Fifth Circuit Deals Massive Victory For Business Owner To Fire LGBTQ Employees

P. Gardner Goldsmith | June 27, 2023
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In a ruling that is more significant than the immediate debate over wokeness, LGBTQ, “transsexuality,” pronouns, and other contemporary Cultural Marxist factors might reflect, the Fifth Circuit Federal Court of Appeals June 20 barred the federal “Equal Employment Opportunity Commission” (EEOC) from suing a Christian businessman over his rightful claim to freedom of association - i.e. his right to employ or fire whom he wants.

Ironically, for the bulk of its decision in this case, “Braidwood Management, Inc. v. EEOC,” the court cited a 1993 statute pushed by leftist Senator (then-Congressman) Chuck Schumer (D-NY) – though a substantive analysis of the Schumer statute tells us that what he got passed was not designed to help business owners and that it was, instead, written to circumvent the First Amendment.


So, the Fifth Circuit flipped the narrative, and that’s good – but it doesn’t help us in the long-term.

Legal Insurrection’s Terrance Kible explains the fundamentals of the ruling:

“A federal appeals court has barred the Equal Employment Opportunity Commission (EEOC) from suing a Christian business owner who vowed to fire ‘individuals who engage in behavior he considers sexually immoral or gender non-conforming.’ The business owner, Steven Hotze, operates ‘his [subsidiary] corporations as ‘Christian’ businesses,’ despite none of the corporations having an expressly religious mandate.”

Some observers might have thought that Hotze didn’t have a chance of winning in the Fifth Circuit, because a 2020 Supreme Court of the United States (SCOTUS) ruling ruled that sexual preference or “gender identification” were covered by a portion of the 1964 Civil Rights Act.

“Hotze’s for-profit business, Braidwood Management, sought an exemption from Title VII of the Civil Rights Act of 1964, which bars discrimination in employment ‘on the basis of sex.’ As interpreted by the Supreme Court in 2020, employment discrimination ‘on the basis of sex’ includes ‘fir[ing] an individual merely for being gay or transgender.’”

But, this is where Schumer’s 1993-passed statute comes into play, in its own perverse way…

“The business owner persuaded the United States Court of Appeals for the Fifth Circuit that the Religious Freedom Restoration Act (RFRA) compelled the EEOC to grant him an exemption from Title VII.”

What’s curious about this is the fact that RFRA contains language that appears to be an attempt to circumvent what Mr. Hotze already should have been cite as bedrock protection: the First Amendment.

He has a right to freely associate – for business or any other peaceful reason – with anyone he wishes. Meaning, as a property owner interested in engaging with potential employees in market transaction or fee-for-service, he, like we consumers of other things, has a right to offer or decline to offer his payment to anyone he likes. If he does not have the right to hire or fire based on his preference, we consumers don’t have the right to buy or not buy products or services, and we, too, should answer to this magical “EEOC” godhead.

Related: ADF: Masterpiece Cakeshop is Not the Only Precedent to Protect Religious Opposition to Gay Marriage | MRCTV

Indeed, reading of Schumer’s RFRA reveals language that stands in absolute contradistinction to both the wording and the spirit of the First Amendment:

“(a) IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.”

The First Amendment doesn’t allow the federal government to create caveats to it through the use of terms such as “substantial burden” or with outs like “compelling government interest.” The amendment is clear, and it is an absolute prohibition against Congress from taking certain actions against speech, religion, and freedom of association, reading:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And Schumer’s RFRA clearly IS a law that abridges the right of people to peaceably assemble and the right to adhere to one’s religious beliefs.

Given Schumer’s tax-fed, decades-long promotion of collectivism and his ceaseless attempt to undermine the constitutional barriers against federal power, it’s easy to see how his slick 1993 statute was designed to actually open the doors to political control and manipulation of speech, religion, and association. But the lawyers for Mr. Hotze and the conservative Fifth Circuit used Schumer’s language to turn the tables. Writes Kible:

“The court, quoting the lower court’s framing of the issue, found enforcing Title VII against Braidwood (Hotze’s business) would substantially burden Braidwood’s religious practice…”

And, he adds:

“The court then considered whether the burden imposed by Title VII was ‘in furtherance of a compelling governmental interest.’ The EEOC claimed a compelling interest in eliminating discrimination in the workplace, which the court rejected…”

All of which looks good – at first blush. It’s a victory for Hotze and his freedom of association and free practice of religion. But what if the court had ruled the other way?

The RFRA allows the government (including the courts) to arbitrarily determine whether something is a “compelling governmental interest” and a “substantial burden.” That’s like letting a thief determine what is and is not your property.

The key here is that the circuit court decision does not engage in the important constitutional defense of tearing apart the Orwellian “Religious Freedom Restoration Act” for the manner in which the act undermines the strict wording of the First Amendment.

Indeed, Hotze’s legal team didn’t need to argue on the level of the RFRA at all. The appropriate argument focuses strictly on the emphatic, easily read, easily comprehended wording of the First Amendment, and to argue or rule on the RFRA is to accept Schumer’s workaround. In this case, the ruling happened to side with the plaintiff, but the focus on RFRA discards the very “rule book” that allowed for the creation of that Fifth Circuit Court and Chuck Schumer’s Senate and former Congressional seats in the first place.

And it goes deeper than the RFRA. At its most fundamental level, the very concept of the “Equal Employment Opportunity Commission” is a foul insult to the freedom of association enshrined in Amendment One. This is inarguable and disarmingly obvious.

Of course, some Americans who identify with the LGBTQ agenda or portions of it may be sentimentally predisposed to find this ruling to be distasteful. But their personal offense does not give them the right to dictate to others how they will engage or not engage in business and association. For example, to say that someone MUST interact with another because the latter is deemed a “minority” leaves the door open to government compelling a population of 99 percent non-racists to have to hire or buy from the 1 percent in that set who might be racist.

As economist Walter Williams often noted, free markets are the only ethical and moral way to let people show their true attitudes and reap what they sow. To reject this principle of freedom is to invite perpetual government manipulation, even to the level of possibly forcing people to act contrary to their religious beliefs.

The Fifth Circuit ruled in favor of the plaintiff, but for the wrong reason. As we have seen with cases such as the Masterpiece Cakeshop, until Americans turn away from using the aggressive power of the state to dictate to others how they should peacefully interact, the very concept of freedom – be it of religion, speech, or association – is at risk.

Related: Videographers Fight State Over Right to Decline Service to Gay Couples | MRCTV