The fight over whether gay marriage should be legal ended in 2015. But the issue remains unresolved for conservative faith groups, leading to continuing battles between the thousands of schools, non-profits and houses of worship run by conservative faith groups and any gay and lesbian employees who may work for them.
A source of contention is the word “ministry.” Courts have established without question that churches can pick their own ministers. But for some faith-based groups, everyone is part of spreading the faith.
Higgins had been a part-time cantor and choir member for a year and a half at Mother Seton Catholic Church in Germantown, Md. when he says the Rev. Lee Fangmeyer called him in after the 9 a.m. Mass on Nov. 8 to say “it had been discovered,” that Higgins was married to another man. “He said I was an asset to the program and everyone loves my voice but would I resign.” When Higgins said no, he was fired.
Higgins, who has gone to Catholic schools and worked in parishes his whole life, said he is exploring legal options but experts and advocates agree that the courts – including the Supreme Court – have ruled consistently that faith based groups can discriminate in hiring when it comes to employees who are part of teaching or leading the faith. In the Archdiocese of Washington’s statement on Higgins’ firing, they refer to him as a “music minister.”
The Massachusetts case was different. Matthew Barrett was hired and then quickly let go in 2013 from his job as food services director of a Catholic girls’ school after he listed his husband as a contact. Earlier this month, Norfolk County Superior Court Judge Douglas Wilkins said Barrett’s job had nothing to do with teaching Catholicism – and he hadn’t publicly advocated for gay marriage. The judge also noted that the school includes students and teachers who aren’t Catholic.
But for some faith-based groups, anyone not in alignment with the church’s ministry poses a problem.
“For the Church, they are employing this guy who flouts their teachings. His presence on the payroll undermines what the school is trying to teach the kids and what the Church is trying to preserve among the adults,” Doug Laycock, a University of Virginia law professor who specializes in religious freedom, wrote in an email. “These battles over religious doctrine should be fought out within churches, not in the secular courts.”
There unquestionably will be continued fighting in the courts around the rights of faith-based employees and employers. There are federal laws that protect religious liberty and ban discrimination, and then there are state laws that don’t always match. Some states have anti-discrimination laws but not religious liberty protections, and some have the opposite. What your rights are as a gay employee or customer or as a religious boss could depend on where you live.
So far, Laycock said, “employees have been winning more than they lose. But we have nothing like a clear sense.”
Experts say part of the reason the law is far from settled is because few of the disputes have made it to the courtroom.
Faith-based groups have sought legal remedies in the past when they believed their doctrines have been violated by secular law. Can an unmarried minister be fired if she gets pregnant? What about teachers at a religious school? Or someone who uses artificial reproductive means to get pregnant? Can groups whose faith requires no contact between men and women demand male-only bus drivers for their male students’ ride to school?
James Essek, an ACLU lawyer, said religious organizations have defended paying women less wages for similar work, saying their faith views men as the head of households and women’s role as homemaker. “Are we willing to say that’s OK?” he said.
Faith groups in the 1960’s cited religion as a reason they should be exempted from the Civil Rights Act, Essek said.
“Looking back on those times now, we say that’s just discrimination, not religion,” he said.
Many religious conservatives reject that analogy. They argue that the disenfranchisement of LGBT people today can’t compare with the experience of slaves and the institutionalization of racism. They say their issue is limited to maintaining the traditional definition of marriage, and to protecting the rights of faith groups to control their own environments. The “ministerial exception” that allows faith groups to discriminate in picking their ministers, for example, applies to other categories, including race or disability.
Legal consultants who work with religious organizations say there is high demand for information about their rights.
Frank Sommerville, a Texas attorney who advises various faith groups, said the EEOC in recent years has narrowed “substantially” the circumstances when religious employers can discriminate. There are more questions now to get at who is really a “minister” meriting exception.
How much of the employee’s work week is spent on the ministerial/religious duties? How essential is the religious part of one’s job?
“There is concern over where the law is headed. And we don’t have enough cases to determine a pattern so they know what to expect,” Sommerville said.
The question in courts will be how to balance competing interests. In Massachusetts, Laycock said, the judge said the state has a compelling interest in fighting employment discrimination
“But that is not the question. [The question is:] does it have a compelling interest in fighting religiously motivated discrimination inside the church? We’re not talking about the whole economy, we’re talking about a small subset of jobs,” he said.
Marianne Duddy-Burke, director of the GLBT Catholic advocacy group DignityUSA, said the church’s argument about protecting its values is undermined in Higgins’ firing because he didn’t tell people he was married. He wasn’t challenging the church’s teaching. His situation was brought to the pastor, she noted, by a parishioner who did online research in an effort to out Higgins.
“I and many other Catholics believe there is a higher moral standard to which the church should be held,” she said. “We have decades of incredibly profound statements on the dignity of work and the right of workers to be respected… shouldn’t the church be held to the same standard it demands of others?”
She also argued that the church is enforcing its teachings selectively.
“If church officials persist in wanting to ban people from exercising civil rights they find objectionable, they will need to start firing everyone who is divorced, votes for pro-death penalty candidates, has had an abortion, has used IVF to form their family or uses contraception,” she said. “Do we really want to go down that road?”
Higgins said he was very surprised to be fired. He went to the Catholic University and worked at another large parish in the Archdiocese and felt accepted. He didn’t work to hide his sexuality but didn’t “advertise” it out of respect, he said. He never considered he could be fired.
“The reason I didn’t think about it a lot was because when I was 15 years old, I told a priest in confession. He took my head in his hands and said: ‘God made you this way and he loves you exactly as you are,'” Higgins recalled. “From that moment on I understood God loved me, so why should I think any different?”