Every once in a while, a court decision provides a “teachable moment.” A recent case provides one such instance, in another clash of dogma and civil rights.
In Massachusetts, a Superior Court Judge has found a Catholic High School guilty of discrimination for withdrawing a job offer it had extended to one Matthew Barrett; the offer was withdrawn when Barrett listed his husband as his emergency contact on his employment forms, and the school became aware that he was in a same-sex marriage.
The job in question was food services manager.
The nature of the position at issue is important, because the Courts have long held that the Free Exercise clause of the First Amendment exempts religious organizations from civil rights laws inconsistent with their religious principles—that religious organizations may discriminate on the basis of their religious dogma— when the position being filled is religious in nature.
As a post to a Law Professors’ blog reported
The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school’s religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett’s position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.
Law is all about drawing lines and making distinctions. We distinguish between killing in self-defense and murder, between free speech and harassment, and—as here— between discrimination necessary to the exercise of religious liberty and discrimination that exceeds that narrow category.
Where those lines get drawn is always subject to debate and dependent upon facts and evidence.
Here, the issue appears to be straightforward: should a religious organization be entitled to hire and fire non-religious support staff-–janitors, secretaries, cooks, food services managers—on the basis of compliance with the institution’s religious doctrine?
This case is likely to go to the U.S. Supreme Court. As the Law Professors’ blog says, “stay tuned.”
On the one one hand, it is ridiculous to discriminate because of sexual orientation, on the other, shouldn’t businesses have the right decide who they want to work for them?
Andy; I fully agree with the first portion of your statement but take issue with the second part – which is the basis of the Massachusetts case, the job description and requirements plus the applicant’s qualifications should be the deciding factor in this case.
If all of the LBGT Catholics would come out of their closets and church leaders out of the dark ages (not only Catholics); we would see changes in these religious arguments.
Andy, that was the basis for race discrimination.
Mary; also the basis for maintaining women as chattel.
Some day our culture will change and this issue will be a quaint relic of the past like not eating meat on Fridays or Nuns accepting burka like Habits.
In the meantime the law will demand that change.
That phrase “religious in nature” has my brain spinning this morning. All of these exemptions for religions we read about in the news, do they get the same scrutiny? What is the “religious nature” of providing health care coverage for your employees, many who are not of your faith? How about baking a cake for a gay wedding?
There should be NO Exemptions for the bigotry of the Church Chat People. They are Bigots, pure and simple. They hide behind their “holy” books. They are no better than the Klan. At least the Klan is honest about their bigotry. The church tries to dress it up. NO EXEMPTIONS.
patmcc; let’s start pushing for no TAX exemptions; they are almost as big a drain on the economy as corporations and the 1%.
Andy, simply stated, no. Employers should not be allowed to decide who works for them, if the decision is discriminatory in nature. For far too long, “she’s just not a CorporateTech sort of person,” or “he’s qualified, but he just won’t fit in” has been an excuse to discriminate. And that’s today. In the past, it was far more blatant.
Please understand, I’m not talking about the distant past. I’m talking about in my own lifetime. Both my father and my father-in-law were denied jobs for the very simple reason they were Jewish. They were professional jobs, too. One is a doctor, the other an engineer. It happened quite openly in the 60s, and it continues to happen today, just with different excuses.
Didn’t the President recently mention that an applicant for anything, college, job etc., will be looked over just because they have a foreign sounding name! I know that contracts for employment are big in Europe to protect someone in a case like this but can be rare in the states for most positions except for executives.
What patmcc said.
After all the anti discrimatory legislation corporate counsel and HR managers have plenty of options left to discriminate. Plus corporations w the support primarily from republicans have been too successful at creating legislation that allows employers to fire any employee at will. Makes it hard to believe that there is really any protection against discrimination.
David Honig: This is not to deny that it happened in the ’60s, worse before, and I deplore what happened to your father-in-law and your father but, hey, American Jews are doing much better than average where it counts: in the professions (medicine, law, pharmacy, government, dentistry, performance arts, business, etc. They prepare themselves to earn and they deserve the prizes. Population-wise there may be fewer Jews competing so it might appear that there are fewer opportunities but it can’t all be attributed to bigotry when there are so many successes. We must step up against bigotry in all its manifestations but, once in a while I think it’s okay to comment by calling attention to the mantra of lamentation some of which might be unfounded. Let’s celebrate the successes resulting from study and hard work, family support, culture, innate talent, religion and the miracle of our Democracy.
Sheila – Great work, as usual. Many mainstream religions supported anti-discrimination legislation in the 1960’s and after, but some (perhaps many) didn’t want to apply those laws to themselves. I’m glad they supported half a loaf over none at all, but it’s time to apply those anti-discrimination laws much more broadly. My own church has women (caucasian and African-American) pastors and welcomes gay congregants and employees. We have invited Muslim and Jewish clergy to our pulpit and ecumenical activities.
None of this has not hurt our religious mission in the least. In fact, our church has had continuous growth for decades and is said to be the largest Methodist church north of the Mason-Dixon line. The New Testament commanded us to love God and each other. Jesus’ outreach was to everyone. He didn’t discriminate.
I have often blogged that the interests of religion and that of the state are plays on the old church vs. state argument, that they are oil and water and cannot successfully mix. Courts at every level are trying to mix them in bits and pieces, all with the predictable mayhem of diverse findings, appeals and man-hours lost around the water cooler as the citizenry discusses the latest holdings, right and wrong etc.
I come down on the side of the state in this continuing brouhaha. If Hobby Lobby and others are offended that their religious views are not superior to law, then something has to give, and once you start exempting one area or another from application of the law, beware. What happens if some cluck comes up with a religion whose members are offended by having to stop at stop signs (to take these arguments to their dry logical ends)? Thus if a Catholic or any other hospital will not do abortions to save the lives of mothers under any circumstances, I think we have to be pragmatists and say, fine, but other than Medicare and Medicaid, you will not get a penny in federal funding for medical equipment, construction etc. We are not talking about your religious freedom; we are talking about the freedom to live of a woman who has the misfortune of coming to your hospital to die because of YOUR beliefs, and no, the government is not discriminating against you because of your beliefs. Rather the government is cutting off some of your share of appropriations in order to do justice to the women you would dispatch based upon some religious view.
This “kill the mother” view is only one of the abhorrent travesties we taxpayers pay for when there are no real world sanctions applicable to hospitals, employers and others, and I think it is time to let these people know that while they are free to hold their religious views there are
real world consequences and a price to pay for fleshing them out in a world where those adversely affected (dead mothers, fired employees et al.) do not hold such views.
All of which brings us back to where we started, i.e., that church and state are oil and water. We have oil and water in the same social bucket, but they cannot mix. All we can do while watching this Greek tragedy unfold is to try to take the rough edges off each side’s arguments to preserve the peace. What I have above recommended will have its detractors, of course, and I invite anyone else’s views on how to solve this oil and water problem – whatever works. I finally note that priests, preachers and rabbis were not elected to make public policy, and ask what are they doing in this act with their Roe-nullifying and other eloquent entreaties to break the law. I don’t recall voting for Jerry Falwell, Pat Robertson, or any priest or rabbi for public office, and don’t personally consider religion to be a cover for these wannabe politicians who are trying to make public policy, the exclusive constitutional preserve of our legislative branches. Meanwhile, I will stop at stop signs.
Churches should be able to have different hiring requirements as soon as they lose their tax-exempt status and we truly have separation of government and religion, instead of government funded religion. As long as they take that sweet sweet government giveaway they need to abide by EEO laws.