Craig James is a former professional football player and longtime sports broadcaster who, in 2012, took time off from his broadcasting career to mount an unsuccessful bid for the United States Senate. During that campaign, according to a lawsuit James filed Monday, he opposed equal marriage rights for same-sex couples, and called upon â€śChristiansâ€ť to â€śstand upâ€ť against the advance of marriage equality. Though he briefly worked as a broadcaster for Fox Sports following his campaign, James says he was fired shortly after Fox uncovered his past anti-gay statements.
James now works for the Family Research Council, an anti-gay organization that the Southern Poverty Law Center designates as a â€śhate group.â€ť
The crux of Jamesâ€™s lawsuit are claims that Fox â€śdiscriminated against James because of his religionin violation of the Texas Commission on Human Rights Act.â€ť Yet his complaint (which, admittedly, is only available to the public in a redacted form) cites no actual evidence that Foxâ€™s decision to fire James was motivated by the fact that James identifies as a Christian. Nor does it claim that Fox Sports treated other employees who held similar anti-gay views differently because those employees are not Christian. Rather, James says that â€śFox Sports informed James that his short off-the-cuff statement about his beliefs regarding marriage . . . was the sole reason Fox Sports terminated him,â€ť and he does not appear to disagree with Foxâ€™s alleged claim that they were motivated solely by their own opposition to Jamesâ€™s anti-gay statements.
Instead, James attempts a two-bumper bank shot to convert this anti-anti-gay firing into a kind of religious discrimination. James, his lawsuit emphasizes, holds anti-gay beliefs that are motivated byhis religious beliefs, and this, he claims, is enough to protect his job even if Fox would be allowed to fire an employee who made similar statements that were driven by a secular belief.
In other contexts, the Supreme Court has rejected attempts to use cries of religious discrimination to excuse acts of bigotry. Four years after Congress banned whites-only restaurants, for example, the owner of a South Carolina barbecue chain put up a sign protesting that â€ś[t]he law makes us serve n***ers, but any money we get from them goes to the Ku Klux Klan.â€ť He also claimed that the Civil Rights Act of 1964 â€ścontravenes the will of God,â€ť and that he should be exempted from having to follow it because of his religious beliefs. The Supreme Court disagreed, in Newman v. Piggie Park Enterprises, labeling the restaurant ownerâ€™s claim â€śpatently frivolous.â€ť
Jamesâ€™s case, however, was filed in Texas court, where the conservative Texas Supreme Court may see things differently than the justices of another era. It also arises under a different area of the law than Piggie Park. James sued under the Texas Commission on Human Rights Act, which, among other things, prohibits discrimination â€śbecause of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicantwithout undue hardship to the conduct of the employerâ€™s business.â€ť
There is surprisingly little Texas case law interpreting this particular provision. Nevertheless, Texas civil rights law explicitly tracks â€śthe policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,â€ť so federal court decisions examining similar cases should inform the Texas judges confronted by Jamesâ€™s case. At least one federal appeals court case, however, suggests that employers are not required to accommodate the anti-gay views of their employees, even if those views are motivated by religion.
In Peterson v. Hewlett-Packard Co., the United States Court of Appeals for the Ninth Circuit considered an employee who posted Bible verses that, among other things, said that men who have sex with men should be â€śput to death.â€ť Admittedly, this is a more egregious case than theJames case, as James was not fired for saying that gay or bisexual men should be executed (when he was later asked about executing gay people, he responded tepidly). Nevertheless, the court inPeterson offered a sweeping dismissal of the idea that an employer is required to accommodate statements that could cause lesbian, gay or bisexual employees to feel unwelcome. It is an undue hardship, the court explained, to inhibit an employerâ€™s â€śefforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success.â€ť
James was an unusually visible employee who made his anti-gay statements in an unusually public forum. And James admits that Fox Sports was motivated by similar fears to the ones that concerned the employer in Peterson. He quotes a Fox spokesperson, who reportedly said that James was fired because â€ś[w]e just asked ourselves how Craigâ€™s statements would play in our human resources departmentâ€ť and concluded that â€ś[h]e couldnâ€™t say those things here.â€ť
Nevertheless, the Texas judicial system is unusually conservative, so there is no guarantee that it will not give people like James a special right to make offensive statements about LGBT people with impunity.
This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.
Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Centerâ€™s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book isÂ Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.