Affirmative Action

Coming soon to a Christian school near you?

I wrote recently of the Obama administration’s Supreme Court challenge to the “ministerial exception.” If successful, the government will allow Christian schoolteachers and church employees who are considered “ministers” to sue their churches for violating anti-discrimination laws. There is a deeper, more disturbing aspect to the EEOC’s advocacy in this case. As this administration enforces those laws, it could require a Christian school to employ a transgender, HIV-positive homosexual as an elementary teacher. The government may allow impose Affirmative Action upon churches, as well.

The “ministerial exception” has been enforced by lower courts for decades, but the Supreme Court has never defined its parameters. Courts have ruled, essentially, that churches have the right to define their own criteria for who can serve as a minister. The Supreme Court began hearing arguments this week in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which would allow Cheryl Perich, a Christian schoolteacher and “commissioned-minister,”  to sue her Lutheran school for discrimination against the disabled. (She has been diagnosed with narcolepsy.)

The act Perich invoked, the Americans with Disabilities Act (ADA), defines those who are HIV-positive as “disabled.” The website of the Justice Department’s Civil Rights Division specifically states:

Q: Are people with HIV or AIDS protected by the ADA?

A: Yes. An individual is considered to have a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons with HIV disease, both symptomatic and asymptomatic, have physical impairments that substantially limit one or more major life activities and are, therefore, protected by the law.

Thus, if the Obama administration succeeds, no Christian school could fire a teacher infected with the AIDS virus without the threat of a federal lawsuit.

The DOJ’s website also notes the “Equal Employment Opportunity Commission offers technical assistance on the ADA provisions applying to employment.”

The EEOC’s website offers a hypothetical violation of the ADA: if an employee who is not HIV-positive is fired for consorting with those who have AIDS, in their example as a volunteer at a shelter or community center, that too could trigger litigation under the ADA. This would be impermissible, the EEOC states, “even if the employee is only minimally acquainted with [people] who have HIV/AIDS.” Since virtually every homosexual professes to know someone who is HIV-positive, any LGBT employee fired for any reason could sue in accordance with this provision, alleging an act of disability discrimination.

The administration would also like to subject churches and religious institutions to Title VII of the 1964 Civil Rights Act, which prohibits discrimination against employees on the basis of an “individual’s race, color, religion, sex, or national origin.” Both it and the ADA allow religious institutions to prefer “individuals of a particular religion” in employment. That is, the Southern Baptist Convention may require its employees to be Southern Baptists and so on. Beyond that, there is no quarter offered to religious institutions.

This opens the possibility of Affirmative Action in church hiring. (Some churches already employ such practices.) The Harvard Law Review stated in a 2008 article on the ministerial exception, “under Title VII’s plain text, religious denominations theoretically could face sex discrimination liability for refusing to ordain women.” Douglas Laycock, the Lutheran school’s key lawyer in the Hosana case, notes in his reply brief that some of those on the other side “do not deny that they would open the door to class actions alleging disparate impact and statistical underrepresentation.” Perhaps it is no coincidence the NAACP Legal Defense and Education Fund, one of the nation’s leading advocates of reverse discrimination, has filed an amicus curiae brief in the Hosana case.

Most controversially, the Obama administration has already begun enforcing civil rights laws that do not cover homosexuals as though they did. The White House website makes clear that Obama supports the Employment Non-Discrimination Act, and he reiterated his position in a speech to the 15th annual dinner of the Human Rights Campaign on October 1. This president has a peculiar penchant for enforcing unpassed bills by executive fiat. Indeed, he literally redefined the family the federal regulation, and his implementation of the transgendered agenda by fiat has been nothing short of historic.

The Obama administration has openly stated it will use any pretext to prosecute discrimination against homosexuals. The homosexual Keen News Service reported that the Department of Housing and Urban Development (HUD) announced last July that while federal law “does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover them in other ways. For example, gender-identity discrimination may be seen as sex discrimination.”

The HUD website explains although anti-discrimination laws do not currently cover “lesbian, gay, bisexual, or transgender (LGBT)” people, there’s good news — you may already be a victim! The website states:

[A]  person’s experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act.

For Example:

• A gay man is evicted because his landlord believes he will infect other tenants with HIV/AIDS. That situation may constitute illegal disability discrimination under the Fair Housing Act because the man is perceived to have a disability, HIV/AIDS.
• A property manager refuses to rent an apartment to a prospective tenant who is transgender. If the housing denial is because of the prospective tenant’s non-conformity with gender stereotypes, it may constitute illegal discrimination on the basis of sex under the Fair Housing Act.

