St. Joseph’s Parish, in St. Johns, Michigan, recently filed a lawsuit claiming that the state Supreme Court’s holding in Rouch World, LLC v Department of Civil Rights will violate the parish’s religious right to *checks notes* exclude whom it pleases from the kingdom of Heaven.
That’s a paraphrase, but it’s not an exaggeration.
As a matter of both faith and law, I think St. Joseph’s is on the wrong side here. I also think that St. Joseph’s strongest argument is also its most distastefully un-Christian.
Some Background
At issue is whether the word “sex” in the state’s Elliot Larsen Civil Rights Act (ELCRA) includes sexual orientation and gender identity. Or: Does it count as discrimination on the basis of “sex” to discriminate on the basis of sexual orientation or gender identity?
In Rouch, the plaintiffs were both businesses that decided they had religious Issues with serving lesbians and trans women, respectively. Rouch World, LLC didn’t want to let a lesbian couple book its venue for their wedding; Uprooted Electrolysis, LLC didn’t want to perform electrolysis services for a trans woman (an essential procedure prior to gender reassignment surgery and an important one for managing gender dysphoria generally).
The women involved filed complaints with the state Department of Civil Rights; Rouch and Uprooted filed a case with a lower court; the state Department of Civil Rights moved for summary disposition on the grounds that the word “sex” does in fact include sexual orientation and gender identity. Things got complicated.
Tl;dr the state Supreme Court was asked to settle the issue. Which it did – by announcing that yes, the Elliot-Larsen Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity, as both of those are included in the word “sex.”
Specifically, now-Chief Justice Elizabeth Clement (a Republican) wrote “Accordingly, the denial of ‘the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service’ on the basis of sexual orientation constitutes discrimination ‘because of … sex’ and, therefore, constitutes a violation of the ELCRA.” Bookmark this; we’ll come back to it.
St. Joseph’s Case
Enter St. Joseph parish. ELCRA doesn’t include exceptions for religious organizations or religious liberty. In other words, you don’t get to say “but my religion says no [insert protected class here].”
This, of course, concerns St. Joseph, which runs a Catholic school as well as a church. Hence the lawsuit, in which St. Joseph claims that the ELCRA’s protections violate the First and Fourteenth Amendments – exemplified here by St. Joseph’s desire to keep discriminating against queer people because…Jesus?
Here’s Why I Think St. Joseph Shouldn’t Have a Case
When I first read the Lansing State Journal article, I lingered over the ELCRA passage cited by Chief Justice Clement: “…a place of public accommodation or public service…”
As both a lawyer and a Christian, this is the hinge on which I think the reasoning here rests. Christianity, broadly, claims to take seriously Christ’s call in Matthew 28:19 to “go and make disciples of all nations.” It also claims to take seriously Paul’s statement in Galatians 3:28 that “there is no longer Jew or Greek; there is no longer slave or free; there is no longer male and female, for all of you are one in Christ Jesus.”
Christianity broadly, and Catholicism specifically, claim to take the Gospels and the Epistles very seriously. They’re the cornerstones of millennia of theology and practice.
I maintain that any religion that insists its commission is to “go and make disciples of all nations” is a public accommodation or public service by definition.
Christianity cannot take that call seriously and also run itself like a country club or a secret society. It’s “go and make disciples of all nations.” It’s not “go and make disciples of the nations that pay the membership fee and survive the hazing rituals.”
In fact, I’d go so far as to say that Christians do not have any right to discriminate as a matter of religion (not as a matter of law). Paul tells us that the very divisions prohibited by the ELCRA no longer exist under Christ. There is no longer male and female, for all of you are one in Christ Jesus.
Christianity also cannot take Paul’s words seriously and also continue to discriminate on the basis of sexual orientation or gender identity. There must be another way to understand the texts’ distaste for what gets translated as same-sex sexytimes – and it must be one that observes Jesus’s note on the greatest commandment, that “all the Law and the Prophets” hang on the command to “love God with all your heart and with all your soul and with all your mind” and “you shall love your neighbor as yourself.”
(I do believe this view exists, but that’s another post.)
Bottom Line: A Christian church asking a court to let it discriminate on the basis of sex as a matter of religious practice shouldn’t even be a thing.
…But I Suspect St. Joseph Might Win This Anyway
Despite that, I think St. Joseph has a strong religious argument for being allowed, as a matter of religious practice, to discriminate on the basis of sex, which is:
Christianity, and religion generally, isn’t just a matter of what’s written in the rulebook. It’s also a living, ongoing tradition of practice and patterns of behavior.
I noted above that Christ’s charge is to “go and make disciples of all nations,” not “go and make disciples of the nations that pay the membership fee and survive the hazing rituals.” Yet for many centuries, the Catholic Church has treated Christianity as if Christ gave us our homework in precisely those words. I’m thinking specifically of the atrocities recorded by Bartolomé de las Casas, but there are countless other examples.
One can argue, as I did, that the central texts of Christianity don’t support discrimination on the basis of sex. Yet it’s much harder for me to argue that the central longstanding practices of the Catholic Church don’t support discrimination – and resultant atrocities – on the basis of any number of traits included in the ELCRA. The faith, as it has been practiced, is all too often about causing precisely the harm the ELCRA seeks to prevent.
For decades now, courts have been skirting this question by declining to dig into any particular religious tenets, instead punting to the idea that any “sincerely held religious belief” is worthy of protection. The state leaves questions like “Should I sincerely believe that discrimination/exploitation/genocide-scale hazing/etc. is what I’m called to do?” to the individual.
And if I’m being honest, it probably should. But the state should also exercise its powers to keep us, as a society, from inflicting our worst impulses on one another – whether or not those impulses stem from a “sincerely held religious belief.” For that reason, I am inclined to say that the ELCRA’s lack of a religious exemption may be doing the holy work of saving St. Joseph parish from itself.
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Dani Alexis 