The City of Medina is considering nondiscrimination ordinances that seek to offer protections to those with alternate sexual orientation or gender identity or expression. While St. Francis Xavier Parish and the Diocese of Cleveland support measures to protect all people from unjust discrimination, portions of the proposal threaten our religious freedom and the ability to practice our faith. Legal counsel for the Diocese of Cleveland focused particularly on matters of employment, schools, public accommodation and housing. Please read the full text of the letter below. While the city has agreed to modify certain portions of the legislation, some portions remain problematic. City Council is set to vote on the measure July 8.

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June 21, 2019

Dear Mayor Hanwell and Members of City Council:

We write on behalf of Saint Francis Xavier Parish, a Roman Catholic Parish located in your City and established in 1860. As you know, the Catholic Church has had a presence in Medina for over 150 years, and has done a great deal of good for the City and its residents during that time through its ministries and outreach and will continue to do so into the future. We have reviewed the proposed ordinance “to prohibit discriminatory conduct on the basis of sexual orientation and gender identity or expression” and wish to share with you our observations and comments.

First, a point of agreement – we agree that no person should be subject to unjust discrimination, including people who experience same-sex attraction or gender dysphoria. However, we do not understand why this ordinance is necessary, as Medina in general seems to be a tolerant and respectful community and there does not seem to be any significant problem of employment, housing, educational, or public accommodation discrimination involving sexual orientation or gender identity / expression in Medina.

Assuming City Council decides to move forward with this ordinance, our concerns, and potential solutions, are outlined below.

1. Employment (Section 717.03)

The employment provisions apply to any employer with over four employees, which would include Saint Francis Xavier. Among other things, the proposed ordinance makes it unlawful for any employer, because of the person’s sexual orientation and gender identity or expression to “refuse to hire that person or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.”

The statute contains an exception for religious employers in 717.03(m): “nothing in this section shall apply to a religious corporation, association, educational intuition, or society with respect to the employment of an individual or a particular religion to perform religious work connected with the carrying on by that religious corporation, associating, educational institution, or society of its religious activities, as recited in Section 4112.02(P) of the Ohio Revised Code.”

Our concerns: The exception contained in 717.03(m) is too narrow. It is narrower than the exception contained in Ohio Revised Code Section 4112.02(P), since it limits the scope of the exception to “religious work” and “religious activities” while 4112.02(P) has no such limitation. The overly narrow scope of 717.03(m) is inconsistent with the Supreme Court’s Hosanna Tabor decision as interpreted by courts including the 6th Circuit.

In addition, it is important for churches, religious schools, and other religious institutions to be able to associate with, including through employment, individuals, whether in secular or non-secular positions, who are in agreement with the teachings of the institutions’ religious faith. Religious institutions should be free from governmental interference in terms of associating with persons whom the religious institution so chooses, especially including in the employment context because a religious institution’s employees are the face of the institution and carry out its mission in whatever role they may have. The success of a church, religious school, or religious institution is predicated on having employees who support and live the religious principles and teachings of that religion. This ordinance, as drafted, interferes with religious institutions’ rights of association and raises constitutional questions.

Furthermore, this ordinance raises questions as to what an employer would need to cover through health insurance. For example, would this ordinance require a church to violate its religious beliefs about the nature of man and woman by mandating insurance coverage for “transgender” surgeries?

Solution: We think the simplest way of addressing these concerns would be to either have a blanket exception for religious institutions or to revise Section 717.03(m) to state:

Nothing in this section shall apply to a religious corporation, association, educational intuition, or society with respect to the employment of an individual or a particular religion to perform religious work connected with the carrying on by that religious corporation, associating, educational institution, or society of its religious activities, as recited in Section 4112.02(P) of the Ohio Revised Code. In addition, this section shall not apply to any employment related decisions or actions taken by a religious corporation, association, educational institution, or society based on conduct that is inconsistent with the moral teachings espoused by it. Furthermore, this section shall not require any religious corporation, association, educational institution, or society to engage in any speech or conduct that is inconsistent with the moral teachings it espouses nor shall it require it to accept, accommodate, participate in, or support such conduct.

