Lessons From Barrett: Same-Sex Discrimination Ruling Against Catholic School and Resulting Religious Liberty Considerations

A strong state sexual orientation anti-discrimination law combined with a weak religious exemption has doomed a Catholic school’s decision to rescind an offer of employment to a gay food services director.  On December 16, 2015, a Massachusetts judge parsed through the state statute and issued a resounding affirmation of anti-discrimination values over the School’s religious hiring practices in Barrett vs. Fontbonne Academy.  While faith-based organizations outside Massachusetts may not be directly affected, as different law applies, they can all learn from its critical legal and practical implications.

Barrett’s Successful Hire, Then Rejection

Fontbonne Academy’s self-defined mission is “[t]o educate young women rooted in gospel values and the teachings of the Catholic Church.”  The School’s administrative personnel, teachers, and outreach employees are required to be members of the Catholic religion.  Significantly, student enrollment is not limited to members of the Catholic faith.

Barrett applied for Fontbonne’s Food Service Director position.  During his interview, a School representative told Barrett that every employee is regarded as a “minister of the mission” and is expected to model Catholic teaching and values.  In response, Barrett affirmed his agreement with such expectations and accepted the School’s employment offer.

Barrett then completed a new hire form, listing his husband as his emergency contact.  Upon learning this information, Fontbonne’s representative rescinded the job offer and informed Barrett that the School could not employ him due to his same-sex marriage.  Barrett sued.

Open Doors Under the Steeple: Integrating Sex Offenders

For churches and other religious institutions that intentionally practice theologically-oriented hospitality, registered sex offenders present a conundrum.  How can a worshipping organization practice hospitality, generosity, and grace while protecting its members from harm and protecting itself from liability?  The short answer:  it depends.  Religious institutions need to carefully weigh their potential liability against the resources they have available to mentor, supervise, and minister to registered sex offenders.

What’s at stake?

Welcoming registered sex offenders into a religious body may align with ministry philosophy and goals, but organizations must balance their desire to welcome with the need to protect.  A church has no legal obligation to permit a registered sex offender to attend.  Any permission granted should be contingent upon the church’s ability to exercise oversight and provide discipleship.   In granting permission, the church exposes itself to significant risks:  that the sex offender will again commit harmful behavior; punitive damages for negligence; negative media attention; and liability for board members who fail to implement sufficient safeguards.  Smaller churches with limited resources for oversight may choose to exclude all registered sex offenders from the church.

Guidelines for safeguards

If a church chooses to allow registered sex offenders to participate in services and activities, it should have a proactive policy in place that emphasizes the church’s care for its entire church body.  We also recommend that the church use a restrictive access agreement, signed by the registered sex offender, in order to minimize legal risk. An individual’s church participation should be conditioned upon their willingness to submit to oversight and abide by the conditions of the agreement.  Both the policy and the agreement should include the following elements.   

Religious Liberty After Obergefell v. Hodges

Now that that Supreme Court has determined that “[t]he Fourteenth Amendment requires a State to license a marriage between two people of the same sex,”[1] how will the Court’s decision impact religious organizations and individuals?  According to the four dissenting justices, the ruling means trouble ahead for religious organizations and individuals with conflicting religious beliefs.  In particular, the ruling portends new court battles between their constitutional religious liberty interests and developing laws that provide increasing sexual orientation and gender identity (“SOGI”) protection in areas such as employment, education, facility usage, and housing.

In Obergefell, a majority of five Justices determined that same-sex couples have a “fundamental right to marry,” arising out of liberty protections under the Due Process and Equal Protection clauses of the Fourteenth Amendment.  In so ruling, the Court reversed the Sixth Circuit Court of Appeal’s ruling[2] that states may define “marriage” as they wish.  Instead the Court sided with other federal courts that ruled unconstitutional state laws that limited marriage to unions between one man and one woman.    

Speaking for the majority, Justice Kennedy only briefly touched on religious liberty considerations, saying, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  Notably, there was mention of neither religious exercise, as guaranteed under the First Amendment’s free exercise clause, nor broader protections to be recognized for faith-based organizations beyond churches.