The General Conference Office of General Counsel (OGC), which provides legal counsel to both the General Conference and the North American Division, finds itself involved in a myriad of subjects, some of which quietly protect core interests of the church, while others try to foresee and forestall potential conflicts. Two current cases illustrate these two approaches. One will receive less notice than it deserves while the other will inevitably produce more heat than light.
The first case, Tabura et al, v. Kellogg USA , involves one of the oldest legal issues facing Seventh-day Adventists: loss of employment because of Sabbath observance.
Richard Tabura and Guadalupe Diaz worked for Kellogg at a plant in Clearfield, Utah. Both were production line workers, and both had no conflict between their employment and Sabbath observance until Kellogg went to a three shift, seven-day schedule. They were allowed to use vacation time and sick days to cover their Saturday absences, but there were not enough of those days to cover all their absences. When attempts to find other employees to trade shifts with them failed, they continued to be absent on Saturdays and were ultimately fired. With the assistance of the Pacific Union, they filed suit against Kellogg, alleging failure to accommodate their religious practices as required by law.
Irony abounds in this case. The Kellogg company was founded as the Battle Creek Toasted Corn Flake Company in 1906 by Will Keith Kellogg and his brother John Harvey Kellogg, both Seventh-day Adventists. Will invented the concept and method of flaking corn in a search for a healthful breakfast food for use in John Harvey’s Battle Creek Sanitarium. The Kellogg plant in which Tabura and Diaz worked made, among other products, vegetarian Garden Burgers. And in spite of Kellogg’s insistence on the importance of round-the-clock production, the plant was closed, and the remaining production moved to another plant in 2015, just a year after the filing of this action.
Title VII of the Civil Rights Act of 1964, as amended in 1972 (42 USC 2000-e-j) requires that an employer must accommodate the religious beliefs and practices of an employee unless to do so would result in undue hardship on the employer. (Yes, this is going to get technical, but don’t turn away just yet.) Undue hardship has been defined as anything that results in more than de minimis cost (literally, not much), reduces productivity or efficiency or interferes with the rights of other employees.
The order of proof in such a case requires the plaintiff to first make out a prima facie case. To do this, the plaintiff must show that he/she had a sincere religious belief that conflicted with the requirements of the employer, that the employer was on notice of the conflict, and that he/she was harmed as a result of that conflict. That usually is the easy part: the employee believed and practiced Sabbath observance, the employer required attendance at work during the hours of the Sabbath, the employer understood the conflict, and the employee was fired as a result. The burden of going forward with evidence then shifts to the employer to show either that it offered an accommodation that the employee refused or that it could not accommodate because to do so would produce undue hardship.
Proving that undue hardship would result from every option available to the employer would, of course, mean examining every such option, looking at every job available at the time to which the plaintiff might have been transferred, plus potential transfers to other locations. For an employer the size of Kellogg, that would require a good deal of effort. So Kellogg, like many defendants before it, tried to get off easy; it argued that by allowing the use of sick and vacation time it had provided an accommodation. If the accommodation was not enough to satisfy the plaintiffs, it was enough to satisfy the law. Kellogg was arguing that all it had to do was something, and it was not required to remove the entire conflict in order to satisfy the requirement that it accommodate.
To a plaintiff, this is very thin soup. Todd McFarland, the associate General Counsel who has overseen the case, put it, quoting Judge Bacharach, “It’s ‘cold comfort’ to an Adventist to say, ‘You only have to break half the Sabbaths.’ If you don’t have to eliminate the conflict, then that does no good. So this [case] is important to people of faith about what’s required from employment to accommodate Sabbath.” Nevertheless, the United States District Court for the District of Utah held, on July 7, 2016, that Kellogg had done all that the law requires.
So what does the law require? In the 1986 case of Ansonia v. Philbrook , the United States Supreme Court, whose job it is to interpret the law and clarify such matters, considered a case where several methods of accommodation were available. The question was whether the employer was required to choose the method most advantageous to the employee. The Court said that it did not. In writing for the court majority, Chief Justice Rehnquist made it clear that to accommodate means to remove the conflict between religion and employment requirements. Thanks in large part to the steady progress made by McFarland, five of the eleven federal circuits  have adopted that position. Obviously, McFarland was insistent that this fact was presented to the appellate court.
