A recurring question since marriage equality became legal has been whether religious institutions can freely discriminate in their employment practices against married gay couples, relying on statutory religious exemptions from anti-discrimination laws or constitutional claims. In a case involving a food service worker who lost a job with a Catholic girls school, a Massachusetts trial judge ruled on December 16 that the answer is “no,” at least in a case involving a job that plays no educational role at the school.
Massachusetts Superior Court Justice Douglas H. Wilkins had to confront serious interpretive problems under the state anti-discrimination law before even getting to the constitutional issues in the case of Matthew Barrett v. Fontbonne Academy, NOCV2014-751.
Barrett, who has over twenty years of experience in the food services industry, applied in June 2013 to be the Food Services Director at Fontbonne, an independently-incorporated Catholic college-preparatory school for girls. According to Judge Wilkins’ opinion, Fontbonne is “a sponsored ministry of the Congregation of the Sisters of Saint Joseph of Boston.” During the hiring process, the Head of School, Mary Ellen Barnes, told Barrett that every employee is regarded as a “minister of the mission” and asked him whether he could “buy into” the expectation that he would “model Catholic teaching and values.” He responded affirmatively and was offered the job, which he accepted. Then he filled out a new employee hire form, listing his “emergency contact” as “Ed Suplee,” who he indicated was his husband. Two days later, he received an email informing him there was a problem and asking him to return to the school. At a meeting with school officials the next day, Barnes told him that he would not be hired because “he was a spouse in a same-sex marriage, which was inconsistent with the teachings of the Catholic Church.”
Justice Wilkins easily rejected Fontbonne’s argument that it was not engaging in sex or sexual orientation discrimination, but rather just refusing to compromise its religious principles about same-sex marriage. As have other courts confronted with similar arguments, Wilkins rejected any status/conduct distinction, finding that the school’s withdrawal of the job offer involved both sexual orientation discrimination and sex discrimination. (Sex discrimination because if Barrett was female and married a man, Fontbonne would have no objection to the marriage.)
Justice Wilkins then confronted a more serious interpretive problem due to facially conflicting religious exemption provisions in the statute. A broader exemption provision excuses a religious organization from complying with the employment discrimination ban where its actions “are calculated by such organization to promote the religious principles for which it is established or maintained.” This provision was adopted at the time the law was amended to add “sexual orientation” in 1989. However, this exemption exists against the background of an older religious exemption provision, which accords the exemption only to an organization “which limits membership, enrollment, admission, or participation to members of that religion.” The record before Wilkins shows that Fontbonne does not so limit its employment policies, with narrow exceptions that do not apply to its food services operation. Indeed, Fontbonne has a formal non-discrimination policy that explicitly includes “sexual orientation,” and thus their argument in this case, which Wilkins rejected, that refusing to employ a person married to someone of the same sex is not “sexual orientation discrimination.”
Wilkins found that “the best way to harmonize and preserve, as much as possible, the literal meanings” of both exemption provisions “is to read an implicit limitation into the latter provision, such that the phrase ‘any organization’ refers, at least in the employment context, to organizations that meet the limited membership clause.” Although the Massachusetts courts have not previously addressed this tension directly at the appellate level — surprisingly, since the broader exemption has been on the books for a quarter century — Wilkins found some support from statements in prior cases and various principles of statutory construction, not least the tendency to construed anti-discrimination laws broadly in support of the important public policy against discrimination. “No rule of construction provides certainty here,” he acknowledged. “They do, however, nearly all point in favor of the plaintiff’s approach.”
Having resolved that Fontbonne did not enjoy a statutory exemption, Wilkins turned to the school’s constitutional arguments.
