Texas Ruling Opens Route for Religious Carveouts to LGBT Rights

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11/04/2021

A Texas federal judge recently laid a path allowing for-profit businesses to use religion as a shield against LGBT anti-discrimination claims, but attorneys and academics question whether it’ll survive appellate review or make its way to the U.S. Supreme Court. District Judge Reed O’Connor’s opinion—weighing in on several questions left unanswered by the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County, Ga.—found that the Religious Freedom Restoration Act and the First Amendment can protect Christian-run health-care businesses from LGBT bias liability. He also said churches and other nonprofits can similarly escape liability under Title VII of the 1964 Civil Rights Act’s religious organization exemption. The Oct. 31 decision will likely be appealed to the U.S. Court of Appeals for the Fifth Circuit, observers said. But they disagreed on which parts of the 70-page ruling the appellate court, which is dominated by Republican-appointed judges, would keep or throw out. “The appeal could go off on any one of several side issues,” said University of Virginia School of Law professor Douglas Laycock, a religious liberty legal scholar. “But if they reach the merits, I think the Fifth Circuit is likely to affirm.” Others said the appeals court could take a different approach in the case, which was brought by health-care provider Braidwood Management Inc. and Bear Creek Bible Church, to challenge U.S. Equal Employment Opportunity Commission enforcement of Title VII following Bostock. The two entities sought carveouts from the expansion of civil rights protections for LGBT workers.

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