Catholic schools and “same-sex marriages”: An emerging legal clash

In the first three disputes, all of which arose in Indiana, educators in Catholic high schools unsuccessfully sued educational officials for terminating their employment due to their having entered into “same-sex marriages” in violation of Church teachings and their contracts. Conversely, in the fourth suit, officials at a Catholic high school in North Carolina have appealed an order in favor of a former substitute teacher whose employment they terminated because announced he would enter a “same-sex marriage”.

In order to provide necessary context, this essay will briefly review the ministerial exception, defined statutorily in Title VII of the Civil Rights Act of 1964, the most significant federal law banning employment discrimination on a variety of characteristics, including religion, a topic I have written about previously in Catholic World Report.

The second part highlights key points from the cases. The final section reflects on both why the ministerial exception must be preserved and why school officials in North Carolina are likely to prevail.

The ministerial exception of Title VII Supreme Court cases

Along with protections afforded workers generally, Title VII applies to faith-based institutions, including schools, that employ fifteen or more persons exempting them from charges of religious discrimination in personnel matters. Congress included these exceptions because it was aware that tensions may arise when faith-based employers hire or fire staff members who file claims of religious discrimination.

Rather than examining the expansive Title VII in detail, this section focuses on the ministerial exception which applies to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” Rooted in the First Amendment Religion Clauses, this exception applies as long as officials can prove that employees are engaged in teaching or other activities integrally related to furthering the spiritual and pastoral missions of their institutions that their duties may be treated as ministerial. Under this exception, courts have deferred to the discretion of church leaders, even if educator contracts did not include the words “minister” or “spiritual” where their jobs involved integrated teaching and daily religious functions such as leading children in prayer.

The Supreme Court first upheld the authority of religious employers under Title VII, albeit not under the ministerial exception, in Corporation of Presiding Bishops v. Amos (Amos). The Justices observed that when officials of the Church of Jesus Christ of the Latter Day Saints in Utah relied on Title VII in dismissing a staff member for failing to meet his religious obligations, the statute did not violate the Establishment Clause, thereby extending its reach to non-religious employment-related activities.

Over the past eleven years the Supreme Court, recognizing (as noted) that the ministerial exception is grounded in the First Amendment, twice upheld its application as specified in Title VII. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunities Commission, albeit under the Americans with Disabilities Act, not Title VII, the Supreme Court unanimously upheld the constitutionality of the ministerial exception. The Justices decided that despite a Michigan teacher’s allegation that her primary duties were secular, the exception precluded her ADA disability-related claim because only church officials have the authority to identify who qualify as ministerial employees.

Three years ago, in companion cases from California, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Supreme Court again affirmed the constitutionality of the ministerial exception. The Court rejected the age discrimination and ADA claims of teachers in two different Catholic elementary schools because, as ministerial employees, the First Amendment barred their suits. The Court again deferred to officials in determining who qualified as ministers.

Recent litigation

In 2022, the Seventh Circuit, in the first of a pair of cases from Indiana involving the same Catholic high school, same two plaintiffs, and the ministerial exception, unanimously affirmed a grant of summary judgment in favor of officials who non-renewed the one-year contract of a supervisory guidance counselor. Officials refused to re-employ the counselor who worked at the school for “her ‘entire adult life,’ 39 years,” when they learned she was in a “same-sex marriage” with her co-director of guidance.

On appeal in Starkey v. Roman Catholic Archdiocese of Indianapolis and Roncalli High School the Seventh Circuit unanimously affirmed the denial of the claims of an award-winning counselor that she was subjected to discrimination, retaliation, and a hostile work environment under Title VII, along with state law charges. The court agreed that because “[f]or more than 30 years, Roncalli’s employment contracts included a morals clause, and all evidence shows that the school considered Starkey to be a minister and entrusted her with religious duties,” the ministerial exception in the First Amendment precluded her Title VII claim for sexual orientation discrimination, and, as a matter of apparent first impression, meaning it was the first time this issue was raised, the ministerial exception prevented her from pursuing her state law claims.

On July 13th, in the related case of Fitzgerald v. Roncalli High School, a unanimous Seventh Circuit affirmed the dismissal of the claims of the second guidance counselor who had been in a fourteen-year-long “same-sex marriage” with the plaintiff in Starkey, the duration of her employment there. Even though the counselor had “exceptional performance reviews,” the court rejected her claims that officials both selectively enforced a morality clause against males and heterosexual couples in their contracts, discriminating against her on the basis of sex in not renewing her employment contract because she married a woman.

Conceding that Title VII prohibits discrimination based on sex, the Seventh Circuit pointed out that the ministerial exception controlled this dispute. Consequently, citing both Hosanna Tabor and Our Lady of Guadalupe, the court rejected the counselor’s claim that “she exaggerated her involvement in the religious components of the school because [she] … ‘wanted to get a raise in pay’” insofar as the ministerial exception negated her claims.

In the time between the two previous cases, the Supreme Court of Indiana reached a like result in a 2022 conflict not involving the ministerial exception. Reversing an earlier judgment to the contrary in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, the court chose not to rely on either ministerial exception or freedom of expressive activity defenses. Instead, the court reasoned that officials could dismiss a male teacher even after they renewed his contract on learning that he entered a “same-sex marriage” in violation of Church teachings. The court agreed that officials did not violate the teacher’s rights because under the legal doctrine of church autonomy, they were entitled to be free from state interference in sensitive internal religious matters.

