Maggie Gallagher has recently drawn our attention to the threat to religious freedom that would be posed by the legalization of same-sex marriage (as has Douglas Kmiec more briefly), and even the New York Times has seriously reported on this prospect. We should remind ourselves what this issue is about, remembering that “to discriminate” is a verb that can be of positive, negative, or neutral connotation. We’re talking about the right of religious believers and religious organizations to discriminate in their interactions between those who would make the faithful complicit in sin or immorality, as the faith understands it, and those whom the faith can embrace or happily accommodate.
In that light, here’s a good-news story: last week a panel of the Third Circuit held that Ursuline Academy, a girls’ Catholic pre-K-12 school in Wilmington, Delaware, was protected by its religious freedom from a lawsuit challenging its firing of a teacher who publicly stated her support of abortion rights as signatory to a pro-Roe newspaper ad (see here for PDF version of the ruling). In the most interesting aspect of the opinion by Judge Jane Roth (the widow of the late Sen. Bill Roth who recently took senior judge status), the panel held that the court itself would trample on the First Amendment’s protection of religious freedom if it were to attempt to assess how much of an affront to Catholic doctrine was committed by, say, a male teacher who opposed the war in Iraq, as compared to the female plaintiff who opposed Catholic teaching on abortion. To engage in such inquiries “would be meddling in matters related to a religious organization’s ability to define the parameters of what constitutes orthodoxy.”
This case involved a potential conflict between First Amendment religious freedom and federal civil rights law (a real potential despite legislative language and history largely protective of religious institutions). Much worse would be the situation for churches and other such institutions if the Supreme Court held for a constitutional right to same-sex marriage, which would set up the conflict on the same plane of constitutional principles.
(A footnote to the Ursuline story is how gratifying it is to this former Delaware boy whose mother and sister attended that fine school for young women.)