When Discrimination is OK

Over the past week, a Massachusetts court case, Barrett v. Fontbonne, has generated quite a bit of interest and justifiably so. Put priefly, Fontbonne is a Catholic school that had hired Mr. Matthew Barret to be its “Food Service Director” but withdrew the offer after learning Barrett was in a same-sex marriage (he named his husband as his emergency contact). Barrett sued, citing employment discrimination, and won the case (you can read the opinion with more detailed facts here). This case is genuinely fascinating and challenging, and Fontbonne hopefully appeals (as I believe they should win the case). I would argue all Americans should hope this case reaches the Supreme Court as there are competing rights (nondiscrimination and religion) with strong arguments that deserve to be heard and ruled upon by our leading constitutional thinkers. Those who don’t feel some pull towards each parties’ position, either legally or emotionally, are probably either hopelessly partisan or simplistic in their analysis.

I also would make a clear distinction between what Fontbonne ought to do and what it is legally compelled to do. As a matter of policy, I think Fontbonne should not have rescinded its offer to Barrett due to his sexual orientation. I struggle to see how his personal life would have impacted his ability to do his job, and hiring someone does not have to be an endorsement of everything they do in their personal life. The school’s distinction that its decision was not based on Barrett’s orienation but on the fact he was in a same-sex marriage is dubious at best. The two facts are inextricably linked, and this argument suggests that by extending him a right (marriage) the government leaves him more at risk in other areas (employment). Barrett was not hired because he was gay; Fontbonne was wrong morally, theologically (again just my opinion as a non-expert, but I believe Jesus surrounded himself with many sinners and outcasts), and certainly from a public relations perspective (likely not the best way to appeal to younger Americans to grow the faith). However, policy errors by an institution are not necessarily illegal, which is the case here. If stupidity were a crime, yours truly would be writing from behind steel bars.

Religious freedom, enshrined in the first amendment, is a fundamental right in this country, a foundational principle. At the same time, not being discriminated against is also critical. In cases like this, these rights need to be balanced, and there is ample legal precedent on which to rely. The Supreme Court buckets groups into three classes when reviewing government laws and discrimination, applying different standards:

  1. Suspect class: these include race, religion, and national origin. Any law impacting this class must pass strict scrutiny (the highest standard), meaning it serves a compelling government interest, is narrowly tailored, and is the least restrictive means to achieve that interest. Few laws can survive strict scrutiny. (Ironically, one of the court’s worst decisions, Korematsu, was one in which the government met this burden).
  2. Quasi-suspect class: Gender is the primary example. Any law impacting this class must pass intermediate scrutiny (the middle standard), which means it serves an important government interest.
  3. Other classes: When not dealing with a minority of some sort, all the government needs to show is a rational basis for its law (the easiest standard). Here a law must be rationally related to a legitimate government interest.

Why is this legal tangent relevant you ask? Because, the classes in the case impact the scrutiny applied, thereby pushing the scales in a certain direction. For instance, a law that infringes upon the rights of the “other class” to help a suspect class likely survives as the level of scrutiny is lower and vice versa. The Supreme Court has been silent as to what class homosexuals belong, though Windsor (overturning the Defense of Marriage Act) suggests the court sees them as a quasi-suspect class. Frankly whatever side of this case you are on, it would be useful for the Court to hear it (or a similar one) just to get it on the record as to what level of scrutiny it is applying so that all courts around the country are ruling consistently. For twenty years, the Court has gone out of its way to avoid this issue explicitly, but it should make clear what it has implied, that homosexuals are a quasi-suspect class.

