A narrow win for religious freedom in Maryland

Amid ongoing controversy over the tension between religious freedom and issues involving human sexuality, the Supreme Court of Maryland, in a four-to-three judgment, handed a narrow and significant victory to faith-based institutions in Doe v. Catholic Relief Services (CRS). Catholic Relief Services “carries out the commitment of the Bishops of the United States to assist the poor and vulnerable overseas.”

The court reasoned that agency officials did not discriminate against an employee who entered a same-sex relationship in denying health care benefits to his partner because doing so would have violated Church teachings on marriage.

Facts and judicial history

CRS began when an employee (“Doe”), who was “agnostic about religion” and who worked in various capacities, entered a “same-sex marriage”. Doe sued Catholic Relief Services for discrimination after marital benefits for his partner were rescinded months after Doe has been told the partner would receive said benefits. An administrator told Doe that the original promise of benefits was a mistake because it violated Church teachings that marriage is between one man and one woman. It is unclear whether Doe, who was allowed to proceed pseudonymously due to privacy concerns, still works for CRS. Because the parties were unable to reach an agreement about a potential coverage alternative, Doe petitioned the Equal Employment Opportunities Commission, which issued him a right-to-sue letter, leading to his litigation in the federal trial court in Maryland alleging various state and federal discrimination claims.

Partially granting Doe’s motion for summary judgment, the trial judge began by rejecting CRS’ motion to dismiss based on the Church autonomy doctrine, under which “the First Amendment gives churches the ‘power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’” The court, in a scant two paragraphs, rejected CLS’ defense that the dispute involved Church doctrine, responding that it would address how the facially neutral and generally applicable statutes can or should be applied.

The court found that although CRS is a faith-based agency, it had to offer health care coverage to the partners of employees who are homosexual if their jobs are nonreligious in nature. The judge explained that CRS violated Title VII of the Civil Rights Act of 1964 which makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex” when it “revoked Doe’s dependent health insurance because of his sex—in particular, that he was a man married to another man, which CRS does not cover under its medical insurance plan.” However, the judge observed that it would be up to a jury to determine whether Doe should receive damages.

In the same order the judge directed the Supreme Court of Maryland to address three questions, all of which it interpreted in a manner supporting CRS’ position

1. Whether the prohibition against sex discrimination in the Maryland Fair Employment Practices Act … prohibits discrimination on the basis of sexual orientation.

2. Whether, under … the Maryland Fair Employment Practices Act applies to a religious corporation, association, education institution, or society with respect to the employment of individuals of a particular sexual orientation or gender identity to perform work connected with all activities of the religious entity or only those that are religious in nature.

3. Whether the prohibition against sex discrimination in the Maryland Equal Pay for Equal Work Act … prohibits discrimination on the basis of sexual orientation.

Majority Opinion

The Supreme Court of Maryland conducted oral hearings on June 2, 2023, rendering its judgment on August 14, 2023. Reversing in favor of CRS, in a sharply divided, four-to-three decision, with two separate dissents, the court overruled the earlier order in favor of Doe. The court decided that the religious exemptions clause in Maryland’s Fair Employment Practices Act (MFEPA) banned the plaintiff from suing CRS for discrimination when he was denied marital benefits for his partner because doing so would have been contrary to the teachings of the Catholic Church.

The court began by pointing out that it limited its judgment to questions of law. More specifically, the court focused on what the law meant apart from its application to a particular set of facts such as those raised by Doe. Turning to the first of three questions, the court indicated that it would address “What is the meaning of the phrase ‘to perform work connected with the activities of the religious entity,’ as used in MFEPA’s religious entity exemption.” The court responded under the heading “The Prohibition Against Discrimination on the Basis of “Sex” in MFEPA Does Not Itself Also Prohibit Sexual Orientation Discrimination, Which Is Separately Covered under MFEPA”. The court rejected Doe’s argument that the MFEPA should be read as being in lockstep with Title VII’s even though state law had already extended it to sexual orientation because there is no ambiguity in the statute’s language. The court added that relying on Doe’s preferred interpretation would have essentially rendered the statute’s religious exemption meaningless.

The court next rebuffed Doe’s reliance on Bostock v. Clayton County wherein the Supreme Court basically re-wrote Title VII in extending its protections to banning discrimination based on sexual orientation and gender identity. Regardless, the court emphasized that “[i]t remains to be seen if, in light of our holding today, the General Assembly will amend MFEPA in some fashion to harmonize it with the holding of Bostock.” The court highlighted that “the prohibition against sex discrimination in MFEPA does not prohibit discrimination on the basis of sexual orientation.”

