Today’s post is from Lisa Fullam, D.V.M., Th.D. Lisa teaches moral theology at the Jesuit School of Theology of Santa Clara University, California. Her research interests include Virtue Ethics, sexual and medical ethics, and Ignatian spirituality. For Lisa’s full bio, including her publications, click here.
With the U.S. Supreme Court’s Title VII decision to include sexual orientation and transgender identity under the protections of the Civil Rights Act of 1964, the leadership of the Catholic Church has a chance to review its own stance on matters of civil equality for LGBTQ people.
Let’s look back: the Catechism declares of gay and lesbian people that “Every sign of unjust discrimination in their regard should be avoided.” (CCC 2358) It speaks volumes that the Catechism’s discussion of homosexuality is listed under its discussion of the Sixth Commandment, (“Thou shalt not commit adultery,”) rather than a more appropriate placing, such as a section on social justice, where it states:
“The equality of men [sic] rests essentially on their dignity as persons and the rights that flow from it:
“Every form of social or cultural discrimination in fundamental personal rights on the grounds of sex, race, color, social conditions, language, or religion must be curbed and eradicated as incompatible with God’s design. (CCC 1935, quoting Vat. II Gaudium et Spes 29)”
Yet, in regard to LGBTQ people, only “unjust” discrimination is to be “avoided,” (not necessarily “curbed and eradicated”). “Just discrimination” that has been supported by Church leaders is expansive: military service, adoption, employment, housing, and marriage, just for starters.
In the Title VII case, the United States Conference of Catholic Bishops joined with a few other groups in an amicus brief supporting Clayton County, a party in one of the Title VII cases under review by the Supreme Court, arguing that:
“Were this Court to declare that federal law forbids sexual orientation discrimination in the workplace, it would open the floodgates to a host of problems, including for persons and institutions with religious and moral convictions about sexual conduct. (7)”
Well, that’s true for some kinds of religious and moral convictions about sexual conduct. The amicus brief from the Episcopal Church (USA), the United Church of Christ, the United Synagogue of Conservative Judaism, and the Central Conference of American Rabbis, and others, argued on the ground of the equal dignity of LGBT people that civil rights protections should be extended, and that doing so would not impinge on religious groups’ rights. Here they reminded the court of its own 2012 Hosanna-Tabor decision.
In that case, a teacher left the school on disability after being diagnosed with narcolepsy. When doctors cleared her to return to work, the school refused to rehire her, saying they’d hired someone else. When she threatened to sue under the Americans with Disabilities Act (ADA), she was fired for “insubordination and disruptive behavior.” The Court held unanimously that the ministerial exception, which bars the application of anti-discrimination laws to religious institutions’ employment relationships with people they designated as “ministers,” applied in this case.
But wasn’t that a Pyrrhic victory? A religious institution argued all the way to the Supreme Court that it could treat its employees unjustly if it called them “ministers”? Catholic institutions are no better. New Ways Ministry’s website lists more than 100 people fired from Catholic institutions because of LGBTQ issues, most having to do with same-sex partners or marriages.
Another set of cases that were consolidated (Our Lady of Guadalupe School vs. Morrissey-Berru, with St. James School vs. Biel) came before the Court this year.
Kristen Biel was hired by St. James Catholic School as a full-time teacher in 2013, and she was diagnosed with cancer less than a year later. After she told a colleague of her diagnosis, Biel was informed that her contract would not be renewed, due to her “loose classroom management.” She sued under ADA protection, but the USCCB and others are arguing that she counts as a “minister.”
Agnes Deirdre Morrissey-Berru taught at Our Lady of Guadalupe school for 16 years, during which time she also earned a teaching credential from Chapman University. Alleging that Morrissey-Berru was inadequately implementing a program to raise academic rigor at the school, she was moved to part-time, then fired. She was in her 60’s at the time. Morrissey-Berru sued, claiming that the school fired her in violation of the Age Discrimination in Employment Act of 1967. Again at stake is employees’ civil rights versus employers’ religious liberty, essentially taking another step in spelling out the implications of Hosanna-Taybor vs. EEOC. Oral argument took place earlier this year. Stay tuned for the decision on these cases.
The question of the proper scope of the ministerial exception is complex. But with the Title VII case decided, and the other case pending, I think the key question is: what cases do Church leaders want to win? Does—should—a Catholic institution assert all the way to the nation’s highest court a right to treat its employees in violation of civil rights laws?
In a time in which the Church is hemorrhaging members–and who knows how the Covid-19 lockdowns will affect membership in the future?—and with more than 70% of US Catholics (and majorities of all US religious groups) in favor of nondiscrimination protections for LGBTQ people, shouldn’t Church leaders look again at where they stand on civil rights? Catholic Social Teaching should inspire Church leaders to err on the side of employees, on the side of human dignity, and on the side of this week’s historic decision.
—Lisa Fullam, Jesuit School of Theology of Santa Clara University, June 19, 2020