Freedom of Religion vs. Freedom from Discrimination: A Lament and A Plan of Action

The July 8th Supreme Court decision in Our Lady of Guadalupe v. Morrissey-Berru has had head-spinning implications for the LGBTQ Catholic community. On the heels of the Court’s June 17th affirmation of LGBTQ discrimination protection, a majority of the Justices ruled out all future discrimination cases by employees who a religious institution claims advance its religious mission, whether they are officially installed as “ministers” or not.

This puts LGBTQ Catholics on the horns of a dilemma. On one hand, we’re members of a religiously pluralist society and supporters of religious liberty. We support church-state separation. As Clarence Thomas argues, the question of who counts as a “minister” is “inherently theological” and religious, not something the courts have any business deciding. And as Matt Malone, SJ, editor-in-chief of America, opines, religious moral standards should be more exacting than the law anyway. No one is forcing religious institutions to discriminate.

On the other hand, as people opposed to all unjust discrimination, we worry: the law should protect workers, not expose them. As Sonia Sotomayor said in her dissent, the decision withdraws all antidiscrimination protections from employees of religious institutions:

“[It] appears to allow that employer to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.

“This sweeping result …. risks upending antidiscrimination protections for many employees of religious entities.”

This would be bad, but not awful, if the no-protection zone applied only to a tiny proportion of each tradition’s leaders installed as “ministers.” However, the ministerial exemption has ballooned potentially to cover so many people as to permit massive legal discrimination. In the US Catholic church alone, over 153,000 teachers and professional staff at Catholic schools—97 percent of whom are lay, not all of whom are Catholic, and (in a bitter irony given that ordination is only for men) most of whom are female—are now exempt from legal protection against discrimination. One out of every six US hospitals—along with 1600 extended care and other healthcare facilities—is Catholic, and their employees could easily fall under the ministerial exemption, too. So could administrators, music directors, youth leaders, coaches, and countless other workers in 17,000 US parishes, not to mention diocesan employees. That is, possibly unprotected employees of US Catholic institutions alone run into the millions. And that does not count employees of all other religious organizations.

Granted, as America’s editors argue, religious institutions have every reason not to discriminate against this huge group of employees (to begin with, the bad press would make them less likely to win future religious discrimination cases!). The problem is that churches have a pretty bad track record in this respect. Bondings 2.0 has covered dozens of cases of anti-LGBTQ employment discrimination in the US Catholic church. In a recent article, Leslie Griffin lists cases in which courts at all levels have already used the ministerial exemption to throw out racial discrimination cases against churches, some of them Catholic. This is not just a matter of firing for mission: the ministerial exemption already “allows any form of discrimination by religious organizations to proceed” unchallenged—even if the discrimination is for normally prohibited reasons like race, gender, or disability, and even if it is unrelated to religious mission.

In other words, churches not just theoretically but actually misuse the absolute freedom to hire and fire. As a result, this freedom is not just theoretically but actually harmful to large numbers of people (and probably to the Church as well–Jamie Manson has wondered, “who on earth is going to want to work in any religiously-affiliated institution, let alone a parish, under these conditions?”).

Here traditional Catholic understandings of civil law collide. Going back to Thomas Aquinas, we’ve believed that human law should foster religion, coerce socially destructive people into behaving themselves, and advance the common good of society. Thomas was optimistically confident that (especially in a religiously homogeneous monarchy) any law that actually managed one of these goals automatically fulfilled the others too.

Even if Thomas’ assumption had ever been justified, it no longer holds in our messy, pluralist democracy with its essential but sometimes dysfunctional separation of powers. As a case in point, Our Lady of Guadalupe v. Morrissey-Berru elevates religious freedom over restraint of destructive discrimination and over advancing the public, common good. Thus it’s a poor ruling, by two of the most traditional Catholic standards.

Still, the ruling is now law. As LGBTQ Catholics, we recognize that none of us is free from discrimination unless all of us are. What are our next moves? I propose four.

We press for transparent nondiscrimination clauses in contracts for all employees of all Catholic institutions, we create a list of institutions that adhere to them, and we boycott those that do not. Even under the expanded ministerial exemption, we can pressure Catholic institutions to give legal guarantees against unjust discrimination. [Editor’s Note: New Ways Ministry is happy to compile a list of institutions with nondiscrimination clauses. Please send the name, location, and, if possible, the text of the nondiscrimination clause to: [email protected].]
We vote for candidates who will create antidiscrimination legislation, reducing the chance that the Supreme Court will have to create law on the fly. As the editors of America argue, “we need … to elect officials who are committed to dealing with moral arguments to win legislation and not simply to win elections.”
We continue to understand, repent, and correct our own role in injustice. As LGBTQ folk we may empathize with victims of discrimination, but if we are white, or male, or fully abled, or economically advantaged, we also participate in systems of oppression and must confront that.
We lament. In this moment in the United States, religious freedom is undeniably, legally opposed to freedom from employment discrimination for gender, race, sexual orientation, ability, age, whistle blower status, and any number of other usually protected qualities. We can’t see a way to combine the two. It is a moment for uniting our voices to cry out to God, for wisdom and for all victims of discrimination:

Awake! Why are you asleep, O Lord?

Arise! Cast us not off forever!

Why do you hide your face,

forgetting our woe and our oppression?

For our souls are bowed down to the dust,

our bodies are pressed to the earth.

(Psalm 44:24-26)

For more information about establishing nondiscrimination clauses at Catholic institutions, click here. For more information about opposing employment discrimination against LGBTQ people at Catholic institutions, click here.

—Cristina Traina, Northwestern University, July 21, 2020