Yesterday, I looked at the issue of Catholic universities, and by extension other Catholic agencies, extending health care and other benefits to employees who enter into same sex unions. Today, I want to look at a different issue, namely, LGBT non-discrimination laws that govern when and if it is permissible for a Catholic or other religious agency to discriminate against a gay or lesbian person in hiring.
This issue has come up all over the country, but I begin my focus on two measures that recently passed the DC City Council. The first, the Human Rights Amendment Act (HRAA) amends the DC anti-discrimination statute by removing the explicit exemption for religious organizations. The other measure, the Reproductive Health Non-Discrimination Amendment Act (RHNDA), is yet more dangerous. Ostensibly, it makes it illegal to discriminate against anyone on the basis of their reproductive choices. It is dangerous because it not only fails to provide a religious exemption to its non-discrimination provisions, but could affect the Church’s ability to offer insurance plans that do not cover elective abortions. Both proposals, then, assault the institutional integrity of our Catholic institutions by making it illegal to fire, in ministerial positions like teaching and counseling, people who do not share the Church’s mission.
This is not to say that anyone who is gay, or someone who takes the pill, should never be hired by a Catholic school. As I noted yesterday, we all know gay men and women who are disciples of the Lord and active and effective ministers of the Gospel. It is to say that the new DC laws would require expensive litigation, for example, if a Catholic school terminated a gay teacher who was continually provoking his colleagues and/or students by denouncing the Church’s teaching on marriage or if a Catholic hospital terminated a worker who told patients how glad she was to have procured an abortion. In any event, having the government meddle in such matters as who should and should not be hired in a ministerial position is a truly bad idea.
Anyone who thinks that local government is some panacea and the big, bad federal government is the root of all evil should spend some time at a DC City Council meeting or, for that matter, a session of your state legislature. Stupidity and corruption abound in local and state as well as in federal precincts. Still, even I was shocked at the inability of the DC City Council to grasp some of the most basic facts about constitutional law. For example, in a hearing on the HRAA, Council member David Grosso said he thought the repeal of the religious exemption should be applied not only to religiously affiliated institutions like schools and charities but to the churches themselves. Mr. Grosso is apparently unaware of the First Amendment’s separation clause as well as the free exercise clause. In the Council discussion of RHNDA, the Attorney General for the District explained that the proposal was “legally insufficient” because it ran afoul of the First Amendment and the Religious Freedom Restoration Act (RFRA). At the recommendation of the mayor, the Attorney General for the District looked at the proposal and a religious exemption was subsequently proposed by the Attorney General’s Office, but this exemption was not actually included in the proposal when it came before the Council. You can see the video of the proceedings buy clicking here and scrolling down to the date of the discussion, December 17, 2014 - the relevant discussion is at 00:49:00. The key point comes after the Chairman of the City Council, Phil Mendelson, said to the General Counsel that he understood there were concerns about whether the proposal was legally sufficient, and that the proposal did not yet entirely satisfy the Attorney General. The General Counsel replied:
General Counsel (David Zvenyach): Sure. That’s correct. The Attorney General had requested an explicit exception to this bill with respect to ministerial exceptions. It’s my impression, and I believe the case law bears this out, that whether it’s explicit or not, the ministerial exception is required and would be read into the statute by the First Amendment. In other words, the Council could not pass this without a ministerial exception, but the ministerial exception is implied and the courts would find that there is a ministerial exception consistent with Hosanna Tabor. So it’s legally sufficient but it just doesn’t go as far as the Attorney General would like it to go.
What just happened there? In those words “the courts would find,” the DC City Council just handed the taxpayers of the city a big fat bill for future, and unnecessary, litigation. The courts have already determined the issue in Hosanna Tabor. The only reason to persist in passing this measure was to look good in front of the constituencies that wanted it. It may not withstand a court challenge, but your campaign literature can say that you passed a bill.
