Last week the Supreme Court heard arguments in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, a case where a Christian funeral home was sued after it had terminated its male funeral director, the prominent face of the establishment to the public, after he “transitioned” to a female identity and adopted female attire – something that conflicted with the owner’s orthodox view that gender is a God-given, biological attribute. The funeral home’s Biblical beliefs were well known and had been publicized on its website.
But during the arguments, the issue of religious liberty was implied, rather than overt. The technical issue in the appeal centers around the paradoxical nature of “transgender” rights, and whether they should be read-into the prohibitions against “sex” discrimination in the Civil Rights Act of 1964.
On that point, Solicitor General Noel Francisco, representing the Administration, was clear, stating: “Everybody here agrees that Congress never thought that by prohibiting discrimination based on sex, they would also be prohibiting discrimination based on two very different traits, sexual orientation and gender identity.”
One wonders, then, why this appeal reached the Supreme Court in the first place. The answer is that a lower court – the U.S. Court of Appeals – ruled that the language of “sex,” a term originally intended to apply to biological man-woman treatment in the workplace, should be stretched to include a “transgender” individual, and then applied against the Christian funeral home. Thus, unelected federal judges, by updating what seemed to them to be lacking in the law passed by Congress in 1964, not only exceeded their interpretative province, but also trammeled the religious rights of a small Christian business in the process. When the constitutional separation of the Judiciary from the Congress becomes less than separate, and judges act as legislators, those who ought to be protected under the Free Exercise of Religion can often become the losers.
While Justices Sotomayor and Breyer pressed the Solicitor General on when the courts “have to step in” in order to eradicate discrimination in light of new understandings of what “discrimination” means, Francisco was unmoved: Congress, he said, has the province to make laws, not the courts. He argued: “I actually find it troubling for courts to take that [activist] approach because I actually think it deprives the people of the ability to struggle with these issues democratically.”
Justice Gorsuch, a new appointee to the Supreme Court, said it perhaps most succinctly. The case, he said from the bench, was simply one of “judicial interpretation” of a congressional act. The corollary to that, of course, is that the case should not be about a judicial “updating” of a law passed by Congress. If a majority of justices agree with that sound notion, the Christian funeral home should be victorious, and that would be a good thing for religious liberty, and for the courts.
By Craig Parshall
General Counsel, NRB
Founding Director, John Milton Project for Digital Free Speech
Published: October 17, 2019