Jewish man denied franchise by Christian auto repair company takes fight to Fifth Circuit

(CN) — A Jewish man who was refused a franchise by a Christian auto repair company asked the Fifth Circuit Thursday to adopt a “novel” interpretation of a 19th-century civil rights law by finding it prohibits discrimination against members of the Jewish faith in contract decisions.

The law at issue is Section 1981, a federal civil rights law passed in 1866 that states that all persons in the U.S. have the same right to enter into and enforce contracts “as is enjoyed by white citizens.” Courts have long interpreted this law as prohibiting discrimination in contract decisions based on race or ethnicity, but an attorney for Evan Domanic — an ethnic and religious Jew denied a franchise by Christian Brothers Automotive Corporation because he isn’t Christian — urged a three-judge appeals panel to take a different approach.

“I have no meaningful or useful precedent to cite for you here today,” acknowledged Domanic’s attorney, Eric Grogan. “I don’t think anybody’s made this argument under Section 1981 before, and I really don’t understand why because the term white is so subjective, and you have to do a historical analysis.”

Grogan conceded that Christian Brothers was not aware that his client was ethnically Jewish when it refused to grant him a franchise and that it did so based on his religion. However, he argued that an analysis of Section 1981 — which courts have said applies to groups who would have been considered nonwhite in the 1860s when the law was adopted — must go beyond skin color and look at things like religion. Grogan said at the time the law was passed, “all people with white or pale skin did not have the same opportunities and were not treated similarly under federal law.”

“In this time in the 1860s, you had Irish people toiling for whiskey and pennies, building the transcontinental railroad right next to Chinese immigrants, and that was not the same for English Protestants,” Grogan said.

Grogan also argued that Jewish faith and Jewish ethnicity are intertwined.

“Most Jewish people that I know, most Jewish people that I interact with, most Jewish clients that I’ve had, present and past, do not see the distinction between an ethnic and a religious Jew,” he said.

U.S. Circuit Judge Andrew Oldham, a Donald Trump appointee, asked Grogan about Christian Brothers’ argument that applying Section 1981 in this case would violate the “ministerial exception,” a legal doctrine that bars the application of anti-discrimination laws to employment relationships between religious institutions and employees with ministerial roles. Grogan argued the ministerial exception only applies to jobs that “require vital religious duties,” which he said is not the case here.

But Christian Brothers’ attorney, Jeffrey Oldham, told the panel Domanic’s argument that Section 1981 prohibits Christian Brothers from requiring that all franchisees be Christian “threatens the heart of who Christian Brothers is as a company.”

“For over 40 years, its identity and its mission have publicly centered on the Christian faith and on spreading the message of Jesus Christ to its guests and its communities,” said Jeffrey Oldham, a partner at Jackson Walker. “And it’s fundamental to that identity and to that mission and the culture that it has that it have the right to have only fellow Christian believers as the owners of its franchise stores in each of its locations.”

Jeffrey Oldham said Christian Brothers has granted franchises to people of various races and ethnicities, including at least two ethnically Jewish people who are practicing Christians.

“Domanic’s claim that religious-based decisions now count as race discrimination, perhaps only for Jewish people, is contrary to the law, and it would transform Section 1981 into a de facto ban on religious exercise, which would entirely undermine the ability for companies like Christian Brothers and other companies like it to maintain a distinct faith-based culture, identity, brand and mission,” Jeffrey Oldham said.

U.S. Circuit Judges Kyle Duncan and Cory Wilson, also Trump appointees, joined Andrew Oldham on the panel. The judges took the case under submission and did not indicate when they would rule.