The General Counsel referred to Hosanna Tabor, the 2012 Supreme Court case in which a unanimous court ruled that religious organizations can choose their own ministers without any government interference of any kind, the so-called ministerial exception to non-discrimination laws. The reasons should be obvious: No one wants the government telling religious organizations which ministers are kosher and which aren’t. The concurring opinion by Justices Samuel Alito and Elena Kagan, two jurists who do not often agree, made two key points. First, they stated that the term minister extended to those who teach the faith, such as school teachers:
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.
The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.
But, they also pointed to the importance of civil society and the need to respect the institutional integrity of organizations like churches. They wrote:
Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies “independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952).
The members of the DC City Council should be made to memorize those sentences. Alas, the act of providing a thoughtful balancing of governmental objectives – and the governmental objective in Hosanna Tabor was a fine one, preventing the discrimination of those who are physically handicapped – is not something that comes naturally to politicians in our day and age. There are special interest groups that will raise money for your re-election campaign if you adopt any amendment that advances gay or reproductive rights, and there are other groups that will write checks if you think religious freedom should allow a person to flout common standards of decency such as the Civil Rights Act – which, by the way, included a religious exemption. But, Alito and Kagan are jurists and they do not have to seek re-election.
In the event, the main proponent of these two obnoxious and unconstitutional proposals destined to cost the taxpayers a ton of money in unnecessary litigation is Council member David Grosso. (Incidentally, he has a law degree and should know better.) He knows something about these groups that help fund candidates in exchange for those candidates pursuing their ideological agenda once elected. According to the bio on his official website: “David is a current member of the D.C. Bar and previously served on the board of directors of Planned Parenthood Metropolitan Washington. He is a member of the Sierra Club, NARAL, ProChoice America and the ACLU. David is married to Serra Sippel who is also a native Washingtonian and president of the Center for Health and Gender Equity.” There you have it. Planned Parenthood? Check. NARAL? Check. ACLU? Check. These organizations look at the Catholic Church and they see an enemy. I would add that his wife also formerly worked for Catholics for Choice. I do not throw around a word like “evil” very often, but Catholics for Choice is evil, not only dissenting from the Church but trying to confuse people and undermine the Church.
Mr. Grosso may view us as the enemy, but if we consent to viewing him as the enemy, we have already lost. And, here is the problem with the culture war mentality that afflicts so many in our Church. In their zeal to defend the rights of the Church, they end up adopting a lawyerly and political approach to these issues and the Church ends up looking like just another special interest group. In this case, any one who knows Washington’s archbishop, Cardinal Donald Wuerl, knows he is no culture warrior and did not go looking for this fight. I know of no instance where any employee of the Catholic Church in this archdiocese has been fired because he or she was gay, nor because of any reproductive choices. I do recall the case of Father Guarnizo which actually points to the priority of pastoral care over ideology that has long characterized this archdiocese. But, to people like Grosso, they read about some prominent Catholic attacking gays and lesbians, and they just lump us all together. Mr. Grosso may or may not know that Cardinal Wuerl can’t discipline the Archbishop of San Francisco when he makes opposition to gays a central point of Catholic identity or raises millions of dollars to lead the political fight against same sex marriage. Nor can anyone in the hierarchy tell Bill Donohue or EWTN to stop being so bloody offensive. And, in the final analysis, the Church is told explicitly by the Master what to do when confronted with an enemy: We are to pray for them and to love them. Not always easy, I know, but it is how the world will know we are Christians.
I have no sympathy with people like David Grosso who seek to sideline the Church and minimize civil society. But, I also have no sympathy with the strategy advocated by too many Catholics for confronting these challenges in kind. As gay groups move from the fight for legalized same sex marriage to the fight for non-discrimination laws, the Catholic bishops need to ask themselves what it means to be an employer in a culture that shuns discrimination of any kind. This almost reflexive opposition to discrimination is especially prominent among our young people and they are not wrong. Discrimination is an ugly thing and, in the case of gay people, it has been all too real. The Church must devise a better response than more litigation, more culture war, more reduction of the Church’s identity to a few hot button sexual issues. Tomorrow, I shall look at how too often we bring these nightmares on ourselves, risk alienating a whole new generation of Catholics, and how the leaders of the Church must grapple with the yet deeper issue of how to proclaim the Church’s teaching about marriage and family in today’s culture.