Liberty University Employment Case Has the ‘Supreme Court Written All Over It’

By Mat Staver

Jonathan Zinski’s lawsuit powered by the American Civil Liberties Unition (ACLU) against Liberty University has presented a critically important legal issue worth solving.

On March 17, I argued on behalf of Liberty University in this case, and it clearly has the Supreme Court written all over it, especially in light of the ACLU’s extreme position that raised the concern of the judges.

As Judge Wynn stated during the oral arguments in Zinski v. Liberty University at the United States Court of Appeals for the Fourth Circuit, “There are issues before us today that the Supreme Court has not addressed, some of which, probably, the Supreme Court intentionally deferred for [a] future look or just avoided having to deal with.”

A Setup from the Beginning

Upon application for employment, Zinski affirmed Liberty University’s Christian doctrinal statement, while remaining in open rebellion to it, having taken female hormones for at least four months. The plan was to work through the probation period and then tell Liberty, although Zinski admits the plan was revealed to some co-workers. Zinski also admits that female hormones would cause visible changes and wanted to let HR know before those changes became more apparent.

Zinski requested that Liberty set aside its doctrinal statement in favor of a different theology held by Zinski’s church. Liberty had no choice but to remain faithful to its doctrine and thus terminated Zinski, who concedes to not being a coreligionist to Liberty’s faith.

The ACLU hoped to use this case to destroy the Christian mission of Liberty University and all religious employers.

The ACLU’s case relies on a fundamental distortion of the Supreme Court opinion in Bostock v. Clayton County. The ACLU contends that Liberty University is required to employ Zinski, even while remaining in open rebellion to the university’s doctrine.

Zinski claims his religious is all that matters, that the courts are authorized to force Liberty University to set aside its doctrine and to allow employees to openly defy the school’s Christian faith. But how can Liberty “Train Champions for Christ” if its employees are heathen and actively working to undermine the university’s core Christian belief?

It can’t.

In fact, if the doctrine of faith-based employers had to yield to every contrary belief of employees, then religious freedom means nothing. No faith-based employer could survive.

Zinski’s entire lawsuit challenging Liberty University’s decision to terminate his employment on the basis that he openly violated Liberty’s religious beliefs can be boiled down to the notion that the Supreme Court in Bostock eliminated Liberty University’s constitutional right to demand its employees conform to its sincere religious beliefs. In other words, according to Zinski and the ACLU, the religious protection afforded under the First Amendment means nothing in the employment context because Bostock altered the landscape.

Hardly.

Zinski contends that Bostock answered every question of relevance to Liberty University’s decision to terminate Zinski for openly manifesting and defiantly stating an intention to act in direct contradiction to Liberty University’s doctrinal statement and religious employment requirements. Indeed, Zinski goes so far as to claim that Bostock involved “the very example before this Court.”

Not so fast.

The ACLU’s Ultimate Objective

During the oral argument, Judge Quattlebaum asked the ACLU attorney whether a “Christian church that has 16 employees, one of which is a janitor, must hire a transgender employee even though their beliefs … would be contrary to their doctrine?”

The ACLU attorney said, “YES!”

Judge Wynn pushed back on the “must-hire” notion, that forcing a church to hire someone whose beliefs contradict its doctrine would effectively “force a church to do something.” Judge Wynn questioned whether the court would be “making decisions for the church” in these matters.

The ACLU’s position is extreme and contrary to the law. This statement by the ACLU was astonishing, but it reveals the ultimate objective of this case — to eliminate religious freedom and replace it with a radical LGBTQ agenda.

Why the Supreme Court Should Weigh In

But that is not what the Supreme Court suggested in Bostock. The Court explicitly noted that it was addressing a narrow and singular question about “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.” The Court then said, “no other religious liberty claim is now before us.”

Bostock noted that the Court was “deeply concerned with preserving the promise of free exercise of religion enshrined in our Constitution,” and that “Congress included an express statutory exception for religious organizations.” Sections 702 and 703 of Title VII in the Civil Rights Act of 1964 would impact the result reached in Bostock. The Court also said the federal Religious Freedom Restoration Act (RFRA) is a “super statute” that “amends” the entire federal code to protect religious freedom.

In other words, Bostock means nothing in the context of a religious employer like Liberty University because Sections 702 and 703 of Title VII, RFRA, and the First Amendment itself fundamentally control the result in the ACLU’s case against Liberty University.

The Supreme Court was clear that it was not deciding issues like those pertaining to Liberty University’s religious beliefs, noting that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.”

The future is here with the Liberty University case.

Judge Wynn further noted “why the tension is now developing ... the Supreme Court ... had its chance to address this and it just hasn’t addressed it. ... This question has been out there for years and years and years. ... The Supreme Court could help us out on this and give us an answer.”

It should.

The Constitution Has the Final Say

And the answer is simple: The First Amendment and federal employment law protect Liberty University’s right to require every employee to abide by its religious convictions. Anything less would mean the First Amendment’s protection of religious institutions is a semantic exercise.

The Supreme Court must recognize the future is here. Liberty University’s fundamental right to espouse its religious beliefs, to operate according to those beliefs, and to demand that its employees abide by those beliefs is at stake.

It is not beyond exaggeration to say that the very basis for religious freedom hangs in the balance. The Constitution tipped the scales on that balance 250 years ago, and it is time for the Supreme Court to say so explicitly.

For more from Mat Staver, Founder and Chairman of Liberty Counsel, click HERE.