For people of normal conscience, the death of a loved one is a deeply painful time. For those of us who have had to make funeral arrangements for loved ones, it is a stressful time. But imagine the discomfort as you make funeral arrangements to realize that the funeral director is a male wearing female clothing.
So begins an article in Touchstone called Another Random Act of Justice on August 22, 2016, authored by Michael Avramovich.
It is the story of a family owned Michigan funeral home, a male director whom they employ who desires to dress as a woman, and conflict between the funeral home's dress code, the Obama Administration’s Equal Employment Opportunity Commission (“EEOC”), and the transgender rights of expression and such.
The funeral home's concern is offending its clients at a very difficult time in their lives. The man's concern is the freedom to wear a female clothing while interacting with that public. Everyone agreed that the man could dress as he desired on his own time. The dilemma is what to do at work. The man was let go from his job and, as we all might predict, the EEOC took up his case using the courts in an attempt to force the R.G. & G.R. Harris Funeral Home to allow the biologically male employee to dress as a woman.
Normally, of course, in these type of situations, Christians always lose. But Mr. Rost was represented by Doug Wardlow, an attorney with Alliance Defending Freedom (“ADF”). Mr. Wardlow argued that the funeral home did not violate Title VII, the federal law that prohibits sex discrimination in employment. Rather, he argued that Mr. Rost was protected by a different federal law, the Religious Freedom Restoration Act (“RFRA”), which says that the government cannot force someone like Mr. Rost to violate his faith unless it demonstrates that doing so is the “least restrictive means” of furthering a “compelling government interest.” The infamous American Civil Liberties Union and its local partner, the American Civil Liberties Union of Michigan, also filed briefs in this case against the funeral home owner.
In a seemingly random act of justice, last Thursday, a federal court in eastern Michigan agreed with Mr. Rost that the EEOC’s actions violated RFRA. In his 56-page Opinion and Order (should it really take 56 pages for this type of case?), available here, Judge Sean F. Cox, a President George W. Bush appointee, wrote the following:
The Court finds that the Funeral Home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs . . . Rost sincerely believes that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at the funeral home because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift. The Supreme Court has directed that it is not this Court’s role to decide whether those ‘religious beliefs are mistaken or insubstantial….’ Instead, this Court’s ‘narrow function’ is to determine if this is ‘an honest conviction’ and, as in Hobby Lobby, there is no dispute that it is….Normally, an absence of common sense and the newly minted rights of the individual's self-expression would have conspired to leave us licking our legal wounds or else intimidated even by the prospect of legal action to back down from principle. In this case, we met the surprise of a judge who considered all rights and determined that religious rights are not open to be trampled upon in pursuit of every other presumed right. Of course it is a victory but we might just have to wait for the appeals process to find out if this ruling will stand.