Sunday, December 20, 2015
Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male. The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality. The candidate, Matthew Barrett, accepted an offer as food service director. But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer.
Mr. Barrett is represented by GLAD attorney, Ben Klein. Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law. The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage. In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.
This decision is ripe to wend its way to the U.S. Supreme Court. Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly. The group's website headline says that it "condemns" the decision. I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert. The facts are favorable for consideration of the protected class argument that was avoided in Obergefell. On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds.