WWJD: What Would the Justice System Do?
A legal thought experiment surrounding the debate between religious freedom and LGBTQ rights
The Scenario
A True Story
Jane Morffi was a first-grade teacher at Saints Peter and Paul Catholic School, where she had been working for almost seven years. On February 8th, 2018, she was fired from her position the day after she returned from her wedding that occurred in the Florida Keys. A representative from the school indicated that Morffi had broken a contract with the school for having married a same-sex partner, thus resulting in grounds for termination of employment. Morffi posted on Instagram: “This weekend I married the love of my life and unfortunately I was terminated from my job as a result. In their eyes I’m not the right kind of Catholic for my choice in partner.” Her post gained national notoriety and went viral. The letter that parents received explaining Morffi’s termination did not note the specific reason but referred to it as a “difficult and necessary decision.” Parents were outraged because their children lost a beloved teacher, and many parents indicated that they did not know or care that Morffi was gay.
In 2015, a judicial ruling legalized same-sex marriage in Florida, though the state does not have a law prohibiting discrimination on the basis of sexual orientation. After the judicial ruling, the Archbishop of Miami’s Catholic archdiocese sent a message to all church employees indicating that all persons employed by the church are expected to follow Catholic teachings, including the opposition to same-sex marriage. While the Miami-Dade County has an ordinance that protects LGBT residents from discrimination, religious institutions are exempt from certain provisions.
Explanation of the Project
In this project, I will be presenting two sides to the legal argument of “Was Sts. Peter and Paul Catholic School’s firing of Jane Morffi legal and justified?” and conclude with a mock judicial opinion to decide the case. The current legislation in Florida very explicitly allows for the religious institution’s right to fire employees on the basis of not following Catholic strictures and does not include sexual orientation as a protected identity state-wide, so I will be arguing this case under the hypothetical situation that a proposed bill in the Florida Congress, HB 347, has been passed through Congress and approved to become part of the State’s legislation. In this bill, discrimination based on sexual orientation (and gender identity) would be banned in the workplace, among other settings in which discrimination is prohibited.
The Bill proposes revisions to the previously existing civil rights legislation as follows (the bolded portions indicate what has been added and revised):
(3) It is an unlawful employment practice for a labor 231 organization: 232 (a) To exclude or to expel from its membership, or 233 otherwise to discriminate against, any individual because of 234 race, color, religion, sex, pregnancy, national origin, age, 235 sexual orientation, gender identity, handicap, or marital 236 status.
(9)(a) This section does not apply to any religious 291 corporation, association, educational institution, or society 292 that conditions opportunities in the area of employment or 293 public accommodation to members of that religious corporation, 294 association, educational institution, or society or to persons 295 who subscribe to its tenets or beliefs.
The Thought Experiment
Jane Morffi v. Saints Peter and Paul Catholic School, 2018
The Plaintiff’s Argument
The current legislation that allows for the termination of Ms. Morffi’s employment on the basis of her sexual orientation is unconstitutional and unjustified.
The first point on which we challenge the legality of this action is the unconstitutionality of the legislation that permits this action. Section (9)(a) of HB 347 which exempts religious institutions from following the civil rights protections is too broad to be a good and just law. This section effectively allows religious institutions to claim their personal beliefs as a reason to discriminate people based on any characteristic they choose, as the wording in the bill doesn’t even specify that they are only exempt from those parts of the section that directly contradict their belief system. A religious institution that employs people in positions that do not have religious obligations should not be able to force those individuals to adhere to every tenant of their faith. It violates the Equal Protection clause of the 14th Amendment ensuring that all citizens are granted equal protection under the law. Furthermore, the federal legislation Title VII ought to include sexual orientation as a protected identity under the Civil Rights Act. In this day and age is it simply ridiculous that this is not yet a federally protected identity.
A number of scholars offer support as to why it is problematic in the first place that the church claims their beliefs are valid grounds for firing someone based on a homosexual relationship. John D’Emilio argues in his essay “Capitalim and Gay Identity” that “lesbian and gay identity and communities are historically created, the result of a process of capitalist development” (1983: 109). He rejects the myth that sexual orientation is fixed and determined at an early age. The conditions of capitalism which favor heteronormative nuclear families have also allowed for the construction of homosexual communities and openly gay identities. D’Emilio also argues that “human sexual desire need no longer be harnessed to reproductive imperatives, to procreation” (1983: 110). As society allows for the exploration of new identities, more and more people are encouraged to come forth and identity with the homosexual communities, whose behavior clearly does not contribute to procreation, demonstrating how sexuality and procreativity are no longer necessarily linked. We argue that a capitalist society that produces these communities ought to be responsible for protecting them, and this includes protection under the 14th Amendment and Title VII.
