The Right To Be Wrong

Separation of church and state works both ways

I have been fighting the Catholic Church since I first argued with a nun at St. Catherine Labouré Elementary School in 1962. I don’t recall being smacked with a ruler, but Sister Mary Margaret gave intimidating glares.

I remembered her, and the scorn of the parish’s Monsignor W. Joyce Russell toward liberal priests during 1968′s uproar over the papal encyclical Humanae Vitae, when I helped win D.C. marriage equality over objections by the Archdiocese of Washington several decades later. The Archdiocese wanted various exemptions enabling them, for example, to receive government contracts for adoption services while turning away gay couples. They lost. They then withdrew from public adoption services and were replaced by another contractor.

Those past battles came to mind last week with the news that Mark Zmuda, the vice principal fired last year from a Seattle-area Catholic school after marrying his same-sex partner, has filed an employment-discrimination lawsuit against the school and the Seattle Archdiocese.

Zmuda is unlikely to win his case. The U.S. Supreme court unanimously upheld the “ministerial exception” to nondiscrimination laws in its 2012 decision in Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission. Chief Justice Roberts cited a string of rulings going back to 1872.

Seattle Archbishop J. Peter Sartain has a constitutional right to impose Catholic teachings in church-run schools. I disagree with those teachings, but I also respect and cherish the First Amendment. It does not, in my view, give a baker or a photographer the right to refuse service to a customer (this is being litigated), but it does protect a church in its core religious functions. That does not mean the church is entitled to discriminate using public funds.

President Thomas Jefferson wrote to the Danbury Baptists in 1802 that the First Amendment built “a wall of separation between Church & State.” That wall has taken a battering in the ensuing centuries, yet it persists, and it protects those on both sides.

Leah Ward Sears and David Blankenhorn write in Time, “Does any religious conviction justify denying lesbians and gays a basic legal promise of non-discrimination in hiring, public accommodations, and housing? Surely the answer to this question is no.” Blankenhorn was a witness for the anti-gay side in the Proposition 8 trial. He has had a change of heart, and now supports civil marriage equality.

Our fight is not over, but we are winning. The fact that our opponents overreach by seeking to extend faith-based discrimination into the public square with conscience clauses and the like does not mean that we should reciprocate by telling religious organizations whom they can and cannot fire.

Neither need we be silent. Francis DeBernardo, executive director of New Ways Ministry, writes of those who fired Zmuda, “Though they may have had a legal right to fire Zmuda, did they stop to think what lesson they would be sending to students with such an action?” The outspoken defense of Zmuda by his former students is the latest example of Catholic laity heeding their well-formed consciences over the knee-jerk dictates of bishops.

People of faith, from high school students to dissident clergy, are waging the fight for gay-affirming policies from within their denominations. That is where that part of the fight should be waged. “Gays Not Welcome” signs should no more be allowed in shop windows than “Blacks Not Welcome” signs; on the other hand, “All Are Welcome” signs outside houses of worship must be placed there by the religious groups themselves, not imposed by the state. I have the Constitution and the ACLU on my side, and if you fight us on this point we will win. Holler all you want. The First Amendment is a sturdy thing.

Richard J. Rosendall is a writer and activist. He can be reached at rrosendall@starpower.net.