A Narrowly Wrong Decision
Supreme Court upholds religious schools’ right to hire, fire religious teachers. That’s nice. Except the teachers being fired are not teachers of religion.
They teach subjects that have nothing to do with religion. And it is not reasonable for them to be required to be “ministers” of the Catholic Faith by following teachings of a religion to which they do not adhere. At the same time, Catholic priests, deacons, and theology teachers who violate this same principle by public expressions contrary to the Catholic Faith are not fired. The real ministers violate Catholic teaching publicly and keep their jobs, while gay persons who marry, thereby publicly acting contrary to Catholic teaching, are fired. They are non-Catholics being forced to adhere to the Catholic Faith, in their public behavior, and being denied equal treatment under the law, in order to keep their jobs.
The Supreme Court has now denied the right to marry to gay persons, when they are teachers in Catholic schools. This decision is a contradiction. Why doesn’t SCOTUS next overturn the ruling in favor of same-sex marriage? Is it a legal right, or not?
My beliefs are in accord with the teaching of the Magisterium. But I also believe that, in a pluralistic society, the Church and Catholic institutions like schools do not have the right to compel adherence to Catholic teaching by threating teachers with firing, if they exercise a legal right. Those gay persons who, acting according to a sincere but mistaken conscience, decide to legally marry should not be punished by their employer for refusing to act according to a teaching they do not accept in conscience.
Law and Constitution
The Civil Rights Act of 1964 requires equal employment opportunity (Title VII) and prohibits discrimination in employment based on sex. Title VII also “prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.” 
If a teacher in a Catholic school legally marries a person of the same sex, and is then fired by the school because of that married, this constitutes discrimination against an employee due to his or her association, in this case by marriage, with another individual of a particular sex.
In addition, the Fourteenth Amendment provides equal protection under the law to all U.S. citizens. Since the laws of the United States permit persons of the same sex to marry, Catholic schools should not be permitted by the courts to fire them for exercising that legal right.
If a private school fired a teacher for converting to Catholicism, that would constitute discrimination in employment based on religion. And the Church in the U.S. would assert this legal argument to protect that person’s job. So it is hypocrisy for the U.S. Bishops to fire teachers in Catholic schools in violation of the same legal principle.
Some Catholic Bishops in the U.S. claim that all teachers in a private Catholic school fall under a ministerial exemption, whereby ministers of a religion can be hired or fired based on criteria that would be discrimination for other types of employment. For example, the Catholic Church may refuse to “hire” women as priests or deacons. I have no quarrel with that particular exemption.
However, it is lying, plain and simple, to claim that teachers, of any subject other than religion or theology, in a Catholic school are all ministers. A math teacher has no ministerial role. At Mass, the history teacher does not wear robes and stand next to the priest or deacon. There is no Sacrament of holy Orders for teachers of chemistry. And the idea that persons teaching a wide range of subjects other than religion in a Catholic school are ministers is absurd. It is a blatant lie being used to discriminate in employment against gay married persons and to keep the Church from being required to adhere to reasonable and fair laws and constitutional amendments.
Teachers in Catholic schools are not ministers. They have no ministerial role in the diocese or parish. They have no ministerial role in the school. They do not meet with the Bishop to discuss the teachings of the Church in that diocese. They have no role advising the Bishop or the priests of the diocese. They do not have any special role at Mass or at other services in a church. They have no role of teaching, authority, or leadership within the diocese or parish. They wear no special vestments. They do not lead prayers. They do not teach or preach on religion. They are not consulted by anyone, not even children, on religious questions. And they cannot be required to live celibately, as priests and unmarried or widowed deacons are required. In no way, shape, or form do teachers of non-religious subjects in Catholic schools fit the term minister or ministerial exemption.
But the Bishops make this false claim in order to be able to fire teachers who marry someone of the same sex. Since this claim is false, this type of firing is contrary to civil rights law. It is discrimination in employment based on the association by marriage of the employee with a person of the same sex. It is a denial to the gay employee of equal rights under the law. Straight employees may marry, but gay employees may not.
