It's rare for the U.S. Supreme Court to produce a ruling backed with a 9-0 vote, especially on a church-state issue these days. However, that's what happened in 2012 with the case called Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission, et al (.pdf here).
The key was that the court said it was "extreme" and "remarkable" that the government thought it was wrong for religious groups to take doctrine and beliefs into account when hiring and firing their leaders. Thus, the court affirmed a "ministerial exception" that protects religious organizations from employment discrimination lawsuits.
Ah, but what is a "minister"? This is a crucial question that is affecting some emerging conflicts linked to gay rights and religious education, especially in Catholic schools.
The Hosanna-Tabor case focused on a teacher in a Lutheran school -- a school that blended church teachings into everything that it did. Thus, this teacher was also teaching doctrine, in word and deed. The school viewed all of its teachers this way.
That brings us to this Associated Press update on a related -- kind of -- case in Boston. The headline at Crux was, "Gay man settles with Catholic school that pulled job offer." The key is that we are looking for a Hosanna-Tabor-shaped hole in this story. Here's the overture:
BOSTON -- A Boston man who had a job offer from an all-girls Catholic high school rescinded after administrators learned that he was in a same-sex marriage has settled a lawsuit with the school.
The Boston Globe reports 45-year-old Matthew Barrett’s confidential settlement with Fontbonne Academy comes nearly five months after a Massachusetts judge found the Milton school had discriminated against Barrett. ...
Ben Klein, Barrett’s attorney, says the settlement means that the December Superior Court ruling against the school will stand, establishing a legal precedent that employers have no religious justification for discriminating on the basis of sexual orientation.
Wait a minute. The court said that doctrinally defined religious ministries such as schools have no religious justification for taking doctrine into account when hiring and firing? Really?
If you know about Hosanna-Tabor, then you know that something is missing in that statement. You know, of course, that the lawyers involved in this case know about Hosanna-Tabor. The question is whether the reporters and editors covering this case, and many like it, know the facts on Hosanna-Tabor.
So how does one blend that "no religious justification for discriminating" statement with the language that immediately follows it in this news report?
In December 2015, a superior court judge rejected Fontbonne’s claim that hiring Barrett would infringe on its constitutional rights because it views his marriage to a man as incompatible with its religious mission.
The judge said Barrett’s duties as a food services director did not include presenting the teachings of the Catholic Church.
Put these words in bold: "Did not include presenting the teachings of the Catholic Church."
“As an educational institution, Fontbonne retains control over its mission and message. It is not forced to allow Barrett to dilute that message, where he will not be a teacher, minister or spokesman for Fontbonne and has not engaged in public advocacy of same-sex marriage,” Norfolk Superior Court Judge Douglas Wilkins wrote.
Now, does this judge's language sound familiar? Can you say Hosanna-Tabor?
Thus, we have a crucial question: Did the journalists who handled that earlier Ben Klein quote mangle what he said, or did the attorney intentionally ignore the fine details of the Massachusetts court decision?
Hey AP, I have questions about this statement as well:
The judge also found that a religious exemption to the state anti-discrimination law applies only if a religious organization limits admission to people of a certain religion. Fontbonne is open to students and employees of all faiths, with the exception of its administration and theology faculty.
Wait a minute, again. Did the judge say that all of the school's students and employees had to be the "same faith" as in they have to be Catholics? Or is the issue whether, when joining this voluntary association, they were asked by Catholic leaders to affirm, or to agree not to oppose, the mission and faith of the school?
There's a big difference in those two concepts.
Which brings us back to a key question for religious educators: In this day and age, do you need to have a solid, detailed doctrinal and lifestyle covenant that is signed by all members of your faith-based voluntary association?
Or to be more specific, there is a question that AP editors needed to ask (and editors at The Boston Globe, as well) when covering this story: While Fontbonne leaders claimed that hiring Barrett would undercut their mission, had he -- this is a simple question of fact -- been asked to sign a doctrinal or lifestyle covenant as part of the hiring process? Had the school leadership argued, in writing, that all of the members of its team were charged with defending (or at the very least not attacking) the faith?
What I am hearing is that some Catholic schools do this and some do not. Want to predict that more will use these kinds of documents in the future?
Journalists, this means that we can expect at least two trends to develop out of this -- trends that could shape lots of local, regional and even national stories. Here are two questions to ponder:
(1) Will more Catholic schools choose to become more explicitly Catholic in all they do? If so, in light of plunging Catholic birthrates in America, how will these schools survive financially, and find qualified teachers, unless attached to vibrant faith communities that truly embrace a doctrinally Catholic mission?
(2) If these Catholic educators attempt to create a kind of liberal Protestant-Catholic compromise model -- think an Episcopal via media on moral theology -- will that compromise with the Sexual Revolution please (or perhaps anger) many orthodox Catholic bishops? How will the bishops respond?
Journalists, I will say this again: It's time to ask what documents the leaders at religious schools in your area -- at all levels, from pre-school to universities -- are requiring students, parents and employees to sign. Who is supposed to affirm or defend the faith?
Get ahead of this story. It's not going to go away.