Billard decision reveals strong protections against ideological extremism

In his dissent in Obergefell v. Hodges (2015), the case that constitutionalized “same-sex marriage” and promptly became the emblem of judicial excess for our time, Justice Samuel Alito warned that the Court’s linking of traditional marriage laws to laws that denied equal protection for blacks and women would be an analogy “exploited by those who are determined to stamp out every vestige of dissent.”

He was, of course, right. Federal antidiscrimination law is one highly effective legal cudgel used in the war against dissent on gay rights. The very good news, as illustrated by the recent decision of the U. S. Court of Appeals for the Fourth Circuit in Billard v. Charlotte Catholic High School, is that religious schools enjoy potent statutory and constitutional defenses against these assaults.

Lonnie Billard taught English and drama at Charlotte Catholic High School in North Carolina. The school fired him when it learned of his plans to marry his same-sex partner. The school rightly concluded that such action violated the Diocese of Charlotte’s policy against engaging in conduct that is contrary to Catholic teaching. Inevitably, Billard brought an action against the school in federal court for sex discrimination under Title VII. Such an action was invented under this federal statute in the disastrous majority opinion by Justice Neil Gorsuch in Bostock v. Clayton County (2022). (Justice Alito’s Bostock dissent memorably begins: “There is only one word for what the Court has done today: legislation.”)

The district court brushed aside the school’s defenses and found that Billard had been unlawfully discriminated against because of his sex. Notably, the school waived a defense known as the “ministerial exception,” which prevents courts, because of the first amendment’s religious protections, from interfering with ministerial employment matters or ecclesiastical decisions. Instead, it unsuccessfully advanced a more sweeping defense under the soundest reading of Title VII itself.

The appeals court, in its majority opinion, tied itself in juridical knots to reverse the district court on the narrowest possible grounds, a result that will likely avoid the possibility of review by the U.S. Supreme Court. The majority opinion was written by Judge Pamela Harris, a very liberal Obama appointee. Although the school had waived the ministerial exception defense in the district court, the opinion by Judge Harris raised it on its own and used it to decide the case for the school. The alternative was to use Title VII, which would have given the school even broader protection in dealing with all its employees, not just those who fit into the ministerial exception.

Paradoxically, to avoid providing wider protection to the school, the court had to read the ministerial exception in a very expansive way to include a lay teacher like Billard. (As the astute Ed Whelan observed, this case “may be the broadest application of the ministerial exception by any federal appellate court.”)

In order to limit the reach of protections for religious liberty, the court also disregarded what is called the constitutional-avoidance doctrine: that is, a court should avoid deciding a constitutional question if a case can be decided on statutory grounds. To apply this well-established principle of restraint here would have required that the court to rule using the more expansive protections available to the school under Title VII—a direction it manifestly wanted to avoid.

The slipperiness of these moves in the opinion was identified in the very cogent separate opinion by Judge Robert King. A Clinton appointment, Judge King read the law honestly and concluded that the school is protected from this suit by Title VII; he properly repudiated the contortions of the majority to invoke the ministerial exception to decide the matter.

Despite the inside-baseball twists and turns of Judge Harris’s opinion in this case, what is perfectly clear is that so stout are these defenses that religious schools now have little to worry about from litigation in their hiring and firing decisions. Too often, the threat of a suit in an area of unsettled law results in prudential capitulation on the part of religious schools. With anti-discrimination law in the context of employment, by contrast, they are formidably guarded from expensive and cumbersome suits. They can hire and fire as they see fit and get on with the business of educating students.

To be sure, the results-driven rot of Obergefell and Bostock remains in our law and culture. The ferocious efforts to crush dissent from gay-rights “orthodoxy” is (as Justice Alito recognized) relentless. But Billard shows that valuable protections have been erected against the force of this ideological extremism.

This case is a significant win for Catholic schools—indeed, for the doctrinal integrity and autonomy of all religious schools—and for the cause of religious liberty in our constitutional order.