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

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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  Upon learning this information, Fontbonne’s representative rescinded the job offer and informed Barrett that the School could not employ him due to his same-sex marriage.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.

 Massachusetts State Anti-Discrimination Law and Narrow Religious Exemption

 Massachusetts’ state anti-discrimination law prohibits adverse employment-related decisions based on sexual orientation, among other things.  The statute contains a narrow religious exemption, which applies only to religious institutions and other organizations “operated, supervised or controlled by or in connection with a religious organization.”  Qualifying organizations must also limit “membership, enrollment, admission or participation to members” of their own religion, thereby allowing them to give preference in hiring only to members of the same religion.

 Massachusetts law does not directly provide for any other employment-related religious exemption that could apply here.  Unlike many other states, Massachusetts has not enacted a version of the federal Religious Freedom Restoration Act (“RFRA”), under which an employer’s religious liberty interests may be burdened only upon a showing of a compelling government interest.  In judicial practice, however, Massachusetts courts will engage in a similar balancing analysis. 

 Lessons for Faith-Based Employers

 Barrett’s discrimination claim was fairly clear-cut: (a) the School admitted that it rejected him based on his sexual orientation; (b) the sexual orientation anti-discrimination statute prohibits such adverse employment action; and (c) no religious exemption applied to the School.  This result may seem surprising to many faith-based organization leaders, who may assume that broader religious protections apply to their employment decisions.  Here are the takeaways for faith-based employers.[1]

 1.         Understand that legal protections for sexual orientation (and gender identity) are generally increasing.

The nation-wide trend is expansion of anti-discrimination laws in employment, housing, and credit.  The U.S. Supreme Court’s Obergefell decision was of monumental proportions, recognizing a “fundamental right” for same-sex couples to be married.  In its wake, the U.S. Equal Employment Opportunity Commission has broadened its application of federal nondiscrimination law to include sexual orientation and gender identity as protected classifications under Title VII (notwithstanding some federal court rulings to the contrary).  The Massachusetts court in Barrett affirmed a similar expansion, finding that the state’s “compelling interest in prohibiting discrimination against historically disadvantaged groups” includes sexual orientation employment issues.  Such favorable judicial disposition made it easy for the court to rule summarily in Barrett’s favor.

 2.         Carefully review applicable religious exemptions within anti-discrimination laws.

 Religious exemptions may be narrower than assumed!  The statute in Barrett was fairly typical – applying only as a “co-religionist” preference.  In other words, an organization may qualify for religious exemption only to the extent it requires people of the same faith as its employees, members, housing occupants, and other beneficiaries.  Fontbonne failed to satisfy the exemption, since it allowed students who were non-Catholic.  While the Massachusetts court had no problem with the co-religionist statute’s validity, this constrained legal approach is quite problematic in both practical and constitutional terms. 

 First, many Christian organizations seek to promote their mission through outreach efforts that are deliberately aimed beyond their faith, such as housing and educational programs intended as compassionate expression of care to nonbelievers.  Under the “co-religionist” rule, such beneficial societal efforts threaten the organizations’ religious liberty rights by removing the religious exemption’s availability.

 Second, this “co-religionist” exemption raises significant constitutional issues.  May a non-denominational Christian organization refuse to hire a professed Christian engaged in a homosexual relationship if the relationship clashes with the organization’s views on Biblical sexuality espoused by the organization?   Would a court find the church’s refusal illegal because the individual and organization espouse the same “religion,” despite their differences in underlying theological viewpoints?  Should a court even tread into these theological, non-legal areas?  Federal courts handling Title VII cases have resoundingly rejected doctrinal inquiries into religious organizations’ affairs, as constitutionally excessive entanglements.  The reasoning of these cases, while beyond the scope of this article, should apply with equal force to Massachusetts’ narrow “co-religionist” exemption. 

 3.         For optimal religious liberty protection, faith-based organizations need to reflect a comprehensive, thoroughly religious nature. 