In “Christian Brotherhood or Sexual Perversion?” George Chauncey explains a detailed history of the indistinct boundaries between what has historically been considered sexual and nonsexual relationships, particularly as it relates to homosexuality. Significantly, the church is one of the parties who was involved in this confusion. In 1920, the churchmen and the sailors “disagreed about how to distinguish between a ‘sexual’ and a ‘nonsexual’ relationship; the navy defined certain relationships as homosexual and perverted which the ministers claimed were merely brotherly and Christian” (1985: 189). There was an inability to appropriately differentiate between what constituted a homosexual relationship that was prohibited rather than a close relationship of permitted “brotherhood.” This was further complicated because not all those who participated in same-sex sexual contact were considered “queer” themselves. That is, the action did not define the person. In fact, similar to how D’Emilio described the capitalistic creation of homosexual communities, some sailors in Chauncey’s article described never having participated in a homosexual relationship prior to the Navy, and they suspect they would never had done so had it not been for their membership in the community. These themes of societally constructed identities and confusion between societal and church definitions of homosexuality contribute to the argument that this ambiguity means it is wrong to permit any form of sexual orientation discrimination on the basis of religion.
These sentiments from D’Emilio and Chauncey are further supported by an essay from Justin Lee, an author and a gay Christian man. He and his friend Ron Belgau created a blog post series entitled “The Great Debate,” in which they presented their opposing ideals on the role that homosexuality has within the Christian tradition. In Justin’s essay, he argues that God praises any relationship as long as it is loving, monogamous, and Christ-centered, no matter the gender of the partners. He shuns the Traditionalist View that seems to blindly accept the word-for-word prohibition of homosexuality in the Bible, and he identifies a number of other biblical passages that simply have no common sense meaning or practical application given our culture today. Justin argues that the cultural context at the time of the Bible’s creation was integral in making some of these religious laws, and given how our culture has significantly changed since then, so too ought our rules. He also explains that rules are not steadfast; for example, many people would agree that killing someone would constitute a sin or a heinous crime. However, there are instances — such as self-defense — in which killing another person could be justified. When a relationship is built solely on mutual love, trust, and faith in God, there should be no reason why it cannot be blessed in the eyes of God, even if the two partners are of the same gender, as the importance of a Christ-centered relationship trumps any qualms about homosexuality. Based on this analysis, Ms. Morffi actually did the right thing by marrying her partner in order to live a godly life in holy matrimony, and her marriage should be celebrated by the church, not shunned by it.
Connecting these themes back to the 14th Amendment and Title VII, it is evident that Ms. Morffi ought to be able to marry whomever she pleases and maintain her position of employment within the catholic school. Any laws that allow the termination of employment on the grounds of her sexual orientation ought to be prohibited based on historical precedent and constitutional protections.
The Respondent’s Argument
We believe that the decision of Saints Peter and Paul Catholic School to terminate Ms. Morffi’s employment was completely justified and legal, particularly when you consider the current legislation and precedent.
Florida HB 347 very clearly states that the section banning discrimination against sexual orientation “does not apply to any religious corporation, association, educational institution, or society that conditions opportunities in the area of employment” (9)(a). Thus, it is thoroughly within the right of the catholic school to “expel from its membership” anyone who does not comply with their belief system, and their ability to practice their religion is protected by the First Amendment.
Furthermore, Ms. Morffi explicitly signed a contract stating that she would follow the rules of the church in order to maintain her employment. She was not being discriminated against because of her identity, but because she acted in a way that is not in accordance with the Catholic teachings; that is, same-sex marriage. This system of beliefs is explained in detail by Ron Belgau, founder of Spiritual Friendship and an openly gay but celibate Christian. Ron’s essay contributing to “The Great Debate” with his friend Justin supported the belief that God calls homosexual people to a life of celibacy. Though he admits that he writes not as a theologian nor as a judge, he explains his own personal research and understanding of God’s will.
