Bear Creek Bible Church v. Equal Emp't Opportunity Comm'n

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Citation571 F.Supp.3d 571
Docket NumberCivil Action No. 4:18-cv-00824-O
Parties BEAR CREEK BIBLE CHURCH & Braidwood Management, Inc., individually and on behalf of those similarly situated, Plaintiffs, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Defendants.
Decision Date22 November 2021

Jonathan F. Mitchell, Austin, TX, Charles W. Fillmore, H. Dustin Fillmore, III, The Fillmore Law Firm LLP, Fort Worth, TX, Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, for Plaintiffs Braidwood Management Inc., Bear Creek Bible Church.

Benjamin Thomas Takemoto, Eric J. Soskin, Michael Fraser Knapp, U.S Department of Justice, Washington, DC, Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants Equal Employment Opportunity Commission, Charlotte A. Burrows, United States of America, Janet Dhillon.

Benjamin Thomas Takemoto, Michael Fraser Knapp, U.S Department of Justice, Washington, DC, for Defendants Jocelyn Samuels, Andrea R. Lucas, Keith E. Sonderling, Merrick Garland.



In this declaratory judgment class action lawsuit, a Christian church and a Christian-owned business seek to protect their ability to require their employees to live by the teachings of the Bible on matters of sexuality and gender. They, individually and on behalf of those similarly situated, seek religious exemption from, and a declaration that they do not violate, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 so they may hire and fire in accordance with sincerely held religious beliefs and employment policies.1

For the following reasons, DefendantsMotion for Summary Judgment (ECF No. 95) based on standing, ripeness, and sovereign immunity is DENIED . PlaintiffsMotion to Certify Classes (ECF No. 71) is GRANTED in part and DENIED in part. As set out below, the Court certifies a Religious Business-Type Employers Class on all claims of Braidwood Management Inc. ("Braidwood") and certifies an All Opposing Employers Class on Claims 4 and 5. Finally, the partiesMotions for Summary Judgment (ECF No. 72; ECF No. 95) are GRANTED in part and DENIED in part.2

Because Bear Creek Bible Church ("Bear Creek Church") and the Church-Type Employers Class are not burdened by Title VII, PlaintiffsMotion for Summary Judgment is DENIED in part as to this class. PlaintiffsMotion for Summary Judgment for the Religious Business-Type Employers Class is GRANTED in that those in that class are protected by the Religious Freedom Restoration Act and the First Amendment. The Court finds that the policies of both the All Opposing and Religious Business-Type Classes regarding sexual conduct, dress codes, and restrooms do not violate Title VII as a matter of law. However, Plaintiffs’ Motion is DENIED and Defendants’ is GRANTED as to employer policies concerning bisexual conduct, sex-reassignment surgery, and hormone treatment.


In 2020, the Supreme Court held that Title VII's sex discrimination prohibition forbids employers from firing employees based on homosexuality or transgender status, because to do so is a form of discrimination based on sex. See Bostock v. Clayton Cnty. , ––– U.S. ––––, 140 S. Ct. 1731, 1753, 207 L.Ed.2d 218 (2020). The Bostock Court expressly left open the implications for religious liberties and other matters arising from its decision. See id. at 1754. Plaintiffs present those questions here and seek a declaration that they, and others similarly situated, are permitted to refrain from employing those who engage in conduct that violates their sincerely held religious beliefs and First Amendment protections. Plaintiffs also seek a declaration that Bostock does not prohibit sex-neutral codes of conduct.

A. Procedural History

Plaintiffs initially sued the Equal Employment Opportunity Commission ("EEOC"), seeking declarations that (1) the First Amendment and the Religious Freedom Restoration Act ("RFRA") give Plaintiffs the right to operate their churches and businesses in accordance with their sincerely held religious beliefs that homosexual behavior is immoral, and (2) any federal statute, executive order, or agency rule, policy, or regulatory guidance that infringes or burdens that right is unenforceable. Compl., ECF No. 1. The Court stayed the proceedings pending resolution of Bostock . ECF No. 38.