 Fontbonne wanted all of its employees to reflect its Catholic values.  But such desire, alone, was legally insufficient to protect the School from Barrett’s employment discrimination claim.  As the court recognized, the Food Service Director position for which Barrett was hired did not reflect any faith-related component in terms of his actual job duties.  While the School may have disagreed in principle, it provided little evidence to justify any faith-related employment requirement.  The court certainly did not view favorably the School’s reliance on only its self-professed wishes regarding employees’ faith-related conduct. 

 Compare Barrett’s position with that of the School’s teachers.  For those positions, the written job descriptions presumably contained specific faith requirements, such as knowledge of the Bible, ability to share the Gospel with students, importance of being a role model in leadership activities, and personal conduct reflecting affirmation of Biblical teachings as reflected in the School’s religious creeds.  Such requirements should be reflected in other areas, such as actual day-to-day responsibilities and job performance expectations.  They fall entirely within the long established “bona fide occupational qualification” (BFOQ) exception to otherwise applicable employment discrimination laws.  Through the BFOQ exception, the law recognizes that many jobs may contain valid faith-related requirements to be respected and honored.

 Faith-based organizations may enjoy legal protections through BFOQs (as well as perhaps the “ministerial exception” and special protections for churches).  But they need to be legitimately identified by employers through written job descriptions and other measures (e.g., governing documents, statements of faith, policies, worker handbooks), not just by mere impositions of faith-related employee requirements.

 4.         Don’t expect religious liberty protections to trump anti-discrimination priorities.

 The Massachusetts court in Barrett carefully analyzed the statute at issue, noting that, while the primary anti-discrimination statute seemed to allow a broad employment-related religious exemption, the co-religionist provision “compel[led] exactly the opposite conclusion.”  Applying rules of statutory construction, the court harmonized these contradictory provisions by elevating the importance of sexual orientation protection over employers’ religious liberty, finding the former to be of more “prominent” value.  The court further determined that barring discrimination based on sexual orientation “would promote the stronger legislative purpose,” particularly in light of the legislative history indicating a “consciously narrowed” employers’ religious exemption. 

 The court further rejected Fontbonne’s constitutional claims, based on its recognition of the government’s “compelling interest” especially within the employment context.  In doing so, the court relied on the Supreme Court’s Obergefell, Hobby Lobby, and Bob Jones decisions.

 5.         Legislative advocacy may make a difference.

 The Barrett case was decided largely on the basis of state statutory interpretation.  Would it have been different with a state RFRA in place, or perhaps under a broader religious exemption?  Perhaps.  Legislative advocacy may be an important tool for employers seeking greater religious liberty protection.

 State RFRA laws generally provide religious liberty protections through a balancing test, which seeks to honor both religious liberty and government interests, without any predetermined outcomes.  Notably, the Hobby Lobby case was decided under the federal RFRA, with a very favorable employer victory honoring its religious values regarding abortifacients.  To assert a RFRA claim, an employer must establish that it holds a sincere religious belief that has been substantially burdened.  Upon such a showing, the burden shifts to the government to demonstrate the existence of a compelling government interest that is unachievable by a less restrictive alternative.  The court in Barrett applied a RFRA-like legal analysis, but it concluded that the state’s anti-discrimination interests outweighed the School’s religious interests. 

 It may have been much more helpful to Fontbonne if Massachusetts law provided for a broader religious exemption.  Many state and local laws currently provide exemptions from anti-discrimination laws for “religious employers” generally.  Fontbonne quite possibly could fit within that description as a religious school.  So a better, broader exemption beyond the narrow “co-religionist” version would be a worthwhile goal for legislative advocacy.  The fact that a state or local law has some sort of religious exemption may not be not enough, as Fontbonne learned. 

 With respect to laws containing a general “religious employer” exception, it remains to be seen whether courts will recognize faith-based organizations so broadly as “religious employers,” rather than limiting the definition to churches and other religious institutions only, particularly in light of significantly developed LGBTQ legal rights.  It therefore remains important for employers seeking religious liberty rights to reflect their religious nature as strongly and comprehensively as possible, including development of legitimate BFOQ requirements for specific faith-related jobs.


[1]           Churches and other religious institutions enjoy greater employment-related religious protections, under applicable constitutional and other legal principles.