And it is not a valid legal argument to say that the Church does not accept the validity of a same-sex marriage. For schools permit employees who are Catholic to divorce and remarry, in a remarriage which is contrary to Catholic teaching, without firing them. This second marriage is also not valid under Catholic teaching.
Another basis for this firing of teachers who marry a person of the same sex is that the person signed a legal employment contract. By marrying a person of the same sex, the teacher violates that contract by public behavior contrary to Catholic teaching, something they agreed not to do. Is it not fair and legal to make a contractual agreement with teachers? No. Not when the agreement requires the teacher to give up a legal and constitutional right in order to have a job. “You can’t work for us, unless you agree to give up your legal right to marry and your legal protections under civil rights law and the 14th amendment to the Constitution.” No, that is not fair or legal.
The argument is that the teacher can work for a different school system, such as a public school or a private school that does not have this type of rule. But this is not a valid argument, as other employers could claim the right to discriminate based on the ability of the prospective employee to work somewhere else. Employment contracts may not compel the employee to give up civil rights in order to work there. You cannot have a teachers’ contract that prohibits marrying a person of a different race or a person with a disability. You cannot have a teachers’ contract that prohibits marrying anyone at all (enforcing celibacy on employees), as you can for priests and deacons. (Why? because teachers are not ministers.)
Requiring a gay employee to never marry a person of the same sex is, in effect, the enforcement of celibacy on the employee who is not a bishop, priest, or deacon. Of course, they are permitted by their employer, the Catholic school, to marry a person of the opposite sex. But this is not an acceptable option for a gay employee. They could cohabitate with a person of the same sex. But this behavior is also against the employment contract used by many Catholic diocese. It is public behavior, as an unmarried same-sex couple will be seen living in the same domicile, seen in public showing physical affection for one another, and will be known by neighbors, friends, family, and coworkers to be a couple.
So under the employment contract, the gay teacher has no option (which would not violate that contract by public behavior contrary to Catholic teaching) except celibacy. Enforcing celibacy on employees who are not bishops, priests, or unmarried deacons is not just or legal. The employer has no right to intrude on the private life of the employee in this very extensive manner.
Note also that Catholic schools do not fire gay teachers for cohabitating (“living in sin”) with a person of the same sex. The schools ignore this violation of their own employment contract. Then when the cohabitating couple marry, the teacher is fired. This is an arbitrary enforcement of the employment contract. “You may not do this. Okay, we’ll ignore your violation of that rule for several years, until we suddenly decide to enforce it.”
Why do Bishops fire gay teachers for marrying, but not for cohabitation? Why do Bishops fire gay teachers for marrying, but do not fire teachers for using in vitro fertilization, cohabitating with a person of the same or opposite sex, divorce and remarriage, abortion, use of contraception, etc.? Why do Bishops refuse to fire theology teachers as well as priests and deacons who teach grave errors on faith or morals? And yet they fire a gay teacher for marrying?
I believe the reason is that same-sex marriage is a hot button political issue. The Bishops wish to oppose, in a very public manner, this political decision to approve of same-sex marriage. They don’t wish to openly oppose contraception, as such a large percentage of Catholics use contraception that they would lose most of their flock if they made the faithful choose between giving up contraception and giving up membership in the Church.
Another argument under the heading of employment contracts concerns teachers who divorce and remarry. Catholic schools do not fire teachers who are divorced and who remarry against Catholic teaching. They only enforce the contractual obligation to live by Catholic teaching on the subject of gay marriage, and not on other types of public behavior contrary to Catholic teaching. This makes the enforcement of that contractual clause arbitrary and discriminatory. It is not something required of all employees, but only of gay employees.
Catholic schools often have priests, deacons, or religious as well as lay persons with theology degrees, teaching theology, ethics, and similar topics. These persons fit the description under religious exemption of ministers. And when they violate the provision of their employment contract not to act or speak publicly contrary to Catholic teaching, they are not fired. Sometimes they teach, in class, ideas contrary to the Catholic Faith. Sometimes they publicly speak against Pope Francis and against clear teachings of the faith.
