ST. LOUIS, Mo. — A federal judge nominated to the bench by then-President George H.W. Bush has dismissed a lawsuit against a Christian retirement village that denied an application from two lesbian women due to its longstanding Bible-based cohabitation policy that only allows married men and women or siblings to share a dwelling.
Attorneys for the women had argued that Friendship Village in St. Louis had engaged in unlawful sex discrimination—that is, denying the request because the two were both female—but U.S. District Judge Jean Hamilton found that the situation should rather be classified as “sexual orientation” discrimination and not “sex” discrimination.
Since “sexual orientation” isn’t a protected class under Title VII of the federal Civil Rights Act of 1964, according to precedent from the Eighth Circuit Court of Appeals, nor the Fair Housing Act, the lawsuit could not stand.
“At no time do plaintiffs assert that had they been men involved in a same-sex relationship or marriage, they would have been admitted as residents in Friendship Village,” she wrote, explaining why the sex discrimination argument is not valid. “Under these circumstances, the court finds the claims boil down to those of discrimination based on sexual orientation rather than sex alone.”
As previously reported, according to the mission statement posted on Friendship Village’s website, the faith-based non-profit organization is “[g]uided by Biblical values,” and aims to “continually serve the senior community with quality offerings that promote lifelong well-being.” It states that it seeks to provide senior services that support “mind, body, and spirit.”
Mary Walsh and Bev Nance, who “married” each other in 2009 and have no religious affiliation, learned of the community through friends who live at Friendship Village and encouraged them to move there also. They said that they were drawn to the facility because of its social activities and its Life Care program.
The two subsequently visited Friendship Village and were provided a tour, along with informational brochures.
In July 2016, Walsh and Nance decided to move in to the retirement village. They met again with Residence Director Carmen Fronczak, signing a wait list agreement and submitting a down payment for a unit that Fronczak told them would be available shortly.
Walsh and Nance also contacted a realtor that same day to begin the process of selling their home.
Three days later, they received a call from Fronczak, who inquired about what relation Walsh was to Nance. Walsh advised that the two were “married” and that they had been together for 37 years.
Fronczak called back two days later to advise that Friendship Village could not accept their paperwork because of its policies, which adhere to the belief that marriage is between a man and a woman.
Lesbianism was an afterthought to both sides.
“It had not even occurred to the couple during their visits to Friendship Village to ask whether same-sex couples could live there, because Ms. Fronczak had been actively encouraging them to move there,” the lawsuit filed on behalf of the women stated.
“Ms. Walsh and Ms. Nance had not taken any steps to hide their relationship when they were touring Friendship Village and meeting with Ms. Fronczak, and the wait list agreement they signed showed that they lived at the same address.”
Walsh and Nance soon also received a letter from Corporate Operations Director Michael Heselbarth, who likewise advised that the women’s request to share a unit violated the retirement community’s longstanding cohabitation policy.
The policy states that Friendship Village “will permit the cohabitation of residents within a single unit only if those residents, while residing in said unit, are related as spouses by marriage, as parent and child or as siblings,” and specifically notes that “[t]he term ‘marriage’ as used in this policy means the union of one man and one woman, as marriage is understood in the Bible.”
The policy also advises that the requirement is consistent with the entity’s “longstanding practice of operating its facilities in accordance with biblical principles and sincerely-held religious standards.”
The women consequently filed a complaint with the federal Department of Housing and Urban Development (HUD), which conducted an investigation for a time until Walsh and Nance decided to file a lawsuit in federal court. The American Civil Liberties Union (ACLU) of Missouri and the National Center for Lesbian Rights represented the women in court.
“By refusing housing to Ms. Nance and Ms. Walsh and by maintaining the written cohabitation policy, defendants, directly and through their representatives and agents, unlawfully discriminated and continue to discriminate against Ms. Walsh and Ms. Nance on the basis of sex,” the suit asserted.
“[E]ach Plaintiff was denied housing at Friendship Village because of her own sex (female) and because of the sex of her spouse (female), because if either Plaintiff had been a man married to a woman, they would not have been denied housing,” it stated.
“Furthermore, Defendants denied Plaintiffs housing because they do not conform to traditional sex stereotypes, including that a married woman should be in a different-sex relationship; that a married woman’s spouse should be a man; and that women should be attracted to and form relationships with men, not women.”
However, Judge Hamilton noted in her ruling that so-called “[s]exual orientation … is not explicitly a protected characteristic under the FHA (Fair Housing Act)” and “[t]he Eighth Circuit has squarely held that ‘Title VII does not prohibit discrimination against homosexuals.'”
“The court recognizes that several federal courts have held otherwise in recent opinions, concluding that discrimination on the basis of sexual orientation is a form of sex discrimination,” she wrote. “This court is bound by the law of the Eighth Circuit, however.”
Arlene Zarembka, an attorney for the women, disagreed with the outcome.
“Friendship Village’s denial of housing to Mary and Bev because they are two women, and not a man and a woman, is discrimination ‘because of sex’ in the most literal sense,” she told St. Louis Public Radio. “That Mary and Bev are lesbians doesn’t change this analysis.”
As previously reported, the Bible teaches that all men are in the same predicament: All are born with the Adamic sin nature and are “by nature the children of wrath” (Ephesians 2:3), having various inherent inclinations that are contrary to the law of God and being utterly incapable of changing themselves. It is why Jesus outlined in John 3:5-7 that men must be regenerated by the second birth, or they cannot see the kingdom of Heaven.
“Jesus answered and said unto him, ‘Verily, verily, I say unto thee, except a man be born again, he cannot see the kingdom of God.’ Nicodemus saith unto him, ‘How can a man be born when he is old? Can he enter the second time into his mother’s womb, and be born?’ Jesus answered, ‘Verily, verily, I say unto thee, except a man be born of water and of the Spirit, he cannot enter into the kingdom of God. That which is born of the flesh is flesh; and that which is born of the Spirit is spirit. Marvel not that I said unto thee, ‘Ye must be born again.’”
The late preacher J.C. Ryle once taught, “I do say that in the matter of breaking God’s commandments, everyone that is born again is quite a new man. He no longer takes a light and cool and easy view of sin; he no longer judges of it with the world’s judgment; he no longer thinks a little swearing—or a little Sabbath-breaking—or a little fornication—or a little drinking—or a little covetousness, small and trifling matters—but he looks on every sort of sin against God or man as exceeding abominable and damnable in the Lord’s sight, and, as far as in him lies, he hates it and abhors it, and desires to be rid of it root and branch, with his whole heart and mind and soul and strength.”