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These 3 anti-LGBTQ lawsuits outline new conservative strategy in Texas

Conservatives in Texas have filed three lawsuits seeking to overturn LGBTQ protections in the name of “religious freedom.” As the Texas state legislature gears up for its 2019 session, the litigation suggests a bold and renewed effort to undermine civil rights for LGBTQ people, seemingly at every turn.

The three suits in question were filed last week — all within a few days of each other — by three of Texas’ most vocal anti-LGBTQ groups. Two of them target the city of Austin’s LGBTQ nondiscrimination protections — one in federal court and the other in state court. The third targets the U.S. Equal Employment Opportunity Commission (EEOC) and Attorney General Jeff Sessions, arguing it’s unconstitutional to interpret Title VII’s employment protections to include sexual orientation and gender identity.

Chuck Smith, CEO of Equality Texas, told ThinkProgress that they had no advance notice or indication that their opponents planned to take this litigation strategy. Smith pointed out that that these cases aren’t the sort in which individuals claim the laws that protect the LGBTQ community are treating them unfairly, as the plaintiff in the Masterpiece Cakeshop case contended. Rather, he noted, the cases are being put forth by “culture war warriors” who “for more than a decade [have] been trying to establish barriers to LGBTQ equality.”

Their goal, Smith contends, is to “blow a huge hole in the civil rights of this country” by employing a strategy “to attack on all fronts.”

Smith suspects that the groups hope that these suits advance to the U.S. Court of Appeals for the Fifth Circuit, or even the U.S. Supreme Court, both of which now have conservative majorities poised to rule against LGBTQ people. The suits will also likely be portrayed as justification for a new raft of anti-LGBTQ bills expected to be introduced in the Texas state legislature next year. “It’s a multipronged approach to play one off the other,” he explained.

The lawsuits

As ThinkProgress previously reported, one of the lawsuits was filed by a group called the U.S. Pastor Council, a group that led the effort to overturn the Houston Equal Rights Ordinance in 2015 and which campaigned for an anti-transgender bathroom bill last year. Their federal lawsuit argues that Austin’s LGBTQ nondiscrimination protections infringe on the “religious freedom” of their churches, who are not given an exemption to discriminate against LGBTQ persons, as well as women, in the hiring of pastors. Their suit contends that the entire law should be enjoined until such an exemption is made for churches.

Meanwhile, Texas Values, a statewide anti-LGBTQ political organization, also filed a suit challenging Austin’s ordinance, but in state court. Their argument is far more broad than the U.S. Pastor Council’s, contending that anybody who has a religious objection should be allowed to:

  • refuse to hire “practicing homosexuals [sic] or transgendered [sic] people,”
  • refuse to rent property to anyone who engages “in non-marital sex of any sort, including homosexual behavior,”
  • refuse to “participate in or lend support to homosexual marriage or commitment ceremonies,”
  • refuse spousal benefits to same-sex partners of employees, and
  • refuse to allow transgender people to use restrooms matching their gender identity

In other words, they believe the law against discrimination shouldn’t apply to the people who are actually inclined to practice such discrimination.

The U.S. Pastor Council is also a partner to the third lawsuit, joining the Hotze Health & Wellness Center. The clinic’s founder, Steve Hotze, heads up a group called the Conservative Republicans of Texas, which the Southern Poverty Law Center has identified as an anti-LGBTQ hate group. As an example, Hotze launched a campaign this summer against the Houston library’s Drag Queen Storytime program this summer, arguing that “Exposing children to this bizarre sexual behavior is a form of pedophilia.”

In their federal lawsuit, the two groups contend that the EEOC should be forbidden from interpreting Title VII to protect LGBTQ from employment discrimination. “The EEOC refuses to acknowledge that [the Religious Freedom Restoration Act] and the First Amendment limit its ability to enforce Title VII against employers who object to homosexual and transgender behavior on religious grounds,” the suit claims.

They make no attempt to sugarcoat their antipathy for LGBTQ people. For example, after outlining biblical justifications for condemning homosexuality, the suit explains, “Because of these clear and explicit Biblical passages, Dr. Hotze believes that homosexual behavior is a gross sin, and as a Christian he must not lend approval to or become complicit in this behavior.”

Not only do they seek explicit permission to discriminate on religious grounds, they also seek recognition for national classes of churches and businesses who oppose “homosexual or transgender behavior,” that they might join the suit.

The same day he filed this suit, Hotze also filed a separate suit that is the latest challenge to the Affordable Care Act’s contraception mandate.

The 2019 legislative session

While no bills have been introduced for next year’s legislative session, Smith anticipates that there will be no shortage of attempts to undermine LGBTQ equality — even if Gov. Greg Abbott (R) has said an anti-trans bathroom bill is not on his agenda. And while many of the measures that anti-LGBTQ lawmakers are likely to propose will surely be recycled from previous legislative sessions, these new lawsuits point to other strategies lawmakers might deploy.

For example, the lawsuits challenging Austin’s protections suggest lawmakers may try to follow Tennessee, Arkansas, and North Carolina in passing a “preemption” law. These laws dictate that no municipality can extend protections beyond what are provided on the state level, effectively banning LGBTQ protections.

Smith also expects to see bills related to wedding-related services, delivery of health care and counseling, conversion therapy, and licenses to discriminate for nonprofit agencies. And even if there’s not a free-standing bathroom bill like there was in 2017, provisions might be added to school finance or safety bills to prohibit bathroom access for transgender students. “Kids make good political pawns in our opponents’ efforts,” he said.

He hopes that people notice that these judicial and legislative efforts don’t just target LGBTQ people. “In Texas Values’ lawsuit, they’re seeking to allow landlords to refuse to rent to unmarried couples who have sex,” he pointed out. “Any unmarried couples. LGBTQ people are the primary target, but these lawsuits are taking a narrow set of extremist religious beliefs and trying to elevate them to be treated as law.”

LGBTQ activists are already energizing around the litigation. Equality Texas, for example, has taken on a voter mobilization campaign like it never has before. The ACLU of Texas is also gearing up to resist these lawsuits.

In a statement to ThinkProgress, ACLU of Texas staff attorney Kali Cohn noted that the litigation “lays bare the true agenda of opponents of LGBTQ equality: licensing widespread discrimination against LGBTQ people in the name of religious liberty.”

“They claim the right to fire people, or refuse to rent them housing, simply because they are LGBTQ. That’s not what religious freedom means.”


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