John Bursch is the attorney who argued the Harris Funeral Homes case before the Supreme Court. Harris was one of three cases that the Court linked together in a decision (Bostock v. Clayton County) where a 6-3 majority declared that “sex” in federal nondiscrimination employment law also included “sexual orientation” and “gender identity.”
As Bursch gave an online YouTube interview, “Unpacking Harris: How the Supreme Court Decision will Impact Law and Life.” He explained that the ruling has enormous implications for the Rost family – the owners of the funeral home, for the rule of law in America, and for many areas of our lives.
Bursch is Vice President of Appellate Advocacy and Senior Counsel for the Alliance Defending Freedom (ADF). The veteran of numerous legal battles, having argued 12 cases before the U.S. Supreme Court and more than 30 cases before various state supreme courts, Bursch began by explaining some of the background of the case:
“The case began with a family that loved God and loved Jesus Christ and wanted to do His will. In this case, by serving the grieving families in the Detroit area who had lost a loved one. The funeral home is a fifth-generation family business it’s been around for more than 100 years now. Their one goal was to help families process their grief so that they could get to a better place – and that’s not an easy thing to do”
In 2007, the funeral home hired Anthony Stephens to serve as a funeral director. A funeral director is typically “the first contact with the family after they have lost a loved one,” helping the family with all the arrangements. Harris Funeral Homes had a professional code of conduct and a sex-specific dress code, which Stephens agreed to abide by and signed.
Such dress codes are perfectly legal under Title VII, the 1964 Civil Rights Act that protects against sex discrimination in unemployment, Bursch said. After six years working for the company, “Stephens presented the owner of the funeral home, Tom Rost, with a letter.” The letter explained that Stephens would take two weeks off and then return – but living as a woman named Aimee.
Rost had to think through the implications of this – for the business, for clients and for other employees. As a believer, Rost even had concerns for how this would affect Stephens and his wife. “Ultimately, he decided he couldn’t go along with this plan,” Bursch said, adding “That’s what really began this litigation.”
The Equal Employment Opportunity Commission got involved at that point, seeing this as a “test case” that “could rewrite the national employment laws, which prohibit discrimination based on sex, to include protection based on sexual orientation and gender identity.” Later, the ACLU got involved, representing Stephens as a plaintiff when the EEOC changed its position on the issue under the Trump administration.
The court’s decision has huge ramifications for the Rost family, putting their multi-generational family business at risk. While Stephens died before the Supreme Court decision was announced, the ACLU and Stephens’ family could pursue a civil action, with punitive damages and legal costs, from Harris Funeral Homes. Simply because Rost was following the law as it was written.
That’s a key point that Bursch emphasized, “It’s a fundamental precept of American democracy that every business and every individual should be able to rely on what the words say in a law.” People shouldn’t “have to guess what a court might want those words to say in some future judicial ruling.”
“And whatever you think about what rights should be protected in this context,” Bursch said, “what’s crystal clear is that sexual orientation and gender identity were not included in Title VII of the federal employment law statute.” In 1964, Americans would have recognized “sex” as referring to the biological reality of being male or female.
“In fact,” he stated, “activists have tried to amend that statute many times over the years. At least 50 times they’ve tried to add the phrase, ‘sexual orientation’ to the protected categories,” and at least a dozen times they’ve tried to add ‘gender identity’ Those have never been successful.”
Activists have sought to add those terms to non-discrimination laws because they recognize them as different from sex. Sexual orientation and gender identity are social constructs that refer to changeable thoughts, actions, feelings and identities – not the immutable biological reality of being male or female.
The problem for all of us comes when courts – and here it’s the highest court in the land – change the meaning of a law. Bursch said, “Well first, it’s a fundamental precept of American democracy that every business, every individual should be able to rely on what the words say in a law – that they don’t have to guess what a court might want those words to say in some future judicial ruling.”
So the Supreme Court “changed the law out from under” Rost, interpreting the law different from its original meaning. In doing so, they’ve “upset the separation of powers,” judicially changing the meaning of a law,” taking on Congress’ role.
Finally, the case will surely affect our everyday lives. While the majority said that it was only ruling on employment law, it’s pretty clear that such a sweeping redefinition of “sex” in one federal law will begin to affect other laws. Bursch said, “But as a matter of logic, it’s impossible to say that folks will not want to take advantage of this ruling and extend it to those other areas.”
Bursch pointed to cases involving separate facilities based on sex, like locker rooms, showers, restrooms and overnight accommodations. It’s clear that activists will use this ruling, based on this decision, to argue that these facilities should be open to people based on their gender identity.
On June 17, two days after the decision was handed down, The New York Times carried an article titled: “Dormant Transgender Rights Cases See New Life in Supreme Court Ruling.” The story said “dozens of cases, if not hundreds” would be affected, asserting that ‘L.G.B.T.Q. rights lawyers are preparing to argue that the highest jurists in the land have erased all doubt that transgender people are protected from discrimination on the basis of sex.
The ruling also puts free speech and religious freedom at risk, as Bursch explained that employers who “want to follow their religious beliefs” will now “be prohibited from doing that.” He stated, “You’ve got employees who are going to have to fear disclosing their beliefs about marriage, about human sexuality, about sex, and gender ideology, because if they do that and the employer considers that to be creating a hostile environment for other employees, they could be let go.”
Bursch believes that “churches are okay for now,” due to religious freedom protections. But he says, “Then all of us have to ask ourselves, well how long will those religious liberty protections last?”
The sweeping negative effects of this decision – on the Rost family, the rule of law and our everyday lives – are demoralizing for many Christians. And yet, Bursch remained upbeat and hopeful during the interview. The next article in this series will give us some reason for hope – and some advice for how believers can respond.
Related articles and resources:
Watch the ADF Webinar: Unpacking Harris: How the Supreme Court Decision will Impact Law and Life
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