Employer law: Gay marriage & religious rights

By Bullard Law,
Portland law firm
By Michael G. McClory

For good or ill, gay marriage inspires many people. They have strong feelings about it. Sometimes those strong feelings are grounded in religion and sometimes they are not. When the workplace is added to the mix, emotions tend to run high. After giving an overview of two current situations, The Bullard Edge is going to outline three key points for consideration and clarity.

Situation 1 – St. Mary’s Academy Withdraws Job Offer:

Recently the biggest local story in Portland involved St. Mary’s Academy. St. Mary’s is (a) one of the more acclaimed prep schools in Oregon, (b) all girls, and (c) Catholic. Over the summer, St. Mary’s offered an academic advisor position to Lauren Brown, a candidate the school obviously believed to be well-qualified. While media reports differ on the how, there is agreement that subsequent to the offer St. Mary’s learned Ms. Brown is gay and may get married to her same sex domestic partner. This information prompted St. Mary’s to withdraw the offer of employment on religious grounds (and we will talk about those later). When the news media learned of the situation and publicized it (see here and here), things got chaotic. Opponents and proponents of the action made their points of view known. Late in the week, St. Mary’s decided to change its Equal Employment Opportunity Policy. While the school still adheres to current Catholic teachings opposing same-sex marriage, employment will no longer be denied on that basis.

Situation 2 – County Clerk Refuses To Issue Marriage Licenses To Same Sex Couples:

On June 26, 2015 the United States Supreme Court issued its landmark decision in Obergefell v. Hodges. The Supreme Court held that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” Despite this fairly clear holding, an elected county clerk is making news this week by refusing to issue marriage licenses to same sex couples. Kim Davis, the elected County Clerk for Rowan County (KY), has declined to issue marriage licenses to same sex couples because she says doing so would require her to act contrary to her religious beliefs. Ms. Davis’s stance has led to legal efforts to force her to carry out her job duties.

Three Key Points of Consideration:

First, as discussed above, the United States Supreme Court decision in Obergefell v. Hodges affirms that under the United States Constitution the right to marry cannot vary depending on the gender of the would-be spouses.

Second, employees have religious rights in the workplace. Where on notice of the need for religious accommodation, both federal and Oregon laws require an employer to reasonably accommodate its employees’ sincerely held religious practices and beliefs, unless providing accommodation would result in “undue hardship. (The EEOC says that an accommodation is not an undue hardship “unless doing so would cause more than a minimal burden on the operations of the employer’s business.”)

Third, employers also have rights when it comes to religion and the workplace. Briefly, these fall into at least three categories.

Religious Preference: Under federal and Oregon law a religious organization (one that has a primarily religious purpose and character) is permitted to give an employment preference, for any employment position, to members of its own religion.

Ministerial Exception:
Further, the First Amendment protects the free exercise of religion. Rooted in the free exercise clause is a “ministerial exception” that allows a religious institution to appoint its own ministers. While the term “minister” is difficult to define, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the United States Supreme Court said that the exception is not limited to employees who perform exclusively religious functions. Rather, the determination of whether a position is ministerial is made on a case by case basis. “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.”

Establishment Issues: The First Amendment protects individuals against governmental action, including any governmental establishment of religion. In other words, the government may not endorse or favor one religion over another. In the context of a government employee seeking religious accommodation, the government employer is not permitted to grant accommodation if doing so “would lead a reasonable observer to conclude that the Government is sponsoring, endorsing or inhibiting religion generally or favoring or disfavoring a particular religion.” In that situation, a government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.

Final Thoughts:

Religion in the workplace presents enormously challenging issues. Sincere people often hold diametrically opposing points of view. Employers have their hands full navigating through these matters.

For example, in situations like the one at the St. Mary’s Academy, a religious entity does have the right, under the Ministerial Exception, to decline to hire a person for a “minister” role where that would conflict with the entity’s free exercise of religion. This is true even if a rejected candidate is otherwise very qualified for the position.

Similarly, in a situation like the one in Rowan County, the county government is prohibited by the First Amendment from taking action that would suggest endorsement of one religion over another. If excusing an employee on religious grounds from performing an essential function of his/her job could lead a reasonable observer to conclude that the employer is endorsing the employee’s religion, then the accommodation request must be denied. This is true even if the requesting employee may believe that s/he has no option other than to resign.

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