Outside view: Religious employers can favor members, but not discriminate

This editorial from the Los Angeles Times does not necessarily reflect the opinions of The Spokesman-Review editorial board.

In December, a court in Massachusetts ruled that a Roman Catholic school engaged in illegal discrimination when it rescinded its offer of a job to an applicant after learning that he was in a same-sex marriage. The Catholic Action League of Massachusetts condemned the ruling as “a frontal assault on religious freedom,” but in fact, the ruling is carefully crafted and offers a model for how to balance two important values: freedom of conscience and freedom from discrimination.

The case involved Matthew Barrett, who in 2013 accepted a position as food services director at Fontbonne Academy, a Catholic girls’ school in Milton, Massachusetts. The school withdrew the offer after Barrett listed his husband as an emergency contact on a school form. He filed a complaint under a Massachusetts law that prohibits job discrimination on the basis of sexual orientation.

Judge Douglas H. Wilkins concluded that denying a job to someone because he is married to another man is discrimination on the basis of sexual orientation. The judge also rejected the school’s argument that being forced to hire Barrett would violate its constitutional right to “expressive association” because the fact that he was in a same-sex marriage would undermine the school’s message that such unions are wrong. Not only was there no evidence that he had engaged in “advocacy” of same-sex marriage, but his duties as food service director, the judge noted, would not have involved “formally presenting … the teachings of the Catholic Church.”

There are situations in which religious freedom can trump laws against discrimination. In 2012, the Supreme Court rightly held that the First Amendment required a “ministerial exception” from employment discrimination laws, giving religious schools essentially blanket authority to hire and fire members of the clergy or teachers of religion. Also, like Massachusetts, Congress has allowed religious employers to favor workers of their own faith – even for nonministerial positions. But that is a far cry from allowing religious employers to ignore laws against discrimination on the basis of sexual orientation.

Although this decision hinged in large part on Massachusetts state law, its reasoning offers some guidance to Congress as it considers overdue legislation to protect gay, lesbian and transgender Americans from employment discrimination. Previous versions of such legislation provided a blanket exception for religious employers, but there is no such provision in the proposed Equality Act introduced this year. Under that legislation, religious organizations could continue to favor members of their own faith in hiring, but they wouldn’t be able to discriminate on the basis of sexual orientation any more than they could do so on the basis of race or gender. That’s the law in Massachusetts, and it should be the law nationwide.