Jacksonville store becomes latest to pursue exemption from anti-discrimination law

The Queen of Angels Catholic Store faced a dilemma. It wanted to post a message on its website and in the store saying that its owner and employees would only use the pronouns associated with a customer’s sex at birth when dealing with the public. It would refuse to use any other pronouns, which the store said was consistent with the Roman Catholic faith. The store has not explained how its employees and owner would discern any customer’s sex at birth. But the store, which is a for-profit business located in Jacksonville, Florida, knew that this practice would violate a city ordinance that bars discrimination in employment, housing, and public accommodations and includes sexual orientation and gender identity as protected classes.

The store has not posted its message and no customer or employee has filed a complaint against the store for any violation with the Jacksonville Human Rights Commission, which enforces the ordinance, but it sued the city in federal court in February asserting that its First Amendment rights were being trampled. The store mostly only sells products that it deems to be aligned with the Catholic faith, it is closed on Sundays, and it holds Catholic prayers twice a day when open. The store is not affiliated with any religious institution.

Now attorneys for Jacksonville appear to be poised to allow the store to not only post its message, but they are ready to say that the store is exempt entirely from the ordinance because of its religious leanings. This would mean that Queen of Angels could simply put up a sign saying it will not serve transgender, non-binary, or genderqueer people.

In a statement, the Alliance Defending Freedom (ADF), the right-wing legal group that represented the store, said the owner “gladly serves everyone, but she can’t speak messages that conflict with her religious beliefs. Jacksonville’s law threatened her with costly investigations, fines, and damages if she used her store’s website to communicate Catholic beliefs about gender identity and human sexuality. Thankfully, the city has now agreed that Queen of Angels is a religious organization free to operate according to its faith.”

The ADF posted a draft consent decree on the federal court’s website on Sept. 7. In an email, an attorney representing Jacksonville wrote that the lawsuit was not over, but otherwise declined to comment. During a May 15 hearing, Craig Feiser, an attorney in Jacksonville’s general counsel’s office, told Timothy Corrigan, the judge who heard the case, that the store had not initially provided the city with sufficient information to justify a religious exemption.

“If it was against a store like Queen of Angels, presumably Queen of Angels would say, ‘Wait. We’re a religious corporation. Here’s why. Here’s all of our proof that we are. Here’s how we meet the definition. You can’t apply the [human rights ordinance] to us in this circumstance.’ And then the city would — you know, no probable cause; dismissed,” Feiser said.

Corrigan clearly believed that the store was exempt, saying during the May 15 hearing, “But if this isn’t a religious corporation, what in the world would be? It obviously — religious corporation obviously means something.” Feiser responded, “Sure. Right.”

The Jacksonville ordinance describes religious organizations as “churches, synagogues, mosques, and schools of religious instruction and non-profit institutions or organizations affiliated therewith, as well as any religious corporation, association or society.” The ordinance uses the definition of religious corporations, associations, and societies under federal law. Generally, for-profit businesses are not recognized as religious entities, according to Henry Frampton, the ADF attorney who represented Queen of Angels.

“[S]ome courts have said ‘for-profit’ is dispositive,” Frampton said during the May 15 hearing. “Now, in the wake of Hobby Lobby, with the Supreme Court saying that for-profits can engage in religious exercise, that seems wrong to us, but that’s the case law that’s on the books in some places.”

In 2014, the US Supreme Court ruled that as a closely held private company with religious leadership, Hobby Lobby was entitled to not provide contraception coverage to its employees. This year, the Fifth Circuit Court of Appeals approved a religious exemption for a small for-profit Texas company.

A settlement means that the result applies only to Queen of Angels and prevents the store from appealing the consent decree to the 11^th Circuit Court of Appeals, which hears appeals from federal courts in Florida, Georgia, and Alabama. The 11^th Circuit has been hostile to the LGBTQ community in recent decisions.

But this case also shows the broadening efforts of the ADF and other right-wing legal groups to gut federal, state, and local anti-discrimination policies and laws that include sexual orientation and gender identity as protected classes.

The ADF is currently representing public school employees in two states who cited their religious beliefs in refusing to support social transitioning policies for students; two Christian counselors who are challenging laws in Colorado and Washington that bar exposing minors to conversion therapy, which does not work and can harm people; a Christian health center in Michigan and a social services agency in Washington state that want to be allowed to hire only people who share their Christian beliefs, policies that would allow them to not hire LGBTQ people; and a Catholic school in Michigan that also wants to be able to refuse to hire anyone who does not share the school’s religious beliefs. The ADF has also supported bans on healthcare for transgender children and teenagers.

What is common to many of these cases is that, like Queen of Angels, the plaintiffs have not suffered any harm. The federal courts typically do not hear cases in which there is no damage or controversy, but they continue to carve out an exception to hear lawsuits that could ultimately disadvantage the LGBTQ community. Most recently, Lorie Smith, a website technician, sued the state of Colorado asserting that she wanted to post a message on her website saying she would not serve same-sex couples who are marrying because it would violate her religious beliefs. The US Supreme Court held for Smith in a decision in June. No complaints about Smith were ever filed with Colorado.

“Equality Florida is glad to see the case resolved, but it’s one that never should have been brought in the first place,” said Jon Harris Maurer, the public policy director at Florida’s largest LGBTQ lobbying group. “Many Floridians support their LGBTQ friends and families not in spite of their religion, but because of it.”

These cases also disprove the complaint by religious conservatives that religious liberty is under attack precisely because the plaintiffs have not experienced any harm. The more likely explanation for these lawsuits is the desire to apply social penalties to LGBTQ people. The ADF responded to a query about the Florida case with a link to its statement on the result, but did not respond to questions about any limits on how LGBTQ people can be treated in employment, housing, public accommodations, and other areas.

The ADF has a lengthy anti-LGBTQ history. In Lawrence v. Texas, the 2003 US Supreme Court case that struck down sodomy laws in the 13 states that still had those laws on the books, the organization filed a friend of the court brief for the Texas Physicians Resource Council, Christian Medical and Dental Associations, and the Catholic Medical Association that portrayed gay men and lesbians as disease spreading vectors and argued that sodomy laws controlled that behavior. The organization toned down its rhetoric in a friend of the court brief in the 2015 US Supreme Court case that required states to issue marriage licenses to same-sex couples. The ADF opposed allowing same-sex couples to marry.

Founded in 1994, Alan Sears, who was ADF’s first president, was among the five men who launched ADF. In 2003, Sears co-authored “The Homosexual Agenda: The Principal Threat to Religious Freedom Today” with Craig Osten. The authors repeatedly used the anti-gay slur of calling gay men pedophiles, but what is most salient is that none of the predictions the authors said would result from the advancing LGBTQ rights movement have come true.

“Given the recent obsession among right-wing political candidates and agitators to try to erase trans and non-binary people and shut down all conversation about gender expansiveness and free gender expression, this new…demand for a license to gratuitously, obnoxiously harass others on top of claiming a right to refuse service is one more step down an abusive and dangerous path,” Jennifer Pizer, the chief legal officer at Lambda Legal, an LGBTQ rights group that has litigated cases in state and federal courts and before the US Supreme Court, wrote in an email.