What happens now? The Court of Appeals for the Tenth Circuit heard oral argument in the case on March 22. Given the average time lag for this court between oral argument and published opinion, a decision is expected by the end of June. If the decision is for Tabura and Diaz, well and good. Hopefully, such a decision will include adoption of the "accommodation means removing the conflict" interpretation of Title VII. If the decision is in favor of Kellogg, the next stop is the U.S. Supreme Court which is widely viewed as more amenable to such a case now than in previous terms. The opposite seems true in some lower courts where the view of religious accommodation requests is colored, as it is in the eyes of much of the public, by antipathy to accommodation requests by those who resist such things as baking for or photographing same-sex weddings. Thus, it is a most appropriate time for the high court to clarify just what the law requires in this field.
The second case involves one of today’s high-tension questions: the rights of transgender students and the responsibilities of various institutions to accommodate them.
Gavin Grimm was a public high school student in Gloucester County, Virginia. He is also transgender. In 2014, when he was 15 and starting his sophomore year, his family told his school that he was transgender. Administrators were supportive at first and allowed him to use the boys’ bathroom. But amid an uproar from some parents and students and after two tense school board meetings, the board barred Grimm from using the boys’ bathrooms and instead adopted a policy requiring transgender youth to use separate “single user” restrooms. The ACLU brought this suit challenging the board’s denial of Grimm’s request to use the boy’s bathrooms.
Grimm’s suit sought relief under Title IX of the Civil Rights Act of 1964 and the Constitution’s Equal Protection Clause. The U.S. District Court dismissed the action. The Court of Appeals for the Fourth Circuit reversed on the ground that the Title IX prohibition of sex discrimination includes discrimination on the basis of gender identity . The United States Supreme Court granted review.
So how did the General Conference get involved in this case? Indirectly: it filed an amicus brief jointly with the Becket Fund for Religious Liberty on behalf of the school district . The brief was actually written by the Becket Fund, with input from GC OGC. It argues that in cases involving issues freighted with societal controversy, courts should abstain in favor of the legislature. Here is a summary of the brief’s argument:
In recent years, the Court and the Nation have struggled with deep social conflicts concerning the nature of the human family, personal autonomy, and Americans’ most profound views about the world and their place in it. Yet some of the conflicts that came to the Supreme Court did not have to happen. Some conflicts resulted directly from agency choices to grasp public policy nettles that need not have been grasped. Had these conflicts had a longer time to gestate in public and legislative debate, much of their scope might have been avoided.
Is this argument valid? Should the Court wait for society, acting through Congress, to clarify where it wants the nation to go on such matters? The subject usually cited as an example is abortion: if the Court had not decided Roe V. Wade  and had waited for Congress to act, the country might have been spared much of the hostility that resulted from that decision. But should individual rights be denied because society is slow to make up its collective mind?
Can Congress be trusted to act in a timely fashion if the courts do not? Sometimes it has as in the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But if the Court had not decided Brown vs. Board of Education , when, if ever, would Congress have forced the issue of school integration?
Next, the brief lists specific types of conflicts that will result from interpreting Title IX to include gender identity:
I. Skirting the legislative process to redefine “sex” under Title IX to include gender identity will create widespread conflicts that extend far beyond the education arena.
A. Conflicts for health care providers
In Section 1557 of the Patient Protection and Affordable Care Act, rather than impose new non-discrimination requirements, Congress simply incorporated pre-existing laws, including Title IX which is the only statute referred to that prohibits discrimination on the basis of sex.
Six years after the Act’s passage, the Department of Health and Human Services (“HHS”) issued “implementing” regulations that define “sex” to include “gender identity.” HHS relied not on Congressional guidance but instead on the Department of Education’s interpretation of “sex” as well on the Fourth Circuit’s decision below. The HHS Rule defines “gender identity” as an individual’s “internal sense of gender, which may be male, female, neither, or a combination of male and female.”
Title IX includes an express exemption for religious organizations which provides that Title IX “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization,” but this exemption was not included in the HHS rule.