The first, based heavily on the U.S. Supreme Court’s 2000 ruling, Boy Scouts of America v. Dale, upholding the Boy Scouts’ anti-gay employment policies, arises under the 1st Amendment right of expressive association. The Court held that the Boy Scouts were not obliged under New Jersey’s Law Against Discrimination to retain James Dale as an assistant scoutmaster after it came to their attention that he was co-president of the gay students organization at Rutgers University. In a narrow 5-4 ruling, the Court, painting Dale as a “gay rights activist,” said that requiring the Scouts to associate with him as a volunteer leader would be forcing them to broadcast a gay rights message that they deemed inconsistent with their expressive function. Wilkins easily distinguished the situation of Barrett, who is not an activist and merely listed his husband as an “emergency contact” on a personnel form. “He was not denied employment for any advocacy of same-sex marriage or gay rights,” wrote Wilkins. “Nothing on that form suggested that Barrett claimed his marriage to have sacramental or other religious significance or that it was anything but a civil marriage relationship. Fontbonne presents no evidence of advocacy by Barrett.” By contrast, Dale’s gay rights advocacy came to light when a newspaper reported on a public appearance he made in his Rutgers student organization role, advocating for gay rights.
Furthermore, pointed out Wilkins, Dale’s “role as a Boy Scout leader included instilling values in the scouts themselves. Barrett’s role would have been as Director of Food Services. That job does not include instruction, let alone any leadership role or responsibility for presenting the gospel values and teaching of the Catholic Church at Fontbonne.” Wilkins rejected the school’s argument that was entitled to require all employees, whatever their job duties, to “model Catholic values.” Wilkins asserted that to hold otherwise would permit “an employer to grant itself constitutional protection from anti-discrimination laws simply by saying the right words.”
He found little risk that employment of Barrett would mislead students and the public into thinking that Fontbonne, as a Catholic institution, somehow approved of or endorsed same-sex marriage, in light of “widespread public awareness of the civil laws allowing same-sex marriage and prohibiting employment discrimination, coupled with Fontbonne’s ability to explain its position without interference in the form of advocacy from Barrett.” He found that the state’s compelling interest in combatting employment discrimination against “historically disadvantaged groups” weighed heavily against Fontbonne’s position.
Wilkins responded similarly to Fontbonne’s attempt to invoke the 1st Amendment Free Exercise Clause through the “ministerial exception” that the Supreme Court has ruled must be incorporated in all anti-discrimination laws. The Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, recognizing this exemption involved a school employee who was formally titled as a minister by the Church and whose job duties involved “important religious functions.” The Supreme Court said, “The fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.” The ministerial exception, thus, is intended to protect “the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”
“Indisputably,” wrote Wilkins, “none of these considerations apply to Barrett’s position as Director of Food Services. He has no duties as an administrator or teacher of religious matters.” The school’s attempt to base this exemption on its statement that “each of its employees is a ‘minister of the mission'” goes beyond what the Supreme Court authorized in 2012. “Indeed,” wrote Justice Wilkins, “to apply the ‘ministerial’ exception here would allow all religious schools to exempt all of their employees from employment discrimination laws simply by calling their employees ministers. If that were the rule,” he continued, much of the discussion in the Hosanna-Tabor ruling “would have been unnecessary.”
After granting Barrett’s motion for summary judgment and denying Fontbonne’s motion, Wilkins directed the parties to “address whether this case needs to be scheduled for a trial on damages,” which was an open invitation for them to negotiate a settlement on that issue.
Wilkins ruled on questions of first impression on a hotly contested issue, so it seems likely that Fontbonne will seek to appeal, which would likely put off any settlement or trial on damages until the appellate process runs its course. Given the nature of the case, an appeal would probably bypass the intermediate appeals court and go directly to the state’s Supreme Judicial Court. Fontbonne would find no lack of free assistance from litigation groups that are dedicated to combating gay rights laws and expanding religious freedom, such as Liberty Counsel or Alliance Defending Freedom, which have appeared as pro bono counsel in numerous cases around the country.
Barrett’s ability to defend his victory also relies on free counsel from Gay and Lesbian Advocates and Defenders (GLAD), which is representing him. Attorneys working on the case include Bennett Klein, Gary Buseck (former Executive Director) and John Ward (the founder of the organization decades ago who continues to provide volunteer assistance on cases). GLAD’s track record in the courts has been stellar, including winning marriage equality in Massachusetts in 2003 and successfully challenging the Defense of Marriage Act in the federal district court and the 1st Circuit Courts of Appeals.Tags: Barrett v. Fontbonne Academy, Catholic schools discrimination against same-sex married couples, Justice Douglas H. Wilkins, marriage equality, Massachusetts Superior Court, Michael Barrett, same-sex marriage, sexual orientation discrimination