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Case Shows Faith-Based Programs’ Inherent Homophobia

by Scott Stiffler

EDGE Media Network Contributor

Tuesday August 12, 2008

Alicia Pedreira had no legal recourse when she was fired in 1998 from the Kentucky Baptist Homes For Children. It was a job that her taxes partially funded, but that didn't matter: Only Covington, Lexington and Louisville counties shield employees from discrimination based on sexual orientation. Pedreira worked in Bullock county.

The case of Pedreira, an out-lesbian employee, is proving that the faith-based initiatives endorsed by President George Bush--and, more importantly, by both candidates to take his place--is a potential minefield for LGBT employees and contractors.

As McCain and Obama boldly proclaim their support for religious organizations that provide social services, the issue of faith-based initiatives has returned to the forefront of election and human rights issues.

Although these groups provide a safety net, their charity comes with a price. Indoctrination and discrimination are often the consequences paid by the people they serve as well as employees who do not share their particular religious beliefs.

For decades, limited financial resources have led the state of Kentucky to depend upon the Baptist Church as its largest provider of childcare services. Those under Baptist care have endured religious indoctrination without scrutiny or challenge. State law has also allowed the Baptists to discriminate against employees whose lifestyle conflicts with church teachings.

As a result, LGBTs in Kentucky must cloak their sexuality or face termination from employers. The freedom that religious organizations have to discriminate also has chilling implications for others whose faith, conduct and beliefs differ from that of their employer.

Since April 2000, an unsuccessful legal challenge has denied Pedreira the return of her job or changes to the law.

Filing on behalf of Pedreira were the American Civil Liberties Union and Americans United for Separation of Church and State. Their lawsuit questioned the firing of Pedreira based on the fact that her lifestyle conflicted with KBHC's views on sexual orientation. It also brought into play the use of taxpayer dollars to fund organizations that discriminate.

On March 31, 2008, the district court dismissed the case. On July 17, the ACLU and Americans United filed a brief with the federal appeals court (sixth circuit) seeking to move forward with their discrimination lawsuit against the Kentucky Baptist Homes For Children, Inc. (renamed Sunrise Children's Services, but referred to in the lawsuit as KBHC).

"What it comes down to is the Federal District Court said that it's OK to force employees to conform their conduct to the employer's religious beliefs as long as the employer does not actually force the employee to hold those beliefs," Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, says of the policy of seemingly confounding doublespeak.

As a result, he adds, "If somebody identifies themselves as gay or lesbian or engages in gay or lesbian conduct, they are not allowed to work for this state-funded organization.

Legal Challenge: Being Gay Conflicts With Religious

Pedreira, adds Ken Cho, a senior staff lawyer with the American Civil Liberties Union's Lesbian Gay Bisexual Transgender Project, "was not fired because she's a lesbian; but rather, because her lesbianism was inconsistent with KBHC's religious beliefs. That's why she has a claim under the law."

As interpreted by the ACLU, Pedreira could hold a contrary religious belief in her head, "but she would have to, in her life, objectively model KBHC's religious beliefs in terms of how she talked about homosexuality."

When the lower court dismissed Pedreira's discrimination claims, its findings stated that Pedreira didn't suffer religious discrimination. "The Baptist Homes did not require her to believe that being a lesbian is sinful," Cho explained. "They merely required that she observe its religious belief that being a lesbian is sinful."

This form of de facto indoctrination of employees pales in comparison to what KBHC's charges were subjected to. In addition to advocating for the rights of LGBTs to be out in the workplace, the use of tax dollars to support indoctrination is another reason why this case is so important.

Children and parents are not normally given a choice as to where the state places them. "The state doesn't consider the child or parent's religious beliefs in deciding where to pace the children," Luchenitser points out.

'KBHC only cared that she conform her conduct to its religious beliefs."

Baptist homes, he says, indoctrinate children in many ways. These include "Prayers at mealtime, pressure to participate in Bible study and the display of Christian symbols within the facilities."

Exit interviews have revealed numerous incidents of children forced to attend Baptist church services while being denied the opportunity to attend services of their own faith. "The bottom line is this is a coercive religious environment that tries to convert children to the Baptist faith." says Luchenitser.

This kind of incident and situation increasingly concerns Lambda Legal. "We see so much discussion of religious liberty," said David Buckel, senior counsel for Lambda Legal. "But religious freedom goes too far when they accept taxpayer money, engage in commercial activity and discriminate."

The key is the dipping of these organizations into the public trough. Buckel notes that when such activity becomes the subject of legal action, "The challenges are largely successful when taxpayer money is involved."

In a July 1, 2008 speech, Democratic presidential nominee presumptive Barak Obama announced a proposal to expand the funding of faith-based initiatives. "This initiative has been a failure on all counts," commented Rev. Barry W. Lynn, executive director of Americans United. "It ought to be shut down, not expanded."

Both Lynn and Buckel praise Obama's commitment to draw a line between those who accept government funds and those who discriminate. However, Lynn cautions that it is "imperative that public funds not pay for proselytizing or subsidize discrimination in hiring. Obama has promised that he will not support publicly funded proselytism or discrimination in hiring, and that's an important commitment."

Resolving the Pedreira Case

Although he acknowledges the importance of religious freedom, Buckel stresses that "As much as we all have to fight to protect it, we see religious groups going too far when they say they can use taxpayer funding to discriminate."

As for the timetable of the Pedreira case, the ACLU and Americans United must wait until their opponents file their brief on September 22. Pedreira's counsel then will file a reply brief on October 22. Then the Sixth Circuit Federal Court of Appeals will schedule an oral argument, probably in a few months after the briefing is complete. After that, a decision will be at least another few months away.

It will be a decision almost a decade in the making, and one that arrives after a unique legal interpretation.

According to Cho, the district court created an artificial distinction between belief and conduct "in a way we've not seen before. What it said was if KBHC had fired her because her religious beliefs were not consistent with their belief, that would be discrimination. But here, KBHC didn't care what her religious beliefs were. They only cared that she conform her conduct to its religious beliefs."

That, as interpreted by the court, is not religious discrimination.

If the case is won before the sixth circuit of appeals, it goes back to the trial court. If that trial is won, KBHC would no longer be able to receive state funds if they maintain a pervasive Baptist environment and, Luchenitser said, "indoctrinate children placed there by the state."

A win before the Sixth Circuit would be an important precedent. "That makes clear that an employer cannot discrimination against an employee for religious reasons by forcing the employee to conform their behavior to a religious code of conduct or the employer's particular religious beliefs," Luchenitser added.

He's cautiously optimistic that his side will win: "In the sixth circuit, it will become the law that all federal courts have to follow. Outside the sixth circuit, it is not binding. But other courts might view it as persuasive and follow it."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.