Those who operate churches, religious schools, or other religious institutions may have followed recent news and wondered whether they should install bathrooms to accommodate persons who claim to be “transgender.”
Because of the First Amendment right to freely exercise religion without government interference, and to avoid potentially devastating legal liability if a minor is sexually assaulted by a “transgender” person, the answer is “no.”
In Little Sisters of the Poor v. Burwell, a 2016 decision, the U.S. Supreme Court addressed the “HHS mandate” in the Obamacare law and the “accommodation” to that contraception mandate that the Obama administration put forward for the Little Sisters of The Poor and other similarly situated religious organizations.
The HHS mandate requires employers to include in their insurance offerings coverage for contraceptives, including products that can induce early-pregnancy abortions.
The Court vacated the lower court’s ruling that the Little Sisters had to facilitate access to contraceptives, and that the contraceptive mandate in Obamacare did not substantially burden their religion.
The Court provided a roadmap for an ultimate resolution to the case by outlining the accommodation it suggested and the Little Sisters endorsed, and which the government reluctantly agreed to.
Readers of this newsletter may have seen in the news that on July 2, 2015 – the week after the U.S. Supreme Court’s decision in Obergefell v. Hodges that legalized gay marriage nationwide, Brad Avakian, Oregon’s BOLI (Bureau of Labor and Industries) Commissioner, issued his Final Order in a BOLI case entitled In the Matter of Melissa Elaine Klein, dba Sweet Cakes by Melissa.
Oregon and most other states have laws that prohibit employment discrimination based on sexual orientation or marital status.
However, Oregon has a statutory exemption to these laws for churches and other religious institutions.