On the Cutting Edge: Civil Rights vs. Religious Exceptionalism
When it comes to the laws that govern us all, there are religious exemptions that most Americans agree are reasonable. During Prohibition, Congress decided to allow the use of wine in religious ceremonies; decades later, the Supreme Court determined that religious observers whose Sabbath falls on Saturday could not be penalized for not working on that day. And as GLAD Legal Director Gary Buseck says, “Who would disagree with that?”
But in recent times, there has been an aggressive push to widen the circle of exemptions – often as justification for negative treatment of LGBT people.
Religious exemptions have been written into state marriage equality laws. The as-yet-to-be-passed federal Employment Non-Discrimination Act includes an exemption that extends well beyond those in other federal non-discrimination laws. Most recently, there have been a number of high profile attempts to pass state laws with the clear goal of allowing businesses to deny service to gay people based on the owner’s religious beliefs. As we go to press, the U.S. Supreme Court is poised to decide a related question in the Hobby Lobby case. There, the owners of that very large craft store chain seek to establish a religiously-based right not to comply with the Affordable Care Act’s mandates for contraceptive care.
GLAD has decided that it’s time to draw the line and stop the expansion of justifiable discrimination.
GLAD and other LGBT legal organizations have historically sought to mediate the tension between non-discrimination and religious liberty when possible. “Religion has a very special place in American Constitutional history,” says Senior Staff Attorney Jennifer Levi. “And homosexuality has a very special place in religion.” .
Mediating that tension has not always been possible. In the 2006 case involving Sarah Blanchette, an employee of St. Anselm College, a Catholic-affiliated institution in New Hampshire, GLAD argued that federal employment law did not permit the college to fire a transgender employee regardless of its religious justification. When Sarah informed her supervisors that she would be transitioning on the job, they summarily dismissed her – and put it in writing. GLAD secured a settlement on Sarah’s behalf.
And sometimes the tension between religion and non-discrimination has erupted in the political sphere. Also in 2006, Catholic Charities of Boston decided that rather than continue complying with the state’s non-discrimination law by making its adoption services available to same-sex couples, it would get out of the adoption business.
Recently, however, as Levi says, “The calculus has changed, informed by two huge shifts we have seen. The first is that protections for gay and lesbian people – while not uniform across the board – are more robust than ever before. And the other is the change in public opinion in support of L, G, and B people.” She adds that the legal picture and religious overlay is substantially different for transgender people.
In just the past year, GLAD has heard, via GLAD Answers, from numbers of gay and lesbian people who are facing exclusions and discrimination based on asserted religious beliefs. One such intake became GLAD’s recently filed case Barrett v. Fontbonne Academy. Matt Barrett (pictured above with his husband, Ed Suplee) was offered the position of food services manager, for which he was eminently qualified, at Fontbonne, a Catholic-affiliated college prep school in Massachusetts. But when Matt filled out required paperwork and named his husband Ed Suplee as his emergency contact, the job offer was withdrawn. Matt was told that his marriage was something “we don’t believe in.”
In firing Matt from a job having nothing to do with religion, GLAD asserts that Fontbonne is in violation of the Commonwealth’s non-discrimination law. Senior Staff Attorney Ben Klein, who is representing Matt, says, “This is a case that asks the question, where is the line between religious liberty and equal opportunity?”
That is a question on which it is time for our voices to be heard.