Ron develops his argument discussing what the Bible says about sexuality and moral relationships overall. That is, God condemns sins of the flesh, and within the Bible there are many passages that include the act of homosexuality as a sin of the flesh. By sinning “against his own body,” the sexually immoral person separates himself from the Holy Spirit when he succumbs to sins of the flesh and acts against God’s love. In Paul’s letter to the Corinthians he describes all of the sinners who will go to Hell, and among them is “practicing homosexuals,” or “active homosexuals,” depending on the translation (I Corinthians 6:9–11). Not homosexuals alone, but those who practice and are actively homosexual are condemned. They are not condemning the sinner, but the sin of the flesh that goes against God’s will. To be free from the sin means free from the sinful acts of the flesh. Though Jesus himself makes no remarks condemning homosexuality, when he describes the covenant of marriage, he solely refers to man and wife together as one. God created the male and female as they are to procreate together in his image — nature’s perfect match. To go against the will of God’s love is to separate yourself from the spirit and the kingdom of God. Of course, homosexuality is not the only sin of the flesh that is condemned, as adultery, fornication, and prostitution are included on this list. While Jesus warns against impure thoughts, it is the actions of the flesh that are condemnable in the eyes of God. This ties in with a source mentioned by the plaintiff — Chauncey’s description of what was considered homosexual in the World War I era. Chauncey describes in his essay the concept that the act and the identity are not interchangeable. Though Chauncey refers to men who identified as straight while participating in homosexual activity as opposed to homosexual men who choose to opt out of the activity, there is a precedent established that the separations of act and identity is possible and commonplace.
Following this, the church is saying that there is nothing wrong with the homosexual person, but acting on these feelings is sinful, and thus forms the basis of grounds for termination from a Christian employer. They condemn the act, not the identity, so they didn’t discriminate against her and fire her for being gay; they fired her because she violated her employment contract to follow the Catholic teachings by marrying someone of the same gender.
Judicial Opinion
Ruling: In favor of Morffi, I agree that the current law allowing for religious exemptions to the protection against discrimination is unconstitutional, and it was wrong for the school to have fired her based on her sexual orientation.
First, the section (9)(a) of Florida HB 347 which precludes religious establishments from being required to follow the civil rights legislation is unconstitutional. While it is true under the First Amendment that the government cannot prohibit the free exercise of religion, there are still limitations as to what is allowed. Case law as early as 1878 holds that while individuals can have any number of religious beliefs without being persecuted, there is not an unlimited allowance to religious action. In Reynolds v. United States, the court upheld a conviction for bigamy despite arguments that it was his religious belief. The court argued that “the legislative powers of the government reach actions only, and not beliefs” (Reynolds v. United States). While the government does not have the power to restrict religious beliefs, they do have the ability to restrict actions based on those religious beliefs. The Establishment clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause should mean that congress cannot preclude religious institutions from adhering to the law of the land. The government should not allow avenues for its citizens to be harmed, and a religious practice that involves harming another person (such as employment discrimination) is not supported under the First Amendment protection of free exercise of religion. This case is also different from cases where employers cannot hire someone due to a physical need or other requirement of a job, such as needing the ability to see if someone is to be employed to drive a forklift. In this case, one’s sexual orientation does not in any way have an impact on an individual’s ability to teach, even within a religious institution.
Section (9)(a) also violates the 14th Amendment’s Equal Protection and Due Process. The Equal Protection clause explains that the law cannot “deny to any person within its jurisdiction the equal protection of the laws.” By not including sexual orientation as a protected identity, and by exempting religious institutions from following these civil rights protections, they are denying citizens equal protection of the law. The 2015 Supreme Court case Obergefell v. Hodges cites the 14th Amendment as the main rationale behind their landmark decision legalizing gay marriage nationwide. While the amendment means that religious institutions also have equal protection under law, in this case, the protection of Ms. Morffi’s right to employment without discrimination based on sexual orientation does not infringe upon the religious belief protections of the First Amendment Free Exercise Clause. Thus, the 14th Amendment is in favor of prohibiting employment discrimination based on sexual orientation.
On February 26, 2018, the 2nd US Circuit Court of Appeals “ruled that a federal law banning sex bias in the workplace also prohibits discrimination against gay employees, becoming only the second court to do so” in Zarda v. Altitude Express (Muñoz and Kalteux 2016). In this case, the court argues that federal law Title VII must include sexual orientation as a protected identity under the law. Their rationale focuses on considering discrimination based on sexual orientation as an offshoot of sex bias. This precedent was established in Price Waterhouse v. Hopkins where the court’s decision said that gender stereotyping counts as gender discrimination. In fact, “Price Waterhouse arguably opened the door for claims that discrimination based on sexual orientation constituted prohibited ‘sex’ discrimination under Title VII” (Muñoz and Kalteux 2016). Sexual orientation discrimination is based on heteronormative beliefs that individuals of a certain gender ought to be attracted to the “opposite” gender. Individuals who are not straight are discriminated against because they do not satisfy these heterosexist ideals of gender roles. Therefore, this type of discrimination is a variation of gender bias and is illegal under Title VII.