1. Schools (Section 717.05)

The legislation states that Educational Institutions, which apparently would include private schools, cannot “deny, restrict, abridge, or condition the use of, or access to, any educational facilities or services to any person otherwise qualified” “for a discriminatory reason” which would include any differential treatment based on actual or perceived sexual orientation and gender identity or expression. There is an exception for religious schools that permits them “to admit students or program attendees on the basis of that student’s or attendee’s religious or denominational affiliation or preference.”

Our concerns: Once again, this exception is too narrow and raises constitutional questions regarding freedom of association. As written, the legislation simply allows a religious school to restrict enrollment to students whose religious affiliation or preference is that of the school. It seems that the legislation would still prohibit religious schools from taking action it may deem to be appropriate for behavior that is contrary to the teachings of the school’s religious faith, and it raises a host of other questions. For example, would this legislation require St. Francis Xavier School to permit a biologically male student who self identifies as female to use the girls’ bathroom or locker room? Would this legislation prevent St. Francis Xavier School from acting in accord with its religious beliefs by requiring male and female students to dress in a manner consistent with their God-given biological identity? Would this legislation prevent St. Francis Xavier School from using pronouns to identify students in accordance with their God-given biological identity? To be sure, we live in a pluralistic society and people may disagree with St. Francis Xavier school’s Christian anthropology. However, no one is required to attend a Catholic school. Should the Medina City government impose a certain ideology on a Catholic school that is inconsistent with the school’s religious beliefs and principles?

Religious schools should be free to ensure that any individuals attending their schools understand that they are attending a religious school, are taught true and accurate doctrine, and that students may be expected to act according to that religion’s moral norms. If religious schools are not allowed to do this, it will jeopardize the religious ethos and environment that is so important to ensuring that religious faith is being successfully transmitted to the students.

Solution: Especially because this ordinance only addresses sexual orientation and gender identity, we think the simplest way of addressing the above concerns would be to amend the language such that religious schools are exempted altogether, as the City of Akron has done. See Akron Municipal Code, Section 38.01(f) (“For purposes of this chapter ‘educational institution’ shall not include any religious institution or school operated by a religious institution.”). This is the easiest way to avoid governmental intrusion into the internal affairs of religious schools on matters involving faith and morals.

Places of Public Accommodation (Section 717.04)

The statute’s public accommodation provision would prohibit any “proprietor or their employee, keeper, or manager of a place of public accommodation to deny to any person except for reasons applicable alike to all persons regardless of a person’s sexual orientation and gender identity or expression the full enjoyment of the accommodations, advantages, facilities, or privileges thereof.” The term “public accommodation” is not defined. In addition, it prohibits the same persons where they seek “to publish, circulate, issue, display, post or mail, either directly or indirectly, any printed or written communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities, goods, products, services and privileges of any such place shall be refused, withheld or denied to any person on account of sexual orientation and gender identity or expression or that such person is unwelcome, objectionable, or not acceptable, desired, or solicited.”

Our concerns: We are concerned about this language to the degree there is no exemption for religious organizations that applies to this section. While we do not believe that churches are within the ordinary definition of public accommodation, does the city consider this section to apply to churches? What about schools? What if a church rents a hall to the public? Would this language prohibit a parish that rents out its parish hall to refuse to rent the hall, for example, to a same-sex couple for a same-sex wedding or wedding reception? Church buildings are the brick and mortar facilities that the church uses to carry out its religious mission. Church buildings are where people pray, worship God, celebrate mass, celebrate other sacramental events, and congregate. A church or other religious institution should not be required by the government to rent its facilities for purposes which are contrary to its religious mission.

Also, with regard to the language about making certain “communications,” would a pastor violate the ordinance by disseminating material in the parish bulletin that does nothing more than explain and defend Catholic teaching on marriage and sexuality? Would a religious schools (again, as it’s not clear whether a school would be, by definition, a place of public accommodation) violate this ordinance, for example, by using textbooks or other materials that present Catholic teaching on marriage and sexuality? If the City believes the answer is yes, this ordinance violates the First Amendment rights of these institutions.

