Fontbonne and the First Amendment  

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The First Amendment protects those with whom we disagree. Most people have no problem allowing speech with which they agree. But ask them if they are comfortable allowing the Nazis to parade through Skokie, Illinois, or an opponent of the Vietnam War wear a jacket with “F*ck the Draft” printed on it in a courthouse, or letting Ann Coulter speak at University of California at Berkeley, and you likely find many who think such speech should not be allowed.

Legally, however, the First Amendment protects a speaker’s right to present his or her views in a public forum regardless of the merits of the content. The genius of the First Amendment is the recognition that limitations on speech are impermissible not because all speech is inherently good, but because we don’t want the government to decide which speech is worthy of protection.

So, too, with religious freedom, also protected by the First Amendment, and by the law of Massachusetts. The “merits” of the religion in question are generally irrelevant, and for an obvious reason: Just as civil courts and legislatures cannot tell us which speech is good, they are utterly incompetent to judge the quality and legitimacy of someone else’s religious beliefs. Are Quakers “really” pacifists and legitimate conscientious objectors? Is a Jewish prisoner “observant enough” to request special meals? Does Islam “really” require that man to grow a beard when so many other Muslims don’t have one? These are precisely the kinds of questions we don’t want the government, in the form of a legislature or a judge, answering. Thus we recognize (and generally protect) the Quaker conscientious objector, the Jewish prisoner requesting a kosher meal, and the Muslim whose beard would otherwise violate a workplace grooming standard without delving into the legitimacy, theologically or personally, of the belief in question. (Imagine a prison warden telling a Muslim or Jewish prisoner: “hey buddy, is that ham sandwich really going to kill you?”)

Things are different, apparently, when it comes to Catholics, according to a recent Massachusetts case. Fontbonne Academy, a Catholic girls school in Milton, withdrew an offer of employment made to a man married to another man, a marriage contrary to Catholic doctrine but recognized under Massachusetts law. Outside of the religious context, the decision to withdraw the offer would clearly be employment discrimination based on sexual orientation or gender. Fontbonne Academy, however, is a Catholic school, and determined that hiring an employee in a same-sex marriage would violate its institutional religious mission. For Catholics, to be human is to sin. And, thus, everyone Fontbonne hires (not just a man or woman in the same-sex relationship) is, by definition, a sinner. But same-sex marriage, being a permanent commitment to a relationship considered invalid by the Church, presents a uniquely vexing moral problem with respect to hiring at Catholic institutions because the sin in question is ongoing and public.

Fontbonne thus sought to invoke the religious freedom protection provided by Massachusetts law, as well as the First Amendment. But, according to Superior Court Judge Douglas H. Wilkins, Fontbonne’s religious beliefs did not qualify for protection because: (a) Fontbonne served and employed non-Catholics as well as Catholics; and (b) in his view, Fontbonne “retained control over its religious message” because the prospective employee, a food service manager, would not teach or advocate for same-sex marriage.

Think about that for a moment: A judge telling a religious institution what will and won’t hinder its “religious message” (and even worse, deciding that serving people of other faiths somehow weakens a claim for religious protection). What good is religious freedom if the state gets to decide what actions will and won’t undermine an institution’s religious purpose?

Personally, I would be utterly unfazed if my daughter’s Catholic high school had a cafeteria manager who was in a same-sex marriage, and disappointed if he or she were fired for that reason alone. But the Massachusetts court’s hubris in second-guessing a religious institution’s invocation of religious purpose poses an intolerable threat to religious freedom.

Ask yourself this question: Would you feel comfortable with the court drawing similar lines determining what furthered the religious message of an institution with respect to an Islamic School, a Jewish Community Center, or a Buddhist Temple? I suspect most people would be more cautious drawing lines for faiths they are less familiar with, because the inability to judge what is or isn’t central to a faith you know little about is obvious. But a judge is no more entitled to evaluate the validity of religious beliefs he is familiar with than ones he is not. Otherwise, the judiciary, as happened with Fontbonne, is ruling on whether certain religiously motivated practices are “necessary” to further the faith – a role best suited for theologians, not judges.

With respect to freedom of speech, courts have learned that views held by the minority sometimes require the most protection – the freedom of popular or noncontroversial speech is rarely threatened. That lesson must continue to be extended to religion – a judge (and even a significant portion of the laity) might disagree with Church doctrine with respect to same-sex marriage, but religious institutions are entitled to beliefs that are counter-cultural. Otherwise, the freedom of religion is hollow, and is simply the freedom to follow the crowd.

Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds. Read his previous columns here.