Another previous supreme court case addresses the contention between church and state. In Trinity Lutheran Church of Columbia, Inc. V. Comer, a church brought forth a suit claiming discrimination because they did not receive a state grant from the Missouri Department of Natural Resources for playground resurfacing based on the sole fact that they are a religious institution. In the end, the Supreme Court ruled 7–2 in favor of the church, allowing them to receive the public grants. The majority opinion explains part of their rationale:
The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.” McDaniel v. Paty, 435 U. S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972)).
Trinity Lutheran Church of Columbia, Inc. V. Comer 582 U. S. 6 (2017).
In this quote, they explain that the Free Exercise clause prohibits unequal treatment to individuals based on their religious beliefs. If the church in this case is allowed to be a recipient of public funding in order to protect equal treatment, the church should be held to the same standards in return. That is, they shouldn’t be able to discriminate against someone based on their “religious status.” The church should not have the right to dismiss someone from their staff when the reason for their dismissal is not remotely related to the work they are doing. Though Ms. Morffi was a teacher at a religious institution, this does not necessarily make her a religion teacher, and even if she were a religion teacher, her sexual orientation does not prohibit her from fulfilling the duties of a teacher at a religious institution.
Thus, following Constitutional Amendments I and XIV, and the case law precedent established in Reynold v. United States, Obergefell v. Hodges, Zarda v. Altitude Express, Price Waterhouse v. Hopkins, and Trinity Lutheran Church of Columbia, Inc. V. Comer, it is unconstitutional for a law to exist that allows religious institutions exemptions from civil liberty protections, and therefore, it was unlawful for Ms. Morffi to have been fired based on her sexual orientation.
Final Note
I would like to acknowledge the reality of what would most likely happen if a case like this were actually to go to the Supreme Court in our current political climate. The judicial opinion I wrote would likely not represent the majority opinion in an appellate court of justices, though it would be included in the official case brief as a dissenting opinion. I intentionally chose to support this side in my decision in order to show how a legal argument could be formed to argue on behalf of such an opinion, even if it is not what would likely be the result of a case ruled in front of a panel of justices.
References
Abbott, Matt. 2018, February 15. “Miami Catholic School Fired Gay Teacher — Did the Right Thing.” CNSnews.com. https://www.cnsnews.com/commentary/matt-abbott/miami-catholic-school-fired-gay-teacher-did-right-thing.
Belagu, Ron. 2003. “The Great Debate.” https://ronbelgau.com/great-debate/.
Chauncey, George. 1985. “Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era.” Journal of Social History 19 (2): 189–211.
D’Emilio, John. 1983. “Capitalism and Gay Identity.” pp. 100–113 in Powers of Desire: The Politics of Sexuality. Ed. by Ann Snitow, Christine Stansell, and Sharon Thompson. New York: Monthly Review Press.
Florida Congress. HB 347, Proposed Legislation: “Florida Competitive Workforce Act,” 2018. https://www.flsenate.gov/Session/Bill/2018/347/BillText/Filed/PDF.
Lee, Justin. 2003. “The Great Debate: Justin’s View.” http://geekyjustin.com/great-debate/.
Muñoz, Shane T. and David M. Kalteux. 2016. “LGBT, the EEOC, and the Meaning of ‘Sex.’” The Florida Bar Journal, Vol. 90, №3. https://www.floridabar.org/news/tfb-journal/?durl=%2FDIVCOM%2FJN%2FJNJournal01.nsf%2F8c9f13012b96736985256aa900624829%2F421b4bcaa1db2b1685257f640077e92b%21OpenDocument.
Obergefell v. Hodges, 576 U.S. ___ (2015).
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Reynolds v. United States, 98 U.S. 145 (1879).
Trinity Lutheran Church of Columbia, Inc. V. Comer, 582 U. S. ___ (2017).
U.S. Constitution. Amendment I.
U.S. Constitution. Amendment XIV.
Wootson Jr., Cleve R. and Moriah Balingit. 2018. “’Not the right kind of Catholic’: Private schoolteacher fired days after same-sex wedding.” The Washington Post. https://www.washingtonpost.com/news/education/wp/2018/02/11/not-the-right-kind-of-catholic-private-school-teacher-fired-days-after-same-sex-wedding/?utm_term=.738f4c8683f9.
Zarda v. Altitude Express, Inc., 15–3775 2d Circuit (2018).
