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6th Circuit upholds religious group’s firing of gay employee, but ACLU may have the last laugh | Hunter of Justice

6th Circuit upholds religious group’s firing of gay employee, but ACLU may have the last laugh

by on September 1, 2009  •  In Employment law, Religion

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or … her religious differences with KBHC. … Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof…"

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA – with its broad religious exemption – likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.

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2 Responses to 6th Circuit upholds religious group’s firing of gay employee, but ACLU may have the last laugh

  1. Skeeter Sanders September 5, 2009 at 3:54 PM

    If a religious-affiliated organization is accepting taxpayer funds, then it must comply with all relevant anti-discrimination laws in its employment of staff. There is no provision in Kentucky law that bars discrimination on the basis of sexual orientation, so the plaintiff is out of luck in getting her old job back.

    However, the use of taxpayer funds to promote a particular religious agenda does indeed violate the First Amendment’s strict ban on government sponsorship of religion. If it is established that the Kentucky Baptist Homes for Children used taxpayer money for the pursuit of its religious mission, then it must be stripped of that funding in accordance with the First Amendment.

  2. Susan September 9, 2009 at 4:05 AM

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