Finally, has the City Council considered the impact of this ordinance on religious business owners or employees, especially in light of the Supreme Court’s recent Masterpiece Cakeshop decision?

Solution: We think a viable solution to this concern would be to include reasonable exemptions, such as the following:

Exemptions:

(a) This section shall not make it unlawful for a religious corporation, association, educational institution, or society to deny the full enjoyment of the accommodations, advantages, facilities, or privileges of public accommodation on the basis of conduct that is inconsistent with the moral teachings it espouses nor shall it require a religious corporation, association, educational institution, or society to accept, accommodate, participate in, or support conduct that is inconsistent with the moral teachings it espouses.

(b) It shall not be unlawful for any person, on moral or religious grounds, to refuse or fail, directly or indirectly, to provide, participate in, support, promote, pay for or cover, arrange, or refer for any item or service in connection with any of the following:

(i) Any wedding ceremony, celebration, or reception.

(ii) Any medical services or treatments related to gender transition or reassignment, including without limitation gender reassignment surgery or hormone treatment.

(iii) Sterilization procedures or in-vitro fertilization or other similar procedures.

(iv) Adoption and/or foster care services to any person or group of persons, including without limitation placing children with any person or group of persons.

(c) Nothing in this section shall be construed as to prohibit any Person from limiting access to bathrooms, restrooms, changing rooms, locker rooms, shower/bathing facilities, or similar facilities on the basis of biological sex.

Fair Housing (717.02)

Section 717.02 imposes on property owners a wide variety of restrictions based on sexual orientation and gender identity. There is an exemption for religious institutions that states religious institutions will not be barred “from limiting the sale, rental, or occupancy of housing accommodations that it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference in the sale, rental, or occupancy of such housing accommodations to persons of the same religion.”

Our concerns: This exception is too narrow and again may impede the constitutional rights of religious institutions in terms of free association. Religious institutions should have the right to require that people living in any accommodations owned by the religious institutions agree to abide by a code of conduct that is compatible with the mission of the religious institution. In addition, the “Mrs. Murphy” type exception contained in the Medina ordinance is less protective than the federal fair housing exception. The federal fair housing laws recognize that owners of dwellings with four or fewer units where the owners live in one of the units should be free to have broad latitude in selecting who is going to live in the same dwelling. 42 USC 3603(b)(2). In contrast, this ordinance only permits such discretion where there is a “single family dwelling” (717.2(a)(11)). The “Mrs. Murphy” exemption including in the federal legislation is a reasonable one, and should be included in this ordinance.

Solution: We think a viable solution to this concern would be to include reasonable exemptions, such as the following:

A. Revise Section 717.2(a)(11) to state: Nothing in this section shall apply to rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

B. Revise Section 717.02(b)(1) to state: Unless otherwise provided by law, nothing in this section shall bar any religious or denominational institution or organization, or any nonprofit charitable or educational organization that is operated, supervised, or controlled by or in connection with a religious organization, from (i) limiting the sale, rental, or occupancy of housing accommodations that it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference in the sale, rental, or occupancy of such housing accommodations to persons of the same religion; or (ii) limiting the sale, rental, or occupancy of housing accommodations that it owns or operates to persons whose conduct is consistent with the moral teachings espoused by such religion.

In conclusion, we strongly urge City Council to slow the process of passing this ordinance, allow for more meaningful dialogue with a wide variety of constituents, and to take seriously the concerns outlined above. We understand that Equality Ohio and other special interest groups that are lobbying the City for this legislation will likely object to these changes. However, we strongly encourage the City to pass legislation that is fair, equitable, just, and constitutional, and we believe that can be accomplished by adopting the solutions outlined above.

Thank you for your attention to this matter.

Very Truly Yours,

Brian D. Heskamp
Associate General Counsel
Diocese of Cleveland Legal Office
1404 E. 9th Street – Suite 701
Cleveland, OH 44114
Phone: 216-696-6525
Email: bheskamp@dioceseofcleveland.org

Kevin T. Burke
General Counsel
Diocese of Cleveland Legal Office
1404 East Ninth St. – Suite 701
Cleveland, OH 44114
Tel: 216-696-6525
E-mail: kburke@dioceseofcleveland.org