Kentucky physician challenges gay-rights law on religious-liberty grounds

Wednesday, September 15, 1999

Citing literal belief in biblical passages, a Kentucky physician says a city ordinance that protects gays and lesbians from employment discrimination ought to be invalidated as a violation of religious-liberty rights.

J. Barrett Hyman, a Louisville obstetrician and gynecologist represented by a socially conservative law firm, filed a federal lawsuit on Sept. 13 against the city. He seeks an injunction against the ordinance, which prohibits all employers from discriminating against workers or potential hires based on sexual orientation. A first-time violation of the ordinance, which took effect in February, carries a fine of $10,000.

According to the law firm, the American Center for Law and Justice, which was founded by televangelist Pat Robertson, Hyman intends to act in accordance with his religious beliefs, “which likely will bring him into direct conflict with the clear provisions of the ordinance.” Therefore, the ACLJ wants a federal court declaration that the Louisville law violates Hyman's religious liberties under the First Amendment and the Kentucky Constitution and should not be enforced.

As a Christian, Hyman “sincerely believes that acts of homosexuality, bisexuality, transgenderism and other departures from monogamous heterosexual relations are sinful and grievously offensive to God,” the ACLJ says in its 19-page complaint. “In addition to his objection to facilitating sinful behavior, plaintiff believes that individuals who engage in the aforementioned activities demonstrate a serious lack of moral character which renders them unfit for employment in his medical practice.”

The ACLJ contends that Hyman's understanding of Christianity requires him to “deny employment to certain persons on the basis on their sexual orientation,” and compels him “to discharge from employment any person whom he learns is living a homosexual, bisexual, transgendered or transsexual lifestyle.” Furthermore, the ACLJ says the city's anti-discrimination law must be invalidated because threat of its enforcement “chills the rights of plaintiff and other similarly situated employers to act in conformance with their sincerely held religious beliefs.”

Hyman may have difficulty convincing a federal judge that his Christian convictions should outweigh the city's interest in preventing employment decisions based on bigotry. In 1990 the U.S. Supreme Court ruled that neutral laws, which do not target religion, are generally constitutional even if they infringe upon an individual's religious beliefs.

“The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development,” Justice Antonin Scalia wrote in the 1990 Employment Div., v. Smith decision.

David Banks, the attorney for the Louisville Board of Aldermen, told The Courier-Journal, a Louisville daily, that he did not believe Hyman's lawsuit raised a serious constitutional challenge to the law.

“The courts generally haven't been sympathetic to claims based on religion where the law in question is neutral with respect to religion,” Banks said. “This is not a law that is directed at any one religion.” Banks also compared Hyman's suit to those challenges put forth in the 1950s and '60s by employers who said their Christian beliefs forbade them from hiring African-Americans.

However, Frank Manion, the ACLJ's senior counsel for the Midwest, said that the Louisville law was an affront to citizens' First Amendment rights.

“By forcing employers who object to homosexuality and transgenderism to hire people who practice those lifestyles, the city of Louisville is attempting to legislate its own view of morality at the expense of the fundamental rights of its citizens,” Manion said.