O’Connor also concluded that
religious businesses and other
businesses that object to homosexual
conduct, want to enforce gender
specifi c dress codes at work,
and want to restrict restroom use
based on “biological sex” may do
so without violating Title VII, but
that under the Supreme Court’s
GOOGLE MAPS
decision last June in Bostock v.
Clayton County, employers may
not discriminate against individuals
undertaking gender transition
procedures or because they engage
in “bisexual conduct.”
The plaintiffs, who proposed to
be “lead plaintiffs” for class action
purposes, are Bear Creek Bible
Church and Braidwood Management,
LEGAL
Inc. O’Connor decided to
divide up the proposed class — essentially,
all employers with religious
or philosophical objections
to homosexual conduct, same-sex
marriage, or gender transition —
into three separate classes, which
he labeled as Church-Type Employers,
Religious Business-Type Employers,
and All Opposing Employers
(a group encompassing those
who are opposed to homosexual
conduct, same-sex marriage, and
gender transition for any reason,
including non-religious reasons).
Title VII of the Civil Rights Act of
1964 prohibits discrimination because
of race or color, religion, sex,
or national origin. Last June, in
Bostock v. Clayton County, the Supreme
Court interpreted the ban
on sex discrimination to include
discrimination because of sexual
orientation or gender identity. Reacting
to the decision, the Equal
Employment Opportunity Commission
has adopted interpretive
guidelines going beyond the Su-
➤ EXEMPTIONS, continued on p.16
➤ SOCIAL SECURITY, from p.6
Lambda in Washington State in
2018 — was represented by Helen
Thornton, who lived for 27 years
in a marriage-like relationship
with Margery Brown that would
have been legalized were marriage
equality available in the state of
Washington when Brown died in
2006. That was one year before
Washington recognized domestic
partnerships and six years before
it allowed same-sex marriages.
In January of 2015, Thornton applied
for survivor’s benefi ts based
on Brown’s record of covered
work. For purposes of determining
“standing” to sue, the government
conceded that the women would
have married had it been possible
to do so.
Social Security denied Thornton’s
application, stating that because
the women were not married
when Brown died, it could not
recognize Thornton as a legal surviving
spouse and, at the time of
her death, the State of Washington
did not recognize same-sex marriages.
Lambda’s lawsuit claimed
that because the failure to allow or
recognize same-sex marriages was
unconstitutional, the government
must accord surviving spouse status
to those who can prove they
would have been married had it
been possible. The district court
referred the case to Magistrate
Judge J. Richard Creatura.
Judge Creatura recommended
certifying a class consisting of “all
persons nationwide who presented
claims for social security survivor’s
benefi ts based on the work history
of their same-sex partner and who
were barred from satisfying the
marriage requirements for such
benefi ts because of applicable laws
that prohibited same-sex marriage,”
but excluding people whose
disqualifi cation was due to the
nine-months rule, since they would
be class members in the Ely case.
The judge also recommended that
the district court order the government
to reconsider class members’
claims and not to deny benefi ts to
class members without considering
whether they “would have satisfi
ed the marriage requirements
but for applicable laws that prohibited
same-sex marriage.”
On September 11, 2020, District
Judge James L. Robart accepted
Judge Creatura’s report and recommendations,
issuing the appropriate
orders. The Trump Administration
promptly appealed both
decisions to the US Court of Appeals
for the Ninth Circuit.
The Biden Administration’s decision
to withdraw the appeals
means that both decisions can go
into full effect. In an announcement
released on November 1,
Lambda stated, “For the fi rst time,
surviving same-sex partners who
were barred from marrying when
their partners were alive have the
same pathway to benefi ts if they
apply now or in the future as those
protected by last year’s ruling in
Thornton, which had been limited
to people who had previously applied
by November 20.” Lambda
has published guidance about the
implementation of the rulings on
its website, lambdalegal.org.
The Biden Administration’s decision
to go beyond the scope of the
Thornton ruling, which was based
on the composition of the proposed
class at the time Judge Robart
signed his order, is an application
of the general policy adopted by
President Biden on Inauguration
Day when he signed executive orders
mandating equal treatment
by the federal government for LGBTQ
people and directed federal
agencies to adjust their policies accordingly.
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