Catholic Schools Should Be Able to Fire Some Gay Teachers for Being Gay

The Eastside Catholic campus, photographed in March 2013.

Photo by Cknopik, via Wikipedia

Mark Zmuda, the popular former vice principal of the Seattle area’s Eastside Catholic High School, brought suit against his erstwhile employer last Friday, alleging that his discriminatory dismissal from the school violated numerous state laws. I’m fairly certain Zmuda will lose his lawsuit, and his defeat will represent the unhappy conclusion to an already dispiriting and regrettable incident. But  it’s worth noting that Zmuda probably should lose his case—and that, counterintuitive as it may seem, his loss will be a win for the separation of church and state.

Although Zmuda frames his case as a fairly straightforward contractual dispute, it in fact turns on a fascinating question of First Amendment law. Over the last four decades, courts have developed the doctrine of a “ministerial exception,” which allows religious organizations a freer hand in employment discrimination than secular employers. According to this legal theory, churches have a First Amendment right to exercise their religion however they please, a right that encompasses hiring and firing decisions of religious employees. If an employee ministers to a congregation, that congregation can fire him even if the reason (say, physical disability) would normally be encompassed by employment discrimination statutes.

For years, the contours of this exception were rather blurry. After all, who, exactly, qualifies as a “minister”? Certainly a priest or a pastor, but what about a Sunday school teacher, or a watchman who guards the church? As a general rule, conservatives wanted every employee of a religious organization to qualify; liberals hoped that only the highest level of the spiritual hierarchy would be eligible. Then, in 2012, the Supreme Court re-entered the debate, applying the exception to a narcoleptic teacher, Cheryl Perich, at a Lutheran school. After the school dismissed Perich on account of her narcolepsy, she sued for disability discrimination, asserting that she performed only secular functions. But the court found that, because she spent 45 minutes a day on Lutheran education, Perich was ministering to her congregation and couldn’t bring a lawsuit.

The ruling was unanimous and, apart from a nettled New York Times editorial, relatively uncontroversial. But Chief Justice John Roberts’ opinion for the court has since proved to be a problematic precedent. Although Roberts declared that 45 minutes of daily Bible study were sufficiently ministerial to qualify Perich for the exception, he declined to describe its scope or create a test for lower courts to use, insisting that such decisions cannot “be resolved by a stopwatch.” That makes it difficult to determine whether Zmuda’s religious duties at Eastside were significant enough to sink his case. Further muddling the legal analysis is the fact that while Zmuda added charges of breach of implied contract and tortious interference to his lawsuit, the Supreme Court has only applied the exception to employment discrimination cases.

But I think Zmuda should lose, no matter how bigoted and repulsive Eastside’s actions against him may have been. Zmuda was, to be sure, primarily an administrator—but he also participated in some of the school’s most sacred religious rituals. As both parties’ court filings reveal, Zmuda sometimes served as Eucharistic minister at masses and liturgies, in addition to periodically leading the entire school in morning prayer. Participating in the holiest moment of Mass is hardly an administrative function; rather, it’s a hallowed duty that reaches to the heart of the ministerial exception’s purpose. If distributing Communion does not qualify as “ministering” under the exception, then surely nothing does. And if Eastside does not want a married gay man distributing Communion to its students, it must be, under the U.S. Constitution, the school’s right to dismiss him.

That result is unsatisfying and saddening. But any other outcome presents a grave predicament for the separation of church and state. After all, the ministerial exception isn’t just designed to protect religion from government; it’s also meant to protect government from religion. To allow a court to prod and probe Eastside about the finer points of Catholic doctrine—to bring priests to the stand and question them on the catechism of sexual morality—would inextricably entangle the state in the dense thicket of church teaching. As several courts have decided, this threat of church/state entanglement is the most pressing purpose of the ministerial exception. Without it, courts would become ensnared in the fine-grained distinctions of dogma, thrusting judges and juries into an interrogation of religion and stumbling toward a violation of the First Amendment’s Establishment Clause.

This lurking peril of excessive government entanglement in Catholicism is what ultimately resolves Zmuda’s case for me. By allowing Zmuda’s lawsuit to proceed, the judge would be second-guessing religious institutions’ decisions about who can administer holy rituals. And because Zmuda’s legal claims all spring from this fundamental disagreement about sexual morality, the judge should dismiss his suit straightaway. In retrospect, Zmuda should never have taken on the role of spiritual leader, and Eastside should have immediately made clear that it would not let a married gay man near its sacred rites. But lawsuits always start at the end of the story, after the contentious cause of action is already fixed in the court record. And I’m afraid that for Zmuda, this story will have to end in heartbreak.