The high court’s new term starts with cases that could hit religious believers hard. A trio of them concerns the controversial subject of LGBTQ rights. And one of those three involves a funeral home and a fired transgender worker. It could have broader implications for existing civil rights law and invasion of privacy.
A man named Anthony Stephens working at a Christian funeral home in Michigan announced to his bosses that he wanted to become Aimee Stephens and start wearing dresses instead of business suits to work. He was terminated and he sued.
Lawyer Carrie Severino of the Judicial Crisis Network explained to CBN News, “The owner is saying, ‘I believe it’s almost a ministry really in my business, reaching out to and supporting families who are grieving. And it would be a distraction from that to have someone who is a biological male wearing a dress.'”
Tom Rost heads up Harris Funeral Homes, which owns the facility where Stephens worked. He described one of his first reactions to Stephens’ announcement was, “The families that we serve: how would they possibly react to this?”
John Bursch of the Alliance Defending Freedom (ADF) will argue the case for Harris Funeral Homes before the US Supreme Court.
He said for those who make this just about LGBTQ rights, “People may think that this case is simply about whether a business can fire somebody for being transgender.”
Huge Implications for Society
But he stated in an ADF interview, a win for Stephens and a defeat for Harris Funeral Homes could have much broader implications that could affect American society.
Rather than “sex” being defined as biologically male or female, people and institutions would be forced to accept a person’s subjective definition of what he or she is sexually. For example, a biological male redefining himself as female.
Bursch pointed to affects such as schools having to accept biological males on female sports teams, often to the detriment of the females who before had exclusively made up those teams.
Bursch added, “It can mean the violation of intimate privacy spaces at high schools and colleges, including showers, rest rooms and locker rooms.”
“And it also affects the privacy spaces at shelters, women’s shelters, where recently in Alaska a man who said he was a woman demanded to sleep three feet away from women who had been raped and sexually abused,” he continued.
This week the president of Franciscan University of Steubenville warned that if the high court redefines the word “sex” in non-discrimination law, it will violate religious freedom and put women at risk.
Father Dave Pivonka stated, “I strongly encourage the court to carefully consider the severe repercussions their decision in this case will have in terms of religious liberty and for women throughout the country. If ‘sex’ is conflated with ‘gender identity,’ universities like Franciscan may no longer be able to maintain sex-specific sleeping facilities, bathrooms and locker rooms.”
Pivonka concluded, “Our medical facilities could be compelled to provide religiously objectionable medical procedures, and biological men would be in competition with women for athletic roster spots and scholarships.”
The Heritage Foundation’s Ryan Anderson wrote about the push for special rights for transgenders in his book When Harry Became Sally.
He said of that push, “This is largely driven from the top level of cultural and political activists, Hollywood activists, media activists, university activists and straightforward political activists. That’s where a lot of this is coming from. It’s not happening at the grassroots level.”
As for those who, because of their religious beliefs, have a problem with the legal claims of some of those in the transgender community and their allies, they could face daunting battles in court. These legal battles with transgenders could be akin to those faced by people such as Colorado baker Jack Phillips after he refused to make a special cake to celebrate a same-sex wedding because of his religious beliefs.
It all depends on whether the US Supreme Court decides transgender identity is covered under the legal definition of sex, which was laid out in civil rights law back in 1964.
“In 1964, no one thought it did,” said Severino. “But have things changed? Does it now cover it? And if it does, what recourse is there for someone who has a religious objection?”
Chance to Restrict Abortion
As for abortion, the Court has agreed to take up a Louisiana case that might have a big impact. It would require abortion doctors to have admitting privileges at local hospitals.
Pro-choice types say that’s too restrictive and would leave Louisiana with just one doctor able to perform abortions. Pro-life advocates like Allan Parker of the Justice Foundation hope now that the Court is assumed to hold a five-vote conservative majority, it could make a broad ruling that might strike at the heart of legalized abortion.
Parker said of the Louisiana law, “The Court could use that to overturn Roe v Wade.” That’s the 1973 ruling that legalized abortion nationwide.
A number of pro-lifers came to the high court several days before it began this new term to present a petition signed by 250,000 people asking for the justices to reverse Roe. They believe now is the best opportunity in years for that to happen.
“There is new evidence, new scientific evidence, new facts, that this Court needs to consider and that would justify overturning the precedent of Roe v Wade,” Thomas Glessner of the National Institute of Family and Life Advocates told CBN News.
Red states have recently passed a flurry of pro-life laws, with almost all of them being immediately challenged in courts across the land.
Parker said of some of those, “There are about 10 or 15 cases that could be the one that overturns Roe v Wade that are moving towards the Supreme Court.”
This will be the first abortion case heard by the court since Justice Anthony Kennedy sided in a 2016 ruling with the four justices who can usually be counted on to cast pro-choice votes. Now with Kennedy’s retirement and President Trump’s choices of Neil Gorsuch and Brett Kavanaugh being seated, the majority may now be more open to rulings that restrict abortion.
States and Tax Dollars Involvement with Religious Institutions
Another case that will be heard soon is Espinoza v Montana Department of Revenue. The high court could use it to decide if states can refuse to let any kind of tax money be involved with religion.
People in Montana were donating money to scholarships to send children to private schools and then they’d get a tax break from the state for that. But Montana found out that some of the scholarships were sending kids to religious schools and declared that’s not legal.
Lawyer Severino suggested Montana’s bureaucrats may have gone too far. They based their decision on the state’s so-called Blaine amendment. Blaine amendments were enacted in states across the country during an era where there was much anti-Catholic hostility and they restricted states’ involvement with religion.
Severino said of these Blaine amendments, “If you took them to their most extreme interpretation, you could say, ‘Well, the state can’t fund 911 service to a church, for example, because that involves state funds that are going to help a religious institution.'”
Severino spoke to CBN News after she took part in a panel discussion with other lawyers and law professors about this new term.
On that panel, Amy Howe of SCOTUSblog.com said the high court may rule against Montana for the same reason it ruled last term against those wanting to tear down a memorial cross honoring World War 1 casualties in Bladensburg, Maryland.
She said the justices ruled, “Taking it down wouldn’t be neutral toward religion, it would actually be aggressively hostile. It’s a different case, but I think it says something about where the mindset of many of the justices is likely to be.”
Important Cases Not Yet on the Docket — But Could Be
There are some cases with religious implications that the Court has not taken up, but those involved hope it will during this new term.
One is the case Washington state is using to punish Spokane florist Barronelle Stutzman. Several years ago, she told a gay friend she couldn’t do the floral arrangements for his same-sex wedding because that goes against her religious beliefs.
Her state’s supreme court has ruled against her twice and that defeat could be final if the US Supreme Court doesn’t intervene on her side.
As she said in an ADF interview, “If I lose in court, I will likely lose everything. The penalties and attorneys’ fees could be well over a millions dollars. My business would be gone. My husband and I would lose our home and our retirement.”
One reason people who are big advocates for religious liberty hope the Court will take up more of their kind of cases this term is because new justices Gorsuch and Kavanaugh may help tilt the Court in a more conservative direction. These religious liberty advocates feel that means a more favorable hearing for people of faith.