Catholic schools — including Lafayette’s — that bar lesbian, gay, bisexual and transgender teachers may be protected from lawsuits under federal law, despite a Supreme Court ruling issued last week that shields their unemployment under civil rights law.
Two LSU law school professors said the court’s 6-3 decision, revealed Monday in Bostock vs. Clayton County, said gay employees are protected under the Civil Rights Act of 1964, known as Title VII, which forbids job discrimination for, among other reasons, sex. In writing the majority’s opinion, Justice Neil Gorsuch said that firing an employee for being homosexual or transgender “fires that person for traits or actions it would not have questioned in members of a different sex.”
The Diocese of Lafayette has required Catholic teachers to sign a morality clause that bars anyone who is gay, uses birth control or was not married in the church from teaching in the diocese’s Catholic schools, according to news reports in 2013.
Back then, an art teacher at Our Lady of Fatima Elementary School in Lafayette was not allowed to return for the following school year because she said she was gay and would not sign the clause.
Ken Levy, Holt B. Harrison professor of law at LSU, said that he believes that if a religious institution fires a gay or transgender teacher it would likely win in federal court, despite the June 15 ruling. He said Title VII provides “a big exemption for religious institutions,” who don’t have to abide by all the restrictions.
Along the same lines, he said, is the “ministerial exception” that he said essentially says religious institutions have a First Amendment right to exercise their religion and the government cannot interfere with it. Further, he said, the 1993 Religious Freedom Restoration Act gives broader leeway to religious institutions. So, for example, if a church believes gay or transgender lifestyles are wrong, it is not required to hire or keep employed workers who profess otherwise.
Levy said employees cannot “contradict the mission” of the church that employs them.
“Bostock was sweeping,” Levy said of the Supreme Court’s latest decision on the matter. But not sweeping enough to overturn morality clauses.
But, he added, employment agreements don’t necessarily permit absolute freedom. For example, he said, he holds academic tenure but his employment would be endangered if he committed a crime.
William Corbett, Frank L. Maraist professor of law and Wex S. Malone professor of law at LSU, said what would be relevant for protecting Catholic schools like those in Lafayette that might fire openly gay teachers is that the Catholic schools are used for “propagation of the faith.”
But he was less certain about the overall protection of Catholic schools that bar or fire some gay or transgender teachers. For example, he said, does it serve a Catholic school’s mission to have a Catholic math teacher?
“So it might be hard to see what teaching math would have to do with propagation of the faith,” he said.
Another exception to Bostock, he suggested, might be bona fide occupational qualifications law, which roughly means an employer must prove a requirement, such as adherence to the tenets of a faith, is needed for the success of the business. That exception, for example, permits churches to require its clergy to be of a certain faith. That exception has been interpreted to include more than clergy members but also teachers, although it does not, for example, give churches the right to discriminate against applicants of other faiths for jobs such as janitor, which don’t specifically serve the faith.
The superintendent of Lafayette’s Catholic schools, Anna Larriviere, through her assistant deferred questions about morality clauses and the court ruling to the Diocese of Lafayette’s Communication Office. The diocesan spokeswoman was on vacation.
A request for an interview with Lafayette Bishop Douglas Deshotel went unanswered.