This rule presents major implications for covered entities and individuals. First, it requires them to offer gender transition procedures or be liable for “discrimination.” Thus, for example, the HHS Rule states that a health provider willing to perform a hysterectomy for a woman with cancer would be deemed “discriminatory” if unwilling to perform the same procedure for a gender transition. It also requires covered entities to pay for any gender transition procedures in their health insurance plans.
Failure to comply with these requirements carries significant risk including loss of Medicare, Medicaid, and other federal funds; debarment from federal contracting; enforcement proceedings brought by the Department of Justice; liability under the False Claims Act, including treble damages; and private lawsuits brought by patients or employees for damages and attorneys’ fees. At least five such complaints have already been filed.
B. Conflicts for other social services providers
Grants under the Act are generally awarded to organizations, including religious organizations that provide short-term and emergency care to homeless youth. This new expansion of the Title IX “sex” non-discrimination requirement will make federal grants conditional on whether religious organizations treat those they serve “consistent with [their] gender identity,” rather than their biological sex, including by “assign[ing] them housing based on their gender self-identification”.
C. Conflicts in conducting internal affairs
Construing “sex” to include “gender identity” will also subject religious organizations to a new category of employment discrimination lawsuits, impeding their ability to carry out their missions by hiring employees who not only share, but also comply with, their faith.
D. Conflicts under state laws because many states construe their laws in harmony with judicial interpretations of federal laws.
II. Administrative rulemaking is uniquely unresponsive to religious concerns.
As evidenced by their overreaching actions in recent years, administrative agencies are not equipped to balance important religious liberty concerns with other interests. This agency insensitivity to religious concerns will necessarily be exacerbated if the Court encourages or repeats the unilateral rulemaking at issue in this case.
Does this parade of horribles accurately reflect the current situation? Or is it an effort to buy time while churches—ours included—figure out where they stand. On one hand, the church’s position seems far from clear. Basically, we are instructed to treat LGBTI+ people with love and caring but not to include them fully in the life of the church. And the recently voted position statement on the subject admits that we are far from fully understanding gender identity.
The ambiguity reflects the church’s position on the wider subject of the conflict between equality rights and religious freedom. According to an OGC source, we want to support equality and non-discrimination in the public sphere but preserve our freedom to operate internally. Thus, we support gender equality but reserve our right to deny ordination to women.
On the other hand, the threat of litigation is real. On April 19, the ACLU brought suit against a Catholic-affiliated hospital for refusing a hysterectomy for the purpose of gender reassignment. Such cases are also current in Wisconsin, Pennsylvania, Illinois, and other states.
A more basic question is why we refuse to do a hysterectomy for gender reassignment. (Actually, many Adventist hospitals would not refuse to do so.) The problem seems to come down to a refusal to face scientific reality. Those who oppose recognition of transgender individuals or inter-sexuality as inherent and not chosen try to differentiate between gender and gender identity by claiming that gender is about biology while gender identity veers from hard science into the suspect world of psychiatry. Below the shoulders is hard science; above the shoulders is not. Gender identity is merely a social construct. One advocate of this point of view was asked what would happen if a brain scan were developed that would reveal the individual’s true gender. His answer? “That would be a problem.”
Before the Court could hear argument on these issues, a new development presented an easier way out. On February 22, the Department of Education withdrew the interpretation of Title IX on which the suit was based, and the Supreme Court sent the case back to the Fourth Circuit for reconsideration. The Circuit then vacated the decision and dismissed the case as moot since Grimm has now graduated from high school.
Did the GC/Becket brief work? It advocated avoidance of the key issue, and that is what happened. We will probably never know the effect of the brief on the Court. Its effect on the ongoing effort to accept LGBTI+ individuals into the full life of the church is, unfortunately, much easier to discern.
Recent review of the papers of Heber Votaw, editor of Liberty Magazine and associate director of what is now the GC Department of Public Affairs and Religious Liberty, show Votaw actively involved in solving many such cases from the late 1920s through the 1950s. Often those cases are remarkably similar, in both issues and type of employers involved, to current cases.
 Ansonia v. Philbrook, 479 US 60 (1986).
 The ‘conflict elimination’ interpretation has been adopted in the Second, Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeals. The First, Fourth and Eighth Circuits have not done so.
 410 US 113 (1973).
 347 US 483 (1954).
Mitchell A. Tyner retired as Associate General Counsel of the General Conference.
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