"Religious liberty" as employment insurance for lawyers

Really, that's all I can make of this screed from the Catholic News Service which turned up in the National Catholic Reporter.

Some people want ordinary Catholics to be be very afraid that, since the Supreme Court affirmed a right to civil gay marriage, their very faith and their churches will be threatened.

The landmark decision in Obergefell v. Hodges won't just ensure that states cannot deny marriage licenses to same-sex couples, said John Breen, a law professor at Loyola University Chicago. It could also have a ripple effect on the tax-exempt statuses of religious organizations; the rights of business owners to deny services based on religious beliefs; the ability of religious colleges to deny married student housing benefits; the right of religious organizations to hire for mission; the participation of ministers in civil marriages; the right of religious adoption agencies to decline to place children with same-sex couples; and much more.

"It's not the end; it's the beginning," Breen told Catholic News Service. "It will be pushed further. I have no doubt that all of these challenges are coming."

... Even publicly declaring opposition to same-sex marriage could put Catholic organizations like colleges at risk, added Daniel Mark, a law professor at Villanova University in Pennsylvania. The 1983 Supreme Court decision in Bob Jones University v. United States enabled the IRS to revoke the tax-exempt status of a religious university whose policies are contrary to a compelling government public policy, such as eradicating racial discrimination.

"This is the obvious place where this is going," Mark said. "I think we should expect very direct challenges in the courts. It could happen quite soon. Religious institutions are very dependent on this significant monetary benefit. If they lose that, I think a lot of institutions will go under."

... Breen and Mark say the government can't compel a Catholic priest to celebrate the sacrament of marriage for a same-sex couple, but it's only a matter of time before the first lawsuit is filed against a parish that refuses to rent out its church for a civil ceremony.

Well, maybe. But I doubt it. Nobody is mentioning that it took decades after policies against racial discrimination in publicly supported schools were put in place before the I.R.S. sanctioned Bob Jones University. BJU had notoriously forbidden interracial relationships between students. For all the sound and fury, Bob Jones U. still goes strong with 2800 students today. And the I.R.S. has not, that I know of, gone after any other institution that asserts a religious right to practice racial discrimination. Yet the case looms large in the imaginations of some people. The case was a major impetus for the organization of our religious right-wing, as historian Randall Balmer has documented.***Today the NCR reports on a real (not theoretical) case in which a "religious freedom" claim has run into a legally-affirmed marriage. An all-girls Catholic school in Milton, Mass. hired a fellow to run their food services -- then quickly un-hired him when they learned he had a "husband." So far, the dismissed near-employee is winning in court. It's awfully hard to show that the guy who buys and oversees cooking of provisions is performing a religious role. Maybe this should be a spiritual task (I could perhaps make that argument), but that is not what is being argued. The school wants to "govern their internal affairs free of state interference."

Our employment laws have tangled up marital status with our rights at work. We receive health insurance, many other benefits, and are taxed according to our marital status. I think this is bizarre -- why should forming a durable pair-bond determine whether a person can go to a doctor? But that is where our history of piecemeal development of social policy has left us. So the legal recognition of same-sex marriages immediately bleeds over into employment law.

And the employment law that confronts institutions and individuals is largely a state by state matter. In some places, members of LGBT couples are fully protected by statute. In others, we have nothing but what some court decides. There are an awful lot of gray states on that map which can be taken to be indifferent/hostile to gay and gender identity employment protections. And even where we have wide protections as this Wikipedia map indicates, there's plenty of scope for litigation, as in this Massachusetts case.

If we had an effectual Congress (probably requiring a majority of Democrats but that may change), we'd have a federal Employment Non-Discrimination Act (ENDA). But for the time being, that's not happening, so anticipate more lawsuits, more ginned up fear of largely hypothetical threats, and more employment for lawyers.