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Posts Tagged ‘Michael Barrett’

Catholic Girls School May Not Discriminate Against Gay Married Employee

Posted on: December 17th, 2015 by Art Leonard No Comments

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.

Ned Rorem 90th Birthday Celebration at NY Festival of Song

Posted on: November 6th, 2013 by Art Leonard No Comments

Last night the New York Festival of Song saluted Ned Rorem on his 90th birthday year with a special concert at Merkin Hall.  I was delighted to be there for the festivities.  NYFOS co-director Steven Blier provided informative notes in the program describing the long relationship between Rorem and NYFOS, which has presented special birthday celebration concerts for him several times over the past few decades.  All deserved, of course, as Rorem is one of our musical treasures.  The maestro himself was present to enjoy the program and acknowledge the plaudits of the audience at the end.

Two excellent singers were recruited for the occasion: Mezzo-soprano Kate Lindsey and tenor Andrew Garland.  Blier and his co-director, Michael Barrett, were at the keyboards, dividing up the collaborative duties and joining together on the two-piano pieces.  Performances of Rorem songs were interspersed with readings from his diaries, interviews, and articles, and there were interludes of songs by other composers who bore some relationship to Rorem as influences, mentors, friends and rivals.  By sheer coincidence, it seems, all the composers on the program were, to some degree at least, gay, which turned it into a very gay-friendly evening indeed.

An event like this prompts the question whether any enterprising record label will take up the venture of a complete recorded edition of Rorem’s songs, since he’s written hundreds of them, many not readily available on current releases.  (It would help if all the historical releases from LP days could be digitized and made available….)

Now that Carter is gone, Rorem becomes in a sense the dean of American composers, and it would also be great if instrumentalists and orchestras would take up his work as well.  As a youngster first coming to grips with “classical” music, I was not partial to vocal music and so didn’t really come into contact with his work until I picked up an LP that included his 3rd Symphony (Turnabout).  I fell in love with the piece, and that led me to his songs and helped me to develop interest in the American art song repertory.  Rorem’s instrumental music is always conceived vocally, even if singers are not involved, since that is the modality for his musical thought.

The concert was being recorded, and I hope that it achieves a release to the public soon!  I want to hear it again!!

The Singers and the Songs – NY Festival of Song: Kevin Puts & Friends – Meglioranza/Uchida New Winterreise Recording

Posted on: February 7th, 2013 by Art Leonard No Comments

Herewith some observations about two encounters with art song in recent days: a wonderful concert of new songs presented by the New York Festival of Song at the Jerome Robbins Theater at the Baryshnikov Arts Center, and a new recording of Franz Schubert’s song cycle, Winterreise, by baritone Tom Meglioranza and pianist Reiko Uchida.

The New York Festival of Song, which presents an extensive series of song recitals at Merkin Concert Hall (north of Lincoln Center), has launched a new series called NYFOS Next, putting the spotlight on contemporary composers who are emerging on the classical concert scene.  The premise is to engage a composer to “curate” a concert by selecting the songwriters and, in some cases, commissioning them to produce new songs for the occasion, and then to introduce each number from the stage.  Their initial program, presented on Tuesday, February 5, employed Kevin Puts as the composer-curator, at the intimate Jerome Robbins Theater in the Baryshnikov Center.  Mr. Puts was awarded the Pulitzer Prize in Music for 2012 for his opera, “Silent Night,” which received its first performances at the Minnesota Opera, and has some forthcoming performances scheduled, most imminently in Philadelphia this coming weekend.  In addition to ending the program with three arias from “Silent Night” with piano accompaniment, Mr. Puts wrote a new song to open the program.  Other composers represented on the recital included Christopher Theofanidis, Ricky Ian Gordon, Christopher Cerrone, Tarik O’Regan, Andrew Haile Austin, David Lang, Harold Meltzer, and Derek Bermel.  Many of the composers were present and made comments about their compositions, and Mr. Gordon accompanied his song as well.  Mr. Puts, who is also an accomplished pianist, accompanied in his compositions. Michael Barrett, Associate Artistic Director of New York Festival of Song, accompanied the other songs, and violinist Charles Yang participated in two of the songs (singing in the ensemble for one of the).

At the outset, Mr. Puts confessed that he only recently became involved in song with the commission to write his opera, and he required considerable assistance from Mr. Barrett in identifying appropriate composers to participate in this program.  Many of the songs that were presented were written in response to a commission from Opera America to celebrate the opening of their new National Opera Center, just a few blocks away from the Baryshnikov Center, and they are available on a compact disc recording released by Opera America. 

