FOR A brief moment, the presidential aspirant Pete Buttigieg and his husband Chasten may no longer be the most talked-about gay couple in Indiana. At least as much attention is going to two male teachers at Catholic high schools in Indianapolis, who ran into trouble with the local archbishop after it emerged that they were married to one another.
In one case, Cathedral High School laid off Joshua Payne-Elliott, who had taught there for 13 years. His husband Layton Payne-Elliott fared better. His employer, Brebeuf Jesuit Preparatory School, decided to keep him on, but at a cost. The school no longer has the archbishop’s blessing to call itself a certified Catholic institution; instead, it will style itself an independent Catholic school.
Get our daily newsletter
Upgrade your inbox and get our Daily Dispatch and Editor’s Picks.
Joshua Payne-Elliott made it clear he had come to an amicable understanding with his school. He cast blame elsewhere. On July 10th he sued the archdiocese, citing the distress he had suffered as a result of interference with his teaching contract. He also filed a discrimination complaint with the Equal Employment Opportunity Commission, a federal agency that enforces equality laws.
The affair follows a two-year-old drive by Archbishop Charles Thompson, the local hierarch, to make sure that Catholic teaching is observed in all the places under his purview. He has stressed that the objection is not to having employees who are gay, but to same-sex marriage, which contravenes church teaching. Generally American Catholic authorities have tended to crack down on those whose life or publicly expressed opinions are visibly at odds with the church; they hold fire when individuals are willing to keep their private lives discreet.
If the archdiocese feels emboldened to act in this way, this must partly reflect the surprising respect shown in recent years by courts across the Western world for “religious autonomy” or the right of religious institutions to enforce their own norms when hiring and firing.
In America, a big precedent was set by the Hosanna-Tabor case of 2012. A teacher at a Lutheran school failed in her unfair dismissal claim, related to sick leave. By nine votes to none, the Supreme Court ruled that since the teacher was effectively a “minister” (she led prayers and taught scripture), and since the government is barred from interfering in the way religious groups select ministers, the school was in this case exempt from the fair-employment rules that govern secular employers.
Some recent cases are even closer to that of the Indiana teacher: in 2017 a federal judge ruled that the Catholic archdiocese of Chicago was within its rights to fire a music director after he announced his engagement to a man. The relationship had been widely known and accepted within the church community until a decision was made to formalise it.
In Europe, to the dismay of some secularists, religious autonomy was affirmed in the case of a Spanish teacher who was also a priest. He had defied the church by marrying (a woman) and campaigning for an end to the rule of celibacy for clerics. He then lost his job, which was not in a church school but subject to church approval. In 2014 the European Court of Human Rights rejected his claim that basic liberties had been violated; it emphasised the entitlement of the church to exercise its authority.
Most countries with liberal laws against discrimination also have “religious exceptions” which allow churches, temples or mosques to set their own terms when picking celebrants of the faith. A church which chooses not to ordain women won’t be forced to do so by law. But religious bodies employ vast numbers of people who are not priests, imams or rabbis: teachers, bureaucrats, charity workers and so on. It is never obvious how many of those jobs are affected by the exception. The European Union’s equality rules say there must be a “genuine occupational requirement” to justify any deviation from the general bar on unfair discrimination. Those who sweep the pews or fix the organ presumably do not have to be devout. Other cases can be murkier.
Religious employers have won several cases. As Erasmus reported, a teacher at an Orthodox Jewish school in London was fired after it emerged that she was cohabiting with her (male and Jewish) future husband; her unfair-dismissal claim was declined this year by a tribunal that took into account the ultra-devout character of the school. If the case attracted little comment, it was probably because it touched a very small community: a micro-world that is idiosyncratic even within British Judaism.
Religiously affiliated bosses across the Western world have had quite an easy time of it, but there is reason to think that may change soon. In the mainstream, secular world there is heightened sensitivity over discrimination of any kind and above all, same-sex marriage is recognised in most democracies. That makes it harder for religious institutions to apply a sort of don’t-ask-don’t-tell policy to the sexual orientation of their employees, as was often the case in the past. Given that marriage is a statement to the world, not just between the two parties, its existence cannot easily be ignored. Churches, schools and other institutions will find they have to take a position, either accepting or defying the law of the land as it affects their employees.
In recent American history, that process can be observed. One of the early jurisdictions to enact gay marriage was Washington state. This prompted the popular deputy head of a Catholic high school in the Seattle area to wed his long-term male partner, and duly suffer dismissal at the behest of the local archbishop, despite scores of students demonstrating in his support. The teacher sued his archdiocese but eventually came to a settlement.
The 2015 Supreme Court ruling which ushered in gay marriage across the United States was bound to have a much bigger, rippling effect on the entire Catholic system of educational and charitable institutions. The Indiana case is part of that effect. Its result will surely have repercussions for the history of the church. It might see a turning-point after a run of easy-ish successes for religious bodies.
And whatever it is, the outcome will pose in even sharper relief one of the dilemmas faced by organised Christianity in modern times. Should it aim to cast a broad wash of influence over society as a whole, which may mean compromising with some secular norms? Or does it retreat into a self-policing minority subculture, observing much stricter norms than society as a whole: the kind of outfit that society can tolerate only if it remains fairly small?
And as any observer of religious life in the West will confirm, a church which deprives itself of the services of openly gay organists, teachers and other would-be servants of God will indeed be much smaller.