If you believe you have experienced (or are about to experience) housing discrimination, you should contact HUD’s Office of Fair Housing and Equal Opportunity for help at (800) 669-9777. (Emphases added.)

That is, the Obama administration is willing to sue those who “discriminate” against a male cross-dresser on the grounds that the accused hates women. Will the Obama administration apply these same criteria to Christian school teachers? Will an HIV-positive male teacher who wears a dress be legally guaranteed a job teaching Christian doctrine as long as “she” professes to be a member of the school’s sponsoring denomination?

The threat of litigation is more than an academic concern on both fronts. Last October, the EEOC sued the entire Maverik [sic.] Country Store convenience store chain, because one of its Wyoming locations fired Randy Ramos, an HIV-positive baker. (EEOC Phoenix Regional Attorney Mary Jo O’Neill, who prosecuted the case, said, “One would expect that employers in this day and age would be sensitive to that and agree to work with an HIV-positive employee, not fire him.”)

A 39-year-old HIV-positive man, “Richard Roe,” has hauled the Atlanta Police Department before the 11th Circuit Court of Appeals, insisting the department denied him a job because he has AIDS.  Scott Schoettes of the homosexual lawfare society Lambda Legal admitted the group’s motivation. “We want to change the city of Atlanta’s way of thinking,” he said, and “bring them into the current millennium. We want to make it clear the city cannot discriminate and act on it.” Besides, Gregory Nevins of Lambda Legal has averred anti-AIDS discrimination must end, because “HIV is no longer inevitably resulting in death.”

They would undoubtedly like to do the same for the Christian religion and its consistent, 2,000 year teaching against homosexuality.

Nor is this an isolated event. The ACLU sued the Alabama Department of Corrections in March for isolating AIDS-infected prisoners from the general prison population. One might think, with the high incidence of prison rape, this was a public health service. Not the Left. Margaret Winter, Associate Director of the ACLU National Prison Project, said the Communist-founded organization filed suit to secure the criminal element’s “right to be free from disability-based discrimination.” The suit specifically invoked the Americans with Disabilities Act.

Such lawsuits represent a boon for trial lawyers and a windfall for those who file suit. Dr. Kathryn Moss of the Cecil B. Sheps Center for Health Services Research at the University of North Carolina has found HIV-positive litigants are 28 percent more likely to prevail in ADA administrative complaints, and their median cash award is one-third higher than those “with other disabilities.”

Lambda Legal has pending litigation against the state of Georgia for firing Vandy Beth Glenn, a transgendered state employee who decided to come to work as a woman.

The issue of “discrimination” against homosexuals has crept into the Hosana case’s documents, as well. The Anti-Defamation League (ADL) specifically noted in its amicus curiae brief, “Female or gay high school teachers, secretaries, university professors, organists, and choir directors, among others, have had their discrimination lawsuits dismissed because of the churches’ religious freedom to hire as they wish without court interference.” The ADL considers this a very bad thing.

No actual litigation need follow. The average church has 75 regular participants on a Sunday morning, so the threat of a lawsuit alone is often sufficient to cause a lukewarm Christian to back down.

Some may argue the Americans with Disabilities Act states, “a religious organization may require that all applicants and employees conform to the religious tenets of such organization.” But Title VII offers no such protection. Moreover, even the ADA’s language could be interpreted to mean an employee simply has to believe the dogmas and doctrines of the denomination, not that (s)he must live up to or exemplify them.

The government’s lack of interest in Christan teaching could hardly be more palatable. Assistant to the U.S. Solicitor General Leondra R. Kruger has said during oral arguments before the court Wednesday, “A particular religious doctrine is simply irrelevant.”

All of this is not merely likely but was clearly foreseeable. In a 2001 interview on public radio, Obama called for an “activist” executive branch to enforce the Left’s cultural agenda, observing that “without an activist Attorney General’s office and Justice Department that is able to come in and provide just the sheer resources that are required, many of these changes just don’t take place.” Messrs. Obama and Holder have proven they are more than willing to provide the Left ample federal resources.

In fact, no less a Christian figure than Martin Luther foresaw this day coming.  He once preached, “I greatly fear the high schools are nothing but great gates of Hell unless they diligently study the Holy Scriptures and teach them to the young people.”