Controversy arose in North Carolina when officials at a Catholic high school terminated the employment of a male who taught English and drama there for twelve years before becoming a substitute but had no role in the religious formation of students. Following the teacher’s announcement that he would he entering into a “same-sex union” after having been married to a woman for about twenty-four years, officials refused to assign him any duties. The facts revealed that the teacher walked out of training sessions at the school about its code of ethics instructing employees to uphold the teachings and principles of the Catholic Church by serving as role models to students who may not publicly engage in conduct or advocacy contradicting its moral tenets because he disagreed with their tone about “same-sex marriages”. Relevant documents did not expressly address the issue.

At the same time, officials in North Carolina discourage teachers of secular subjects from instructing students on any religious subjects including Catholic Doctrine. Yet, teachers are expected to facilitate prayer at the beginning of their classes, a duty that arguably brings this case under the ministerial exception. Moreover, officials neither know the percentage of teachers at the school who are Catholic nor ask if they are during job interviews. As evidence of their compliance with Church teachings, though, officials dismissed employees for violating its beliefs on marriage such as where a male physical education teacher had an affair, another male was fired for being in a same-sex relationship and adopting a child with his partner, and terminating a female’s employment for planning to marry a Catholic man who had not received an annulment.

In Billiard v. Charlotte Catholic High School a federal trial court entered a judgment in favor of the teacher, finding that officials discriminated against him due to his sexual orientation. The court rejected officials’ defense that they fired the teacher for “engaging in or advocating for conduct contrary to the moral tenets of the Catholic faith.” Additionally, the court refused to apply the ministerial exception, among other defenses, which it described as “a branch of [the] church autonomy doctrine,” contending that it was inapplicable because those who taught non-religious classes were not required to provide instruction about Catholicism. While the judge ordered the dispute to trial, further proceedings are on hold pending the appeal of school officials to the Fourth Circuit that is likely to be heard this Fall.

Reflections

As an initial matter, it is essential that the ministerial exception must be preserved and protected. It buttresses the constitution right to religious freedom of leaders in faith-based schools to maintain their identities by having the sole authority to hire, and retain, qualified individuals who not only provide witness to their faiths but also strive to advance institutional missions.

Moving forward, starting with Billard, in its opening brief to the Fourth Circuit the Becket Fund for Religious Liberty, the public interest law firm representing school officials, described the issue as “simple but significant: May religious schools require their teachers and other employees such as counselors to support their core religious practices? The answer—supplied by federal statute, the Constitution, and binding precedent—is yes.” Further, according to an attorney for the Becket Fund for Religious Liberty, “If the First Amendment protects a business’s decision about which services to offer the public, it … protects a church’s decision about who is religiously qualified to fulfill the mission of a religious school.”

Essentially, the Becket Fund is advocating that the Supreme Court’s judgment in 303 Creative v. Elenis, based on the notion of expressive association, is controlling in Billard. Although not explicitly identified in the First Amendment, courts have acknowledged that persons have the fundamental right to associate freely with those they wish and “to maintain close familial or other private associations free from state interference.” To this end, in Creative 303 the Court reasoned that a statute from Colorado could not force a website designer to offer her artistic services to individuals entering “same-sex marriages” because this would be impermissible compelled speech. If the Becket Fund for Religious Liberty’s approach succeeds, it could be a game changer that adds greater protection for officials in faith-based schools as they defend their personnel policies against discrimination claims.

The exception in Billard aside, Catholic elementary and secondary schools have typically included clauses in their contracts, thereby making it clear that all employees, regardless of their positions, are expected to adhere to Church teachings as set forth in the Catechism of the Catholic Church, whether at work or on their own private time. One key lesson for leaders in Catholic, and other faith-based, schools regardless of the outcome in Billard, then, is that they must be more careful to add explicit language in their contracts on matters of sexual morality, “same-sex marriages” in particular. In writing policies, provisions should include such expansive terms as “includes, but not limited to” because courts typically defer to this type of language insofar as they are aware that otherwise well-crafted policies cannot always cover every possibility on specific topics.

It is important to realize that the litigation discussed above also involves contract law. Assuming that there are legally competent parties on both sides of agreements who should have read, understood, and freely accepted the terms they signed, there should not be an issue as to the authority of school officials to dismiss individuals for having knowingly violated their contracts. In other words, how, or why, can employees in Catholic, or other faith-based, schools who signed contracts, whether with explicit provisions on “same sex-marriage” or codes ethics as in Billard, but typically receive copies of the Catechism, later refuse to comply with the terms of their agreements because they are unwilling to accept items with which they later disagree? While it may not always be so simple, if employees refuse to abide by the terms of the contracts they sign, why did they agree to their terms in the first place?

Returning to Billard, it is likely that school officials will succeed because in addition to precedent discussed above on the ministerial exception, expressive association rights, and the right to be free from compelled speech, it is hard to imagine that a court would order educational officials to retain, or hire, teachers, counselors, or others whose lifestyles openly contradict institutional religious values. If the Fourth Circuit accepts this rationale, it will confirm what other courts have already ruled, namely that only religious educational or ecclesiastical officials, not secular jurists or administrative agencies such as the EEOC, have the authority to decide who qualifies as ministerial employees in faith-based schools regardless of the pane’s ultimate rationale for doing so.

Yes, individuals have the right to live the lifestyles they wish and be free from discrimination. But disagreements involving the supplication of the ministerial exception in faith-based schools boil down to the recognition that respect is a two-way street. Just as employees deserve respect to be able to live freely as they desire, so, too, should these individuals should not only honor their commitments in the contracts they signed but also accept that others may have values different from their own?

If individuals are unable to abide by the contracts to which they agreed, then perhaps they should consider working in schools or professions more aligned with their values because there is no right to employment. Thus, one hopes that prospective and current teachers, counselors, and other educational employees will respect the values of the Catholic and other faith-based educational institutions, let alone honor their contracts by complying with the agreements they signed, as they work with leaders to inculcate the beliefs these schools promote, live by, and teach.