Almost a decade ago, a substitute teacher at Charlotte Catholic High School went on Facebook to announce plans to wed his longtime partner. “Yes, I’m finally going to make an honest (at least legal) man out of Rich (Donham),” Lonnie Billard wrote on Oct. 25, 2014, two weeks after the federal courts struck down North Carolina’s ban on same-sex marriage.
“I thank all the courageous people who had more guts than I who refused to back down and accept anything but ‘equal.’” The couple remains married. But little did Billard know that within weeks of announcing his future nuptials, he would lose his teaching job, removed for an online post that school officials would describe as a public challenge to the Catholic Church’s longstanding doctrinal support of traditional marriage.
Or that his subsequent 2017 sex-discrimination lawsuit against his former school and Catholic leaders in Charlotte would still be moving through the federal courts, putting the now-76-year-old Billard at the center of a high-stakes church/state legal fight that could reach the U.S. Supreme Court.
In the coming months, Billard vs. the Catholic Diocese of Charlotte will get its most important public airing to date. It will take place in Richmond, Va., where the case will be heard by a three-judge panel from the U.S. Fourth Circuit Court of Appeals, the second most powerful court in the land. The court, which handles appeals from the Carolinas and four other states, had originally scheduled oral arguments for Billard last week. But they were delayed pending a Supreme Court ruling in a related case from Colorado, which is expected no later than June.
Billard’s case already has drawn an impressive national audience. It will be argued by legal heavyweights on both sides of the religious-liberty/workplace protection debate. Dozens of parties — including 17 states — already have intervened.
The Diocese is challenging a 2021 ruling by U.S. District Judge Max Cogburn that the high school’s decision to stop using Billard as a substitute teacher violated a federal ban on sex discrimination in the workplace, a finding that diocesan leaders contend undermines church autonomy and the right of religious schools to promote their spiritual mission in making employment decisions.
“The question in this case is simple but significant: May religious schools require their teachers to support their core religious practices?” The Diocese’s lawyers say at the opening of their written appeal. “The answer — supplied by federal statute, the Constitution, and binding precedent — is yes.”
Billard’s attorneys, however, argue that Charlotte Catholic’s decision to remove their client from the classroom violated Title VII of the Civil Rights Act. They also say the Diocese’s arguments call for a “radical” reordering of a decades-old legal balance between religion and law that would shield almost all church personnel decisions from court scrutiny — even those involving secular employees such as Billard.
In doing so, ACLU attorney Joshua Block says, the Diocese and other religious organizations are attempting to broaden the protections they already have to “completely rewrite the boundaries” between secular employment law and religious interests.
“It’s not enough that they have the ministerial exception. It’s not enough that they can hire and fire without being sued for religious discrimination,” says Block. “They want religious organizations to have the ability to make whatever employment decision they want as long as they can point to a religious justification. “Basically, their entire secular workforces would be stripped of all legal protections.”
Billard, who still lives in Charlotte, told the Charlotte Observer on May 9 that he is surprised that his case has dragged on for six years and has attracted this much national exposure. “Why all the attention, I don’t know why,” he said. “Other than I sometimes thought that maybe it was a time when society was waiting for someone to stand up and say, ‘This is not right.’”
‘Religious Freedom’ Cases
The case, according to Robert Tuttle, a professor of law and religion at George Washington Law School, is one of a series of “critically important” court fights nationwide over how churches and spiritual beliefs fit within the legal framework of a secular society. That longstanding friction has been amped up by culture war clashes over such issues as same-sex marriage and transgender rights. Those legal battles have coincided with the emergence of a conservative majority on the Supreme Court that has shown itself to be receptive to expanded legal protections of so-called religious liberties.
As a result, according to Tuttle, “Religious organizations are more willing to litigate than settle because they think they have a better chance of winning.” The high court’s last big ruling on the issue — the 6-3 “Bostock” decision in 2020 finding that Title VII’s ban on sex discrimination in the workplace applies to LGBTQ and transgender employees — appears in line with Billard’s arguments and was prominently cited by Cogburn in his written ruling.
But the Bostock opinion came with a major religious caveat. Justice Neil Gorsuch wrote that the 1993 federal Religious Freedom Restoration Act could serve as a “super statute” to waive sexual discrimination claims against employers who object to hiring gay and trans individuals on religious grounds. Bill Marshall, a UNC law professor whose specialties include the First Amendment and religious legal issues, says the Billard case presents “a tricky line” for the appeals court to follow.