More broadly, teachers in Catholic schools of diverse subjects sometimes act contrary to Catholic teaching, by cohabitation, by divorce and remarriage, by using in vitro fertilization, by supporting abortion or contraception, and in other ways. And they are not fired.
The claim that gay teachers who marry are being fired under a provision of their employment contract, which is exempt from complaints under the Constitution due to a ministerial exception, is false. For no one else is fired under that provision, no matter how openly they contradict Catholic teaching in word or behavior. The provision is therefore not a way to keep teachers from negatively influencing students by their public contradiction of Catholic teaching. Instead, it is a way to prevent the decision of the Supreme Court and the States and Congress allowing same-sex marriage from applying to teachers in a Catholic school. It is a deliberate attempt to deny gay teachers equal treatment under the law.
Let’s say that you live in a housing development, where commercial vehicles may not be parked in your driveway. Three of your neighbors have, for many years, parked commercial vehicles in their driveways without any action being taken against them. But when you park your commercial vehicle in your driveway, the regulation is enforced in your case, not in other cases. Courts have found that this type of unequal treatment is not legal. Even if there is a Home Owners Association agreement that everyone has signed, it cannot be applied unequally. And so it becomes null and void even when it is attempted to be applied according to the terms of the contract.
Similarly, Catholic schools do not fire their teachers for the offense of violating Catholic teaching by public works or actions, except in the case of gay teachers who marry. Therefore, that provision of the contract is not enforceable in any case.
Forced Membership in a Church
But this behavior by the Bishops is worse than violating civil rights law and the 14th amendment. It also constitutes forced membership in the Catholic Church. A Catholic school could, I suppose, only hire teachers who are believing and practicing Catholics. But they do not do so. They ordinarily hire many non-Catholic teachers. Then they require the employees to sign a contract stating they will live by Catholic teaching, even though they are not Catholic. This contract does not simply require them to refrain from contradicting Catholic teaching when they are teaching students. That would be fair and legal. Instead, the contractual clause extends itself into the entire life of the teacher, requiring them, in effect, to live as if they were Catholic whenever their behavior is public.
And in current society, social media and the ease of communication over the internet makes very much of our lives in some sense public. To follow such an employment clause, the teacher is essentially forced to become Catholic. And this is not legal or moral. You cannot require someone to change their religion in order to have a job.
“Can. 748 n. 1. All persons are bound to seek the truth in those things which regard God and his Church and by virtue of divine law are bound by the obligation and possess the right of embracing and observing the truth which they have come to know.
“n. 2. No one is ever permitted to coerce persons to embrace the Catholic faith against their conscience.”
Threatening any and all non-Catholic employees with firing, if they do not live their public lives according to the Catholic faith, is a type of coercion. Essentially, many Catholic dioceses and Catholic schools are, in a limited manner, attempting “to coerce persons to embrace the Catholic faith against their conscience.”
And that is contrary to Church law and contrary to the moral law. People have a right (Can. 748 n. 1) to seek the truth on matters of faith and morals, and to embrace that truth in accord with their own conscience.
So this type of employment contract not only violates civil rights law and the 14th amendment, but also violates Canon Law.
If a Catholic school decides to hire non-Catholics, it cannot require them to abide by Catholic teaching, as that would be forced religion, a violation of civil rights law, and a violation of the 14th amendment. And is it hypocrisy to only enforce that contract clause for gay teachers who marry and not for the myriad of other violations of the clause by many different teachers, gay or straight.
It is also hypocrisy to claim that teachers of non-religious subjects are ministers, and therefore to fire them for marrying a person of the same sex, while actual ministers — bishops, priests, and deacons — are not fired for openly teaching ideas contrary to Catholic doctrine.
* Is It Against Canon Law For Catholic Schools To Require Non-Catholic Employees To Obey Catholic Teaching?
* Are some Catholic School Teacher Contracts hypocritical, immoral, or illegal?
Ronald L. Conte Jr.
1. Wikipedia, The Civil Rights Act of 1964, Title VII