October 11, 2019

Craig Parshall, General Counsel





Religious Rights Hidden but Not Forgotten in Supreme Court Arguments

WASHINGTON (NRB) – Religious liberty issues were hidden in plain sight this week during U.S. Supreme Court arguments involving a case where a Christian funeral home had terminated its male funeral director when he “transitioned” to a female identity. While the other lawyers wrestled mostly with the legal paradox of “transgender” identity, and whether it should fit within the “sex” discrimination text of the Civil Rights Act of 1964, U.S. Solicitor General Noel Francisco pointed to the religious freedom issues at stake – a position applauded by NRB.

“The job of legislation belongs to Congress, not the courts,” says Craig Parshall, NRB’s General Counsel. “Solicitor General Noel Francisco was right when he pointed out that for almost a decade Congress has been stymied over passage of the Employment Non-Discrimination Act (ENDA), and with good reason. The ENDA bill – that would treat sexual orientation and ‘gender identity’ as protected classes – merely gave lip service to religious employers and ministries, offering no substantive protection at all. Congress obviously got the message. Its refusal to pass ENDA should settle the issue, rather than ignite an end-run to the Supreme Court.”

During the near decade of congressional debate over ENDA, NRB General Counsel Craig Parshall testified before committees of the U.S. Senate and the House of Representatives, pointing out that the failure of the ENDA proposals to deal honestly with the religious rights of faith-based employers should end the debate.

Solicitor General Francisco, who argued this week on behalf of the U.S. Equal Employment Opportunity Commission (EEOC), told the Justices that Congress and state legislators – not the courts – are the ones tasked to “take into account” the religious liberty implications to established rights of religious conscience before considering new gender identity laws.

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