“(Billard) sees this as exclusively about discrimination. The church sees this as exclusively about religion,” Marshall told the Observer. “The Fourth Circuit will have to navigate on which characterization it’s going to accept.”
The Becket Fund, ACLU
What’s at stake in the Billard case may be best defined by who has joined the fight. The Diocese’s defense is being handled for free by the Becket Fund, one of the country’s most successful religious liberty law firms. In the Hobby Lobby case, Becket lawyers successfully argued before the Supreme Court that a government mandate requiring private, Christian-owned companies to provide insurance coverage to employees for contraception violated constitutional protections.
In a June ruling for another Becket case, the conservatives on the high court ruled 6 to 3 that a former football coach at a Colorado public high school could pray on the field after games. Other groups, from religious denominations such as the Church of Latter Day Saints and the Seventh Day Adventists to conservative law professors and assorted religious-liberty nonprofits, have filed legal arguments in the Diocese’s behalf.
Meanwhile, Billard’s defense team is headed by Block, a staff attorney with the national ACLU’s Lesbian Gay, Bisexual, Transgender & HIV Projects, who successfully argued before the Fourth Circuit in a landmark Virginia case upholding the rights of transgender students to use school bathrooms that match their gender identity. Block was also a member of the legal team for the ground-breaking Obergefell case, which led to a 5-4 decision by the Supreme Court in 2015 legalizing same-sex marriage nationwide.
Billard’s attorneys include Charlotte civil rights lawyer Luke Largess, who has frequently argued before the Fourth Circuit. As with The Diocese, multiple parties have filed so-called amicus briefs on Billard’s behalf, including the N.C. Council of Churches and a group of attorneys general from 17 blue states and the District of Columbia who have urged the appeals court to uphold Cogburn’s two-year-old decision.
North Carolina Attorney General Josh Stein, who is running for governor next year, did not join his peers, even though both parties in the Billard case are from his state. Asked why, a spokeswoman for Stein said in an email to The Charlotte Observer that the office “generally doesn’t comment on reasons for not joining amicus briefs,” but that those decisions can be affected by such factors as “what other matters we’re involved in” and “the particular legal issues in a case.”
Minister or not?
One of the key areas of dispute in the Billard legal fight is the so-called “ministerial exception.” That’s a legal doctrine that exempts religious organizations from anti-discrimination laws when employment decisions about their ministers are involved.
In 2020, the Supreme Court extended the exception to employees not classified as ministers who nonetheless have clear religious responsibilities. Yet multiple courts — including Cogburn — have ruled that the protection from lawsuits does not extend to a religious organization’s secular workers.
In its arguments to Cogburn, the Diocese stipulated that the ministerial exception did not apply to Billard. In its appeal, the Diocese argues that the doctrine of church autonomy gives it authority to require that all of its teachers, ministerial or not, ascribe to its spiritual mission. “… When a religious organization makes an employment decision based on an employee’s religious ‘belief,’ ‘observance’ or practice — as here — Title VII does not apply,” the Diocese says in its written argument to the Fourth Circuit. “Here, the Diocese seeks to ensure its schools faithfully teach the view of marriage the Catholic Church has taught for millennia. If separation of church and state means anything, it means the government cannot force the church to employ teachers who reject its message.” Tuttle, the George Washington law professor, says no court has given religious organizations what amounts to a blanket pass from Title VII, and it may be a bridge too far even for the conservatives on the Supreme Court.
“The Diocese wants complete immunity from any kind of wrongful-termination claim made by one of its employees, especially in respect to its teachers or anyone else the Diocese considers to be part of its religious mission,” Tuttle says. “They don’t want to have to give a religious reason for a termination. All they want is to win a quick motion for summary judgment … to describe the person’s job and say, ‘We’re out.’’’
Luke Goodrich, a Beckett Fund senior counsel who will make the Diocese’s case before the Fourth Circuit, says he expects to win there. Asked if a loss in Richmond will be appealed to the Supreme Court, where Beckett is in the midst of a long winning streak, Goodrich replied, “We’ll cross that bridge when we come to it.”
Billard said his commitment to his legal fight has never wavered despite the years of delays. “All the focus has been on how the law is written,” he says. “What gets lost is that there is a human being involved. A person who lives and loves everyday. “All I’m asking for is dignity, just like everybody else has.”
This article appears courtesy of our Media Partner The Charlotte Observer.