By Ismail Royer

If the state violates your First Amendment rights by demonstrating hostility to your religion and forcing you to do and say things you believe are morally wrong and false, should the state have the power to unilaterally deny you access to a federal court?

You’d probably say no, but that’s exactly what happened to Valerie Kloosterman, a devout Christian who was a physician assistant at her local clinic for 17 years before the State of Michigan took it over. The new government administrators imposed a “Diversity, Equity, and Inclusion” regime that required her to violate her religious beliefs by performing “gender reassignment” procedures and affirming notions like “gender fluidity.”

When Ms. Kloosterman advised her supervisors that she could not in good conscience comply with their DEI demands, they told her that “she could not take the Bible or her religious beliefs to work with her” and described her beliefs as “evil” and “equivalent to discrimination.” Represented by First Liberty Institute, Ms. Kloosterman sued her employer in federal court for violations of the First Amendment to the U.S. Constitution and Title VII of the 1964 Civil Rights Act, among other provisions.

When the government defendants tried to have the court dismiss the case, the judge issued a decisive ruling, stating that if Ms. Kloosterman’s allegations were true, the state had indeed violated her First Amendment and Title VII rights:

Defendants’ treatment of Plaintiff’s request for accommodation has some elements of hostility toward the sincere religious beliefs that motivated her objection to the training module. This hostility was manifested at the July 29, 2021 meeting through the alleged statements of Pierce, Booker, and Smith. Plaintiff alleged that when she stated that she could not refer patients for gender-reassignment surgery or refer to patients using their preferred pronouns based on her religious beliefs, Defendant Pierce became hostile, telling her that her religious beliefs did not belong in the workplace and calling her “evil” and a “liar.” Plaintiff also plausibly indicates that Pierce spoke on behalf of other Individual Defendants. Finally, Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court’s finding doomed the State of Michigan’s chances of defending itself against Ms. Kloosterman’s lawsuit. So the state did what many governments do when they’re losing in court: they deployed a procedural trick to have the case dismissed. It filed a motion with the court to have the case moved to arbitration, an out-of-court forum for dispute resolution. The court granted the motion and dismissed Ms. Kloosterman’s case, reasoning that the employment contract she signed stipulated that employment disputes would be settled through arbitration rather than in court. The result is that Ms. Kloosterman was left to pursue her claims in a forum that lacks many of the powers that federal courts have to fashion the relief necessary to redress her injuries and ensure that the state complies with the Constitution and other laws. 

Ms. Kloosterman is now appealing that ruling to the U.S. Court of Appeals for the Sixth Circuit. RFI filed a friend-of-the-court brief supporting her appeal. Drafted with the aid of Brian Goldman of Holwell, Shuster, and Goldberg, our brief explains to the court RFI’s belief 

that religious freedom necessarily encompasses the rights of individuals and institutions to exercise their sincerely-held religious beliefs in the practice of medicine. RFI defends this free exercise by shaping policy, empowering professionals, and equipping students so that their practice of medicine is, as the Hippocratic Oath requires, according to their “greatest ability and judgment” and “do[es] no harm or injustice to them.” 

RFI’s brief urges the court to hold that states should not be permitted to use procedural tricks to thwart the people’s efforts to vindicate their Constitutional and statutory rights:

The ploy engineered by Defendants-Appellees—effectively, strike out on a motion to dismiss, and only then seek to move the case to arbitration—simply toils religious discrimination plaintiffs in venue fights (years after the litigation has commenced) and frustrates their ability to get to a considered judgment, on the merits, in an Article III court, as these anti-discrimination statutes allow.

As we explain, such tactics undermine our constitutional system of government because they block the very means that the founders and Congress put in place to protect the people from arbitrary government action. Accordingly, our brief states:

In RFI’s experience, government actors habitually leverage procedural devices to frustrate plaintiffs’ attempts to vindicate their civil rights and to prevent courts from passing on the merits of their claims. Defendants-appellees apparent cynical ploy in this case—moving to compel arbitration only after losing a dispositive motion at the motion to dismiss stage—is a paradigmatic instance of this strategy at work.

We further argue that claims under the Constitution, Title VII, and similar provisions are simply incapable of being resolved through arbitration. That is because only federal courts, not arbitration forums, possess the power to fashion the broad relief necessary to effectively remedy civil rights violations. To allow states to dodge the enforcement of civil rights by federal courts by sending cases to arbitration would be tantamount to making “foxes guardians of the chickens.” 

RFI’s brief was developed in part through the efforts of RFI’s Medical Conscience Rights Initiative (MCRI), which provides educational resources on matters pertaining to the conscientious practice of medicine. MCRI and its partners work to educate state-level policy makers about the importance of protecting healthcare professionals from mandates to perform procedures that violate their conscience. 

“To this end,” our brief explains to the court, “RFI has an interest in ensuring that Ms. Kloosterman’s important federal claims, which go to the heart of protecting an individual’s right to live according to her deeply held religious convictions, are heard on the merits, in federal court—and not in arbitration.”

---

Ismail Royer is Director of Islam and Religious Freedom at RFI.