Charlotte Catholic Not Catholic Enough in Legal Loss

Last week, a U.S. District judge ruled against a Catholic school that fired a male teacher who had announced he was marrying his male partner. Coming from a judge notably progressive on sex and marriage issues who cited last year's consequential Bostock decision, the decision wasn't much of a surprise. However, a significant part of his reasoning was: the Catholic School was not Catholic enough.

Here's the story. In 2014, a male substitute drama teacher at Charlotte Catholic School announced on Facebook that he planned to marry his male partner. The school argued that his post showed open disregard for the teachings of the Catholic Church and amounted to activism, which the school prohibits. So, they fired him. At roughly the same time, a female teacher announced on Facebook that she was engaged to her male partner. She was not fired, because her post did not violate the teachings of the Catholic Church.

This is where the 2020 Supreme Court decision in Bostock vs. Clayton County comes in. In a bit of rhetorical jiu-jitsu, Justice Neil Gorsuch determined that Title VII of the Civil Rights Act of 1968 protects sexual orientation and gender identity along with biological sex. Though, wrote Gorsuch, "homosexuality and transgender status are distinct concepts from sex… discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex."

In other words, rather than saying that the word sex in Title VII includes sexual orientation and gender identity, Gorsuch argued it's impossible to make employment decisions regarding sexual orientation and gender identity except on the basis if sex. So, if a man wouldn't have been fired for sleeping with a woman, a woman shouldn't be fired for sleeping with a woman. If a woman is allowed to dress like a woman, a man shouldn't be fired for dressing like a woman. Effectively, any employment decision made in which sex is a factor amounts to sex discrimination.

Though it was clear that Gorsuch's sleight-of-hand was bad news, it wasn't exactly clear how bad. Now, we have a better idea after U.S. District Judge Max Cogburn applied Gorsuch's principle from Bostock in his decision in the Charlotte Catholic case. According to the judge, because the school objected to the drama teacher's announcement that he was marrying a man but did not object to the female teacher who announced she was marrying a man, the school therefore discriminated on the basis of sex.

With this kind of legal precedent in place, employers that believe biological sex is a distinct category, but sexual orientation or gender identity are not, have only one protection: a religious exemption. So, why wasn't Charlotte Catholic protected in this case by a religious exemption?

This is where this decision gets very interesting. According to Judge Cogburn,

With a slightly different set of facts, the Court may have been compelled to protect the church's employment decision...Importantly, Charlotte Catholic discourages teachers of secular subjects from instructing students on any sort of religious subject. [emphasis added] The school asks that teachers who teach secular subjects refrain from instructing students on Catholic Doctrine. (Doc. No. 28-5 at 28). Secular teachers do not have to undergo religious training, do not have to be Catholic, and do not have to be Christian. (Doc. No. 28-3 at 58). The administration at Charlotte Catholic does not know the percentage of teachers at the school who are Catholic and does not ask if candidates are Catholic during job interviews.

In other words, Charlotte Catholic failed to be Catholic enough. By dividing subject areas into "secular" and "religious" categories, the school effectively divided educators into "secular" and "religious" categories. This was, especially in the wake of Bostock, a serious tactical mistake.

Even worse, to divide subject areas and educators into "religious" and "secular" is a serious worldview mistake. Father Richard John Neuhaus once said, "If what Christians say about Good Friday is true, then it is, quite simply, the truth about everything." For any institution committed to forming students in a Christian worldview, there is simply no such thing as a "secular subject." Every subject—from science to geometry, dance to drama, religious studies to social studies—is part of God's Creation, informed by God's revelation, and within the scope of Christ's work of redemption. This also means, there's no such thing as a "secular" educator in a Christian school, either.

Simply put, any school wishing to be Christian must be thoroughly Christian: in purpose, content, curriculum, aim, and personnel. This is no easy task. In fact, to be a Christian educator is, to paraphrase Dr. John Stackhouse, "more than twice as hard." After all, A Christian educator must be Christian. And they must be educators. And they must be Christian educators.

That's always been a theological imperative for those God's called to educate. It just so happens, it's now a legal imperative too.