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Branding According to Conscience

Washington, D.C. — August 23, 2019.  Today, the Center for Religious Expression (CRE) filed an amicus curiae brief with the United States Supreme Court asking the high court to protect the constitutional freedom of employers to control their branding and public image.

Thomas Rost is a Christian who owns and operates R.G. & G.R. Harris Funeral Homes, a family-owned business that has been serving members of the community for generations.  Rost knows that the grieving families he serves are experiencing significant hardship, and he strives to maintain an atmosphere that is professional, compassionate, and not distracting.  To achieve this end, Rost, like many other employers, maintains a dress code that has one set of requirements for males and another for females, in recognition of their biological differences.

But, in 2013, one of Rost’s male funeral directors suddenly announced that he was in fact a she, and would begin dressing as a female while on the job.  Because the funeral director's position involved substantial interaction with those the funeral home serves, Rost knew that allowing the employee to dress as a female would cause distraction to grieving families and send a message about sex that is contrary to his Christian faith.  Because the employee refused to comply with the dress code for male, Rost let the employee go.

The employee then filed a lawsuit against the funeral home, claiming that refusing to allow a biological male to dress as a female is illegal discrimination based on sex.  Unfortunately, the Sixth Circuit Court of Appeals agreed, holding the lawsuit liable for significant money damages.  Left with no alternative, Rost petitioned to the Supreme Court, pointing out that federal discrimination law does not consider sex-distinctive dress codes to be discrimination based on sex.

Following the Supreme Court’s acceptance of the case, CRE filed an amicus brief in support of the funeral home, pointing out the significant Free Speech principles are implicated by this case.  It is well-established that the way employers brand themselves receives First Amendment protection – from catchy slogans and logos to philanthropic marketing campaigns.  And, dress codes for public-facing employees likewise send constitutionally protected messages about the employer’s professionalism, cleanliness, and more.  Should the Supreme Court side with the employee, it would force employers across the nation – under threat of significant financial penalties – to send a message about sex, gender, and the character of the business that conflicts with their conscience.  The government cannot compel such speech.

Center for Religious Expression is a servant-oriented, non-profit 501(c)(3) Christian legal organization dedicated to the glory of God and the religious freedom of His people. For more information, visit http://www.crelaw.org.

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