Under the second heading, and briefest, part of its opinion, the court discussed that “MEPEWA Does Not Prohibit Sexual Orientation Discrimination.” Based on the unambiguous language in the statute, the court denied Doe’s claim that the Maryland Equal Pay For Equal Work Act should have been read in the same light as the federal Equal Pay Act. Instead, given the statute’s plain text and legislative history the court ruled that “unlike in MFEPA, the General Assembly purposefully omitted sexual orientation as a protected category in MEPEWA” The court thought that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. The court ended by suggesting that while the federal judiciary may agree with Bostock and Title VII, doing so in Maryland would require legislative action that “would be improper for us to make that policy determination in lieu of the General Assembly.”

According to the court’s third, and lengthiest, part of its rationale, as “The Meaning of ‘to Perform Work Connected with the Activities of the Religious Entity’ in MFEPA’s Religious Entity Exemption.” The court observed that pursuant to its “religious entity exemption, MFEPA’s protections do not apply to claims against “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity.”

The court rejected Doe’s position that the MFEPA is co-extensive with the ministerial exception doctrine. The court also denied CRS’ “contention that the exemption bars all employment discrimination claims based on religious preference, sexual orientation, and gender identity against religious entities.” Even so, the court held “that the General Assembly intended to exempt religious organizations from these kinds of MFEPA claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity.”

Rather than engage in judicial activism, the court concluded that Doe lacked a claim under the MFEPA, leaving it to the state’s General Assembly whether to rewrite or modify this statute.

Dissents

The first of the two dissents, which was longer than the majority opinion and was joined by three judges, would have expanded state law by interpreting the prohibition in the MFEPA as covering sexual orientation. This dissent largely disagreed with the court because it thought the case should have been resolved under the ministerial exception which allows faith-based institutions alone, rather than secular bodies, to identify who qualifies as leaders. The dissent suggested that the outcome would have been different because insofar as Doe clearly did not work in a ministerial capacity, tit could not have relied on this defense.

Almost two-thirds as long as the judgment of the court, the second dissent argued that the disputed statutes ban sexual orientation discrimination. Moreover, this dissent interpreted the religious institution exemption more narrowly than the court, positing that it only applies “where a nexus exists between the employer’s religious activities and the work that an employee performs—regardless of the form of discrimination.”

Analysis

CRS demonstrates that the judiciary continues to face challenging questions at the intersection between two increasingly competing fundamental constitutional and human rights: religious freedom and the ability to live as one wishes. Just below the surface is the closely related question of the rights of faith-based employers to be able to operate their institutions in manners consistent with their long-held sincere religious beliefs and the extent to which their officials can expect their staff members to comply with these teachings as a condition of retaining their jobs as well as receiving employment benefits.

In the process, then, just as with trying to require, for example, a wedding website designer or a cake baker to offer their services of individuals entering “same-sex marriages” because doing so would violate their religious beliefs, one must ask why individuals would seek to work in institutions whose core beliefs are at odds with their own personal values, expecting employers to yield to their wishes. Is it fair or reasonable for employees to expect institutional officials to violate their own beliefs in the process of accommodating their desires?

As I have written in other columns in Catholic World Report, such sensitive questions ultimately involve respect, a quality that must be a two-way street. If employees in faith-based institutions such as CRS want to be respected, they must learn that because not all people share the same values, they cannot impose their wills on others with whom they disagree.

In circumstances such as CRS, employees seemingly demonstrate disrespect, even contempt, for their employers and their values. Why do individuals who disagree with institutional teachings want to work in faith-based institutions in the first place, other than simply for a pay check? While Doe’s beliefs, or lack thereof, are insufficient to deny him employment, why would he wish to work in an agency such as CRS whose religious values are clearly inconsistent with his own?

Another question that must be raised and with which the majority of the Supreme Court of Maryland grappled, is whether there should there be limits, or defenses available to employers, on how far individuals can push this and related questions based on matters involving human sexuality. Statutory protection of this nature is essential for the Catholic Church and other faith-based institutions if they are to practice their rights to the free exercise of religion as guaranteed in the First Amendment because, again, there is no surprise in terms of their clear teachings on marriage and other aspects of human sexuality.

Finally, it seems that religious freedom, at least in Maryland, as well as in other states, is hanging by a thread. This is an ironic case because although Maryland was the first Catholic Colony in what became the United States to grant religious freedom to its adherents, its Supreme Court came close to trampling those rights. The key takeaway from CRS is that people of faith, regardless of their beliefs, owe it to themselves, their children, and future generations to ensure that the Nation’s judicial and legislative leaders will respect religious freedom as expressed in the First Amendment because its initial position in the Constitution is not accidental or by chance. Religious freedom begins the First Amendment because it represents a core right the Founders believed to be essential to the formation and health of our Nation.