The United States Court of Appeals for the Fifth Circuit Tuesday held oral arguments in Braidwood Management v. EEOC. The case is a class-action lawsuit filed by a for-profit wellness business and a church. The plaintiffs are seeking declaratory judgment that the First Amendment and the Religious Freedom Restoration Act (RFRA) allow employment policies that prohibit “homosexual or transgender behavior” for religious or non-religious reasons, even though the Supreme Court has ruled Title VII of the Civil Rights Act of 1964 protects LGBTQ employees.

The Fifth Circuit is hearing the case on appeal from a United States District Court of Northern Texas decision penned by Judge Reed O’Connor. O’Connor, appointed by President George W. Bush in 2007, gained national notoriety for his 2018 ruling finding the Affordable Care Act unconstitutional for violating the nondelegation doctrine, which was reversed on appeal. Attorneys representing both sides of the legal conflict in the 2012 and 2015 Supreme Court hearings on the Affordable Care Act decried the ruling as “lawless” in a New York Times Opinion article.

In oral arguments, Ashley Cheung Honold of the Department of Justice, arguing on behalf of the EEOC, claimed “The District Court issued a series of categorical, abstract rulings, untethered to any particular facts and in the absence of a concrete case or controversy.” Honold went on to declare O’Connor’s opinion as a “violation of Article III principles” and argued the opinion is unable to square with Supreme Court precedent stressing the need for individualized analysis on the issue.

John Mitchell, counsel for Braidwood Management, deflected the issue of justifiability raised by the government before arguing the merits of the case. Mitchell argued that the plaintiffs faced two “unpalatable options” of violating their religious beliefs by allowing homosexual or transgender behavior or facing the risk of immediate penalty by the government. Under questioning of the court, Mitchell admitted that the plaintiffs’ “[religious] conduct has not been chilled in a sense that they have changed their behavior,” but contends that a chilling effect occurred through the threat of prosecution.