Judge: church-school can’t fire food director because he’s married to a man

In a first of its kind decision, a Massachusetts judge ruled Wednesday (December 16) that a Catholic school did not have constitutional protection to violate a state law when it rescinded a job offer to a food services employee “because he was a spouse in a same-sex marriage.”

The case, Barrett v. Fontbonne, is one of several across the country testing the ability of state laws against sexual orientation discrimination to withstand challenges from businesses and institutions that argue they have First Amendment right to discriminate.

Like many states, Massachusetts has a law prohibits employers from taking negative action against an employee or potential employee “because of the…sex…[or] sexual orientation” of that person.

Fontbonne Academy, a Catholic-affiliated secondary school for girls, hired Matthew Barrett to be its director of food services. The Academy learned Barrett was in a same-sex marriage when he filled out routine paperwork upon being hired. The form asked Barrett to identify whom the Academy should contact in the case of an emergency. Barrett indicated the school should contact his “husband, Ed Suplee.”

At a preliminary argument before Norfolk County Superior Court Judge Douglas Wilkins December 1, John Bagley, an attorney for Fontbonne, said employing a man married to another man would cause the school to convey a message of acceptance of same-sex marriage.

Just last October, a Vatican summit approved a statement reiterating its opposition to same-sex couples marrying, saying there is “no foundation whatsoever to assimilate or establish analogies, even remotely, between homosexual unions and God’s design for marriage and the family.”

Bagley claimed that, if Barrett and his spouse showed up at a school-wide party or event, students might assume the school is conveying an implicit message that same-sex marriage is acceptable to the church. Forcing Fontbonne to retain Barrett, he said, violates the school’s federal constitutional right to freedom of expression.

But Judge Wilkins, in his 20-page decision, said there is “little risk that Fontbonne’s involuntary compliance with civil law will be mistaken for endorsement of same-sex marriage.”

He noted, among other things, that Fontbonne “has a policy of non-discrimination with respect to sexual orientation” and that it “encourages debate, including on issues of same-sex marriage,” among its students. While the school did tell Barrett that it expects all employees to “model Catholic values,” that expectation, said Wilkins, “has at least enough flexibility to allow employment by those who adhere to and practice other religions and those who are in marriage between persons not baptized as Catholics.”

“As an educational institution, Fontbonne retains control over its mission and message,” wrote Wilkins. “It is not forced to allow Barrett to dilute that message, where he will not be a teacher, minister or spokesperson for Fontbonne and has not engaged in public advocacy of same-sex marriage.”

Judge Wilkins said that, although the school cites a “religious motivation” for withdrawing its job offer to Barrett, its action still violates the state’s law against sexual orientation discrimination and sex discrimination. He said the school did not qualify for an exemption available to religious organizations under state law because it accepted students of all faiths, not just Catholics.

Massachusetts law specifies that to qualify for the religious exemption the school would have to limit its student population to members of the same faith.

Ben Klein, an attorney with Gay & Lesbian Advocates & Defenders that represented Barrett, called the decision “very important” and a “first of its kind in the country.”

“We have seen across the country, since the advent of marriage equality…religious employers, particularly schools, firing employees –whether they are custodians or coaches—because of same-sex marriage,” said Klein. “This is the first court decision to rule that termination because a person is married to a person of the same sex is not justified under constitutional principles.”

“Obeying civil law does not require an employer to accept the concept of marriage for same-sex couples,” said Klein. “…A religious employer does not get a free pass to discriminate when an employee’s duties have nothing to do with religion. …A religious employer does not have a greater constitutional right to discriminate based on sexual orientation than it does to discriminate on the basis of race or sex.”

Fontbonne attorney Bagley’s office said he was not available to comment on the case and he did not return a reporter’s phone or email messages.

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