This article was written by Chris Dolan and published by The San Francisco Examiner. Click here to read more of Chris Dolan’s biweekly articles at SFExaminer.com.
This week’s letter comes from a Catholic school teacher who has asked that his name be withheld to protect his job. He asks; “I am a catholic school teacher and recently the Archbishop of San Francisco, Archbishop Cordileone, has inserted a moralities clause in our employment handbook that requires us to affirm that we believe that homosexual relations, fornication, pornography and masturbation are “gravely evil.” The handbook also requires us to state an affirmation and belief that artificial-reproduction, conception and abortion are evil and that we agree that “the civil law should preserve the definition of marriage as the union of one man and one woman.”
They are also trying to call us missionaries in our collective bargaining agreement. I have a same sex relationship; many of my fellow teachers know I am gay. I am afraid that I will lose my job. Is this legal?
As a Catholic who has two children in Catholic school and who, as a lawyer, brings suit against employers who discriminate on the basis of sexual orientation, I feel that Archbishop Cordileone is acting in a way that is contrary to the fundamental teachings of love and acceptance which I want my children to be taught. Intolerance and hatred are gravely evil in my mind and this action is a throwback to the inquisition which serves as one of many shameful actions carried out in God’s name.
The Archbishop has a doctorate in cannon law. Apparently, he has also studied the California and Federal employment laws and is acting in such a manner as to exempt his inquisition from these anti-discrimination provisions.
In California, legal protections against discrimination on the basis of religion are provided by the Fair Employment and Housing Act (FEHA) which is codified in California Government Code. Government Code Section 12921 declares “the opportunity to seek, obtain and hold employment without discrimination’ to be a civil right.” However, FEHA only covers “employers” as defined under the Code. Pursuant to Government Code Section 12926 (a definitions section) the term “Employer” “does not include a religious association or corporation not organized for private profit.” In the case of Kelly v Methodist Hospital of Southern California, decided by the California Supreme Court in 2000, the Court addressed the question as to whether a Methodist Hospital could be sued for age discrimination. The Court held that “in light of the statute’s unqualified exemption of religious entity employers, it is clear the relevant version of the religious-entity exemption is not limited so as to permit religious entities to discriminate, provided they do so solely on the basis of religion, nor is it limited to situations where the religious faith of the employee is a legitimate requirement of the relevant job.” It stated that if the hospital was qualified as a “religious association or corporation not organized for private profit”, it would be exempt from FEHA regardless of the nature of the employee’s job or the type of discrimination it allegedly practiced.”
In response to the Kelly decision, FEHA was amended in 2002 (Section 12926.2) so as to provide protection against discrimination for healthcare workers who provided services, other than religious services, at health care facilities operated by religious associations which are not restricted to adherents of the particular religion. Section 12926.2 (f)(1) was also added in 2002 stating that a nonprofit public benefit corporation formed by, or affiliated with, a particular religion that operates an educational institution as its sole or primary activity, may restrict employment, including promotion, in any or all employment categories to individuals of a particular religion. Section (f)(2) states that, aside from requiring a teacher to be of the same religion, such entities shall be subject to the provisions of FEHA in all other respects. This, however, does not prohibit a Catholic school from terminating an individual who is acting in a manner inconsistent with the religious teachings of the organization. (Henry v. Red Hill Evangelical Lutheran Church of Tustin.)
Apparently, the Archbishop is trying to make sure he has unquestionable authority by having the teachers be identified as ministers. This, because the courts have expressly held that there is a “ministerial exception” to antidiscrimination laws based on the notion that a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution.
I applaud the courage of the teachers and students who have taken a public stance against the Archbishop’s inquisition. Unfortunately, avenues for legal intervention are limited but I have faith that a higher power will intervene and end this injustice.