In response to Bostock , Plaintiffs amended their complaint to reassert their claims for declaratory judgment seeking religious exemption from Title VII. The Amended Complaint asserts five claims for declaratory judgment: (1) The Religious Freedom Restoration Act Compels Exemptions To Bostock ’s Interpretation Of Title VII; (2) The Free-Exercise Clause Compels Exemptions To Bostock ’s Interpretation Of Title VII; (3) The First Amendment Right Of Expressive Association Compels Exemptions To Bostock ’s Interpretation Of Title VII; (4) Title VII, As Interpreted In Bostock , Does Not Prohibit Discrimination Against Bisexual Employees; and (5) Title VII, As Interpreted In Bostock , Does Not Prohibit Employers From Establishing Sex-Neutral Rules Of Conduct That Exclude Practicing Homosexuals And Transgender People. Defendants moved to dismiss Plaintiffs Amended Complaint. Mot. Dismiss, ECF No. 49. The Court denied the motion to dismiss for lack of jurisdiction in part and granted the motion in part. ECF No. 56. The Court held that Plaintiffs have Article III standing to pursue this litigation but that any cause of action against the Attorney General was too speculative.4 Plaintiffs then filed a motion to certify a class (ECF No. 71) and a motion for summary judgment (ECF No. 72). Defendants also filed a motion for summary judgment (ECF No. 95). All motions are now ripe for the Court's review.

B. Plaintiff Bear Creek Bible Church

Bear Creek Church is a nondenominational church located in Keller, Texas. Bear Creek Church requires its employees to live according to Biblical teachings on matters of sexuality and gender. In accordance with those teachings,5 Bear Creek Church does not recognize same-sex marriage. Any church employee who enters into a same-sex marriage will not receive benefits for his or her same-sex partner and faces immediate dismissal. Bear Creek Church also requires its employees to use the restroom designated for their biological sex. Therefore, Bear Creek Church does not consider the following individuals for any ministerial and non-ministerial employment: practicing homosexuals, bisexuals, crossdressers, and transgender or gender non-conforming individuals. Bear Creek Church has at least fifteen employees, so it is subject to the requirements of Title VII. Some of these employees are non-ministerial employees such as secretaries and custodians.

Bear Creek Church asserts that there have been at least three instances in which it employed someone who was engaged in "sexually immoral behavior, including homosexuality" or "gender non-conforming behavior including cross-dressing, transvestism

, efforts to change or transition one's gender, or asserting a gender identity that departs from one's biological sex." Salveson Decl. 1, ECF No. 90-4. "The first of these individuals was a homosexual pedophile who left church employment in 1996. He was caught molesting children at the church that he worked at after leaving Bear Creek, and is now serving time in state prison." Id. at 2. "The second of these individuals left church employment in 2007, after he had been discharged for poor performance. [Bear Creek Church] learned that this individual was a homosexual because he married another man after leaving church employment." Id. Bear Creek Church also "had an employee on administrative staff who was engaged in cross-dressing behavior, but he voluntarily left employment." Id. Bear Creek Church does not "believe it is appropriate for these former employees, or other individuals that are struggling with homosexual conduct or gender non-conforming behavior, to be working as employees of the church." Id.

C. Plaintiff Braidwood Management, Inc.

Braidwood employs approximately seventy individuals, who work at one of the following three businesses, each of which is owned or controlled by Dr. Stephen Hotze: the Hotze Health & Wellness Center, Hotze Vitamins, and Physicians Preference Pharmacy International LLC. Because Hotze operates these entities as Christian businesses, he does not allow Braidwood to employ individuals who are engaged in homosexual behavior or gender non-conforming conduct of any sort. Hotze Decl. 1, ECF No. 90-5. Hotze does not allow Braidwood to recognize same-sex marriage or extend benefits to an employee's same-sex partner, because he believes that would lend approval to homosexual behavior and make him complicit in sin, violating his sincerely held religious beliefs. Id.

Hotze also will not allow Braidwood to recognize same-sex marriage in part because the law of Texas continues to define marriage as the union of one man and one woman. Hotze believes Texas law continues to prohibit private employers such as Braidwood from recognizing same-sex marriage.6 Hotze does not permit employees of Braidwood to use a restroom designated for members of the opposite biological sex—regardless of the gender identity the employee asserts. Id.

Braidwood also enforces a sex-specific dress-and-grooming code that requires men and women to wear professional attire according to their biologically assigned sex. Hotze Decl. 1, ECF No. 90-5. Men are forbidden to wear earrings, but women may. Men who have customer contact must wear a tie; women are not permitted to wear ties. Id. Women can wear skirts, blouses, shoes with heels, and fingernail polish, while men are forbidden to wear any of these items. Id. Cross-dressing of any sort is strictly prohibited. Id. Hotze enforces this sex-specific dress-and-grooming code to maintain the professionalism of his businesses and to carry...

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