Three singers (plus, as noted above, briefly Mr. Yang), participated in the program: soprano Stacey Tappan, Mezzo-Soprano Krista River, and baritone Jesse Blumberg.  Readers of this blog will know that I am a big fan of Mr. Blumberg, and may assume that was my main reason for attending the concert.  But I’m also a big fan of Mr. Puts, and his association with the program was another big draw for me.  I was present at the New York Philharmonic premiere of a piece he wrote for them several years ago, and I was so impressed that I began searching for recordings of his music.  It took a while, but eventually I was able to assemble a fairly extensive collection of his work, almost all of it instrumental music.  My favorite Kevin Puts composition is his Violin Concerto, which was written for Ft. Worth Symphony concertmaster Michael Shih when Mr. Puts was composer-in-residence for that orchestra, and is available on a recording made at the world premiere performance and released by the FWSO on its own label.  (Mr. Puts’ Third Symphony, also a very attractive piece, is on the same release, together with music by Gabriela Frank.)  It’s definitely worth seeking out (there’s a link on Mr. Puts’ website, or go directly the Ft. Worth Symphony’s website), and this concerto should be taken up by other violinists, as it deserves to be a repertory piece.  For sheer beauty it can’t be beaten.

Anyway, back to the songs:  This was quite a varied lot, but all the songs had in common a generally tonal language, a strong sensitivity to the meaning of text, and, on this occasion, excellent performances.  Although it was announced at the beginning that Mr. Blumberg was experiencing a touch of “under the weather” (which resulted in dropping one of the scheduled songs), he sounded fine to me, full of voice and fully engaged in all of his numbers.  Ms. Tappan and Ms. River were pleasant discoveries for me, and I will seek out Ms. Tappan’s new recording of songs by Ricky Ian Gordon (whose song “Bless This Our Lovely Home,” one of the Opera America commissions, was presented with Mr. Gordon at the keyboard, as noted above).  I can second Mr. Puts’ comment, introducing this song, that Gordon is definitely one of our most gifted contemporary song writers, and this song — which can be found on the Opera America CD — is a prime example of his art.

The song that I enjoyed the most was Derek Bermel’s “Lucky Number,” which was scored for the ensemble of all three singers, Mr. Yang (violin and voice), and piano, with a text by Wendy Walters.  This was among the most “listener-friendly-at-first-hearing” pieces on the program, having a strong whiff of Broadway about it.  By the way, I just saw a laudatory review in Gramophone of a new recording of Bermel’s music by Alan Pierson and Alarm Will Sound on the Canteloupe label, so — Bermel fanciers alert!  I’ve placed my order…

Finally, at the conclusion of the concert, the three arias from “Silent Night” were sung by Jesse Blumberg and Stacey Tappan.  Spectacular!  Somebody in New York has to put on this opera!  Soon!!

Turning to my other observation: 

I’ve been a fan of the combination of Tom Meglioranza and Reiko Uchida since I heard their recital at Weill Recital Hall (Carnegie Hall) many years ago.  I’d been invited to attend by Jorge Martin, the composer whose commissioned work was being performed.  I fell in love with Meglioranza’s singing and attended more concerts, communicating my enthusiasm to him.  I was very enthusiastic about his first self-produced recital disc with Uchida, a collection of Schubert songs selected and arranged to make up a thematic cycle.  And I was delighted when the snail-mail brought a welcome surprise late last week: a new Meglioranza disc, this time of Schubert’s great Winterreise song-cycle, again with Uchida. 

I’ve listened to it several times, put it on my ipod for portable listening, and become totally absorbed.  (It’s now the second Winterreise on my ipod, sharing the honors with Ian Bostridge and Leif Ove Andsnes, so they are in good company.)  Meglioranza’s art deepens, the collaboration with Uchida goes from strength to strength, and there is nothing less than first-class about this self-produced recording (which is available from CDBaby.com).   Too many lieder recordings these days are released without texts and translations.  This one comes with a song-by-song summary on the cardboard album and a booklet with original texts and Meglioranza’s English translations, as well as photographs and biographies of the performers.  The studio recording has a bit less resonance than the prior Schubert disc (which was made in the auditorium at the American Academy of Arts and Letters in Upper Manhattan), which affects slightly one’s perception of the voice.  It sounds a bit lighter and less full on the bottom than in the prior recording, but all the virtues I know from past exposure to Meglioranza’s work are there, not least the deep engagement with the text, the fine intonation and rhythmic sense, the wide range of dynamics, and the close collaboration with Uchida, whose sensitive accompaniments play a major role in the success of this recording.  (I’m no expert in German dialect, but no less an expert than the late, great Dietrich Fischer-Dieskau is quoted in the booklet reacting to Meglioranza’s prior Schubert disc with praise for his German; DFD suggests he must be of German descent to be an American who sings German so well!)  

Anybody who hasn’t discovered this combination of performers should rush to get the recording.  If you’re a Schubert fan who already has ‘too many Winterreises’ in your collection, get the earlier recital, which includes plenty of less-frequently-performed songs that are nonetheless all winners!  But how can any collection of Schubert lieder have ‘too many Winterreises’??