What does this mean? Any law seen as discriminating against them must serve an important government interest. So an exception to Massachusetts’ employment discrimination law permitting discrimination must be important. Protecting the freedom of religion would seem to meet this burden. Now, religion also has an interesting legal history. Sherbert v. Verner, a landmark case, determined that in matters of religion, the government must have a compelling interest (ie strict scrutiny). Under an Antonin Scalia opinion in Employment Division v. Smith, the standard seemed to shift demonstrably lower (according to some) to “general applicability” whereby laws that were religiously neutral and generally applicable (ie belonging to a religion opposing taxes does not allow one to avoid generally applicable income taxes) can survive. In response, congress passed, almost unanimously, the Religious Freedom Restoration Act (RFRA) to force the court to use strict scrutiny in religious matters. While the court later held the RFRA constitutional in federal matters, I still have constitutional reservations and generally oppose RFRA at both the Federal and State levels (legislatures shouldn’t tell courts how to rule in my opinion).

Using strict scrutiny, the question is whether the government has a compelling interest to force religious institutions to hire gay people? Remember on the flip side, Fontbonne only needs to show the religious freedom is an “important” interest. The scales seem decidedly tipped in Fontbonne’s favor. Now, the court is not forced to use this standard in state cases, yet using “general applicability” doesn’t change the outcome (the difference between this standard and the Sherbert test is less than Congress’s reaction would suggest). A religious objector needs to show a hybrid right, ie something beyond freedom of religion. Fontbonne has a second right here: association. A religious organization has latitude in who to include in its private organization, certainly more so than a non-religious, public entity. A religious institution can choose to associate only with members of its faith, otherwise clergy selection processes would be illegal.

Now, the Massachusetts court dismissed this argument, noting that by employing and accepting some non-Catholics, it loses this right. That argument is lacking, though I understand the rationale. No one would argue for instance (I hope) on a religious organization’s ability to discriminate in selecting members of its clergy (ie Catholics can require non-married Catholics be Priests and reject others out of hand). However, a food service director is not a clergyman, and per the ruling, once the school decides to employ/enroll non-Catholics, it loses protections. Essentially, the court argues religious organizations cannot be hypocrites. It can’t one day hire an atheist, the next day, fire a Jew. The rationale here is somewhat compelling.

However, now we have secular courts that have no professed proficiency in theology ruling on when religious institutions are employing some people who lead lives counter to their faith. This view also disproportionally impacts smaller religions, who need more protecting. A small faith (think a Jewish school in Montana) would likely have a hard time employing a full faculty within its faith. By virtue of its small size requiring it to hire some outsiders, does it lose protections? That doesn’t seem equitable. If anything, small religions are more at risk of marginalization and need more protection. This ruling undermines that and does the reverse.

The Court has dealt with this in a case where religious institutions lost, Lemon v. Kurtzman, which determined laws that result in “excessive government entanglement” with religious institutions are unconstitutional. In this case, having a law that requires courts to match compare employee rosters to religious tenets to see whether an institution has forfeited religious and association protections is excessive entanglement. Our courts should not be in the business of determining whether a religious institution is hypocritical. Under either standard, Fontbonne should win.

What is most interesting is if the Court were to make homosexuals a suspect class (very unlikely), putting both sides on the same playing field. I would again side with the religious institution as a religious carve-out would seem to merit “narrowly tailored” requirement while forcing a religious institution to hire anyone doesn’t seem to meet that as evidenced by the entanglement issue.

The Fontbonne case deserves the attention it had received, if not more, though the legal questions are complex. While Fontbonne’s actuals are puzzling, the government legally cannot and should not force religious institutions to hire people. Yes, a food service director is in a greyer area than a clergy member, but do we want courts determining where the black and white stops and where the grey begins? That is a recipe of ungodly bureaucracy, entangling government in religion’s business.

We are better served maintaining separation, giving a religious institution the ability to employ whomever it wants. Sometimes, the result seems awful, but government mandates could have a chilling impact on religious freedoms and risks further infringement down the road. What happened to Mr. Barrett was awful; that doesn’t make it illegal. We need to reaffirm Lemon; this country is best served when government does not entangle itself with religious institutions, either to their benefit or detriment.

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