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Drew Belsky

Opinion, ,

Obama administration: Catholic school upholding marriage is ‘sex discrimination’

Drew Belsky

WASHINGTON, D.C., April 13, 2015 (LifeSiteNews.com) -- The Obama administration's Equal Employment Opportunity Commission (EEOC) has found "reasonable cause" to rule that a Catholic prep school has unlawfully discriminated against a homosexual band director formerly in the school's employ. 

Mount de Sales Academy terminated the employment contract of band director Flint Dollar on May 21, 2014, citing Dollar's impending attempt to marry his male romantic partner, which would fly in the face of the school's mission "to provide a high quality education based in teachings of the Catholic Church."

Mount de Sales had renewed Dollar's teaching contract on May 1, 2014.  Dollar claims that he had informed the administration of the July 2015 ceremony in late 2013.

The EEOC is basing its January 30, 2015 ruling on Title VII of the 1964 Civil Rights act, which forbids employers to discriminate against employees or potential employees on the basis of certain criteria.  Dollar's attorney, Charles Cox, told Georgia Voice, "[t]ypically, Title VII [of the 1964 Civil Rights Act] doesn't protect against sexual orientation discrimination[.] ... But what it does protect against is gender discrimination, which is when you don't adhere to traditional gender stereotypes."

The text of the Act says nothing of "traditional gender stereotypes" or even of "gender" at all, instead listing, multiple times, "race, color, religion, sex, or national origin" as qualities on the basis of which it is unlawful for employers to discriminate.

To apply Title VII of the Civil Rights Act to someone trying to marry a member of his own sex presents many problems.  For one, it requires that certain behaviors – in this case, the attempt to marry – be accepted as innate and unchangeable human attributes, identical in quality to race or sex.  Yet sex – the chromosomal makeup of a human being – is static, regardless of what "gender norms" an individual chooses to conform to or what activities an individual chooses to pursue.  Contra Cox, even "transgender" describes the innate nature of a person, not necessarily having anything to do with said person's behavior.  To fire a person "due to her being transgender" (or, for that matter, "being homosexual") may be wrong, but it has no bearing on Mount de Sales's decision to fire Cox.

However, by expanding the definition of what Title VII covers, legal precedent and subsequent EEOC rulings have set up a framework in which behaviors are on the same level as inherent and immutable characteristics.  Cox cited Glenn v. Brumby, "the Eleventh Circuit court case from 2011 which found that the Georgia General Assembly fired activist Vandy Beth Glenn due to her being transgender, which was a violation of the equal protection clause of the U.S. Constitution that protects against gender discrimination."  The EEOC in 2012, citing Glenn among other cases, extended the Civil Rights Act's prohibition of "sex" discrimination to include "discrimination based on gender identity, change of sex, and/or transgender status."  Further, the EEOC cited the Supreme Court ruling in Price Waterhouse v. Hopkins, which added under Title VII's umbrella "gender stereotyping – failing to act and appear according to expectations defined by gender."

In short, the EEOC has ruled that any behavior seen as "failing to act and appear according to expectations defined by gender" is "cognizable" under Title VII.  Thus, in the Mount de Sales case, the EEOC appears to put attempting to marry a member of one's own sex in the category of "failing to act and appear according to expectations defined by gender."

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Under this interpretation, Catholic schools are not allowed to expect their employees to live by the Catholic understanding of marriage.  They are legally forbidden to uphold Catholic doctrine.

One wrinkle in the case is Hosanna-Tabor v. EEOC, in which the Supreme Court ruled that religious organizations are free to choose their own "ministers," with that term broadly defined.  While it is possible that the Supreme Court's ruling in Hosannah-Tabor affects the EEOC's ruling against Mount de Sales, Greg Baylor, senior counsel at the Alliance Defending Freedom, told LifeSiteNews that "[t]he press accounts of this dispute do not provide enough information about the discharged band director's job position to enable one to determine whether the ministerial exception might be available."

Baylor found the EEOC's interpretation of Title VII disturbing.  "It's important that the EEOC is interpreting Title VII's ban on 'sex' discrimination to reach alleged 'sexual orientation' discrimination.  This is more extreme – and less defensible – than the assertion that Title VII reaches 'gender identity' discrimination."  Regardless, Baylor concluded, "Religious employers ought to have the freedom to draw their workforces from among those who share their religious commitments.  The EEOC's move is an unwarranted violation of that freedom."

The EEOC will attempt to settle the case with Mount de Sales.  Dollar hopes to obtain "a clear statement either by the EEOC or an agreement by Mount de Sales or a statement by the court that firing someone because they're [sic] entering into a same-sex marriage is unlawful discrimination."  If no settlement is reached, Dollar intends to litigate against the school.

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