Under what precedent? By that I’m looking for an example of courts reading in a religious exemption to anti-discrimination laws when none is present in the legislation itself.
Not necessarily religious - other First Amendment protections also apply. And the Dale decision is especially applicable here.
You seem to be suggesting that the only difference is that the lack of validity is obvious to anyone who sees the couple in question. So two questions:
-
Does the section in italics actually happen here? Has there ever been a case where a sacramentally invalid marriage between opposite sex spouses was obviously invalid enough to a competent authority that spousal benefits were refused or cut-off. And what would that take, the employee complaining about having to get a divorce before their current marriage? The couple marching down the street wearing signs saying ‘I divorced and then remarried’?
-
Could I, as a hypothetical employee of Catholic Charities in DC marry ‘Pat’. Never mention their sex, bring pictures in, or have anyone that would count as a competent authority meet Pat and get spousal employee benefits for them? The (possibly) sacramentally invalid nature of our marriage should never come up if there truly is a don’t-ask-don’t-tell policy in place.
Because as an outsider it seems to be that the church’s real policy is ‘Sure, now that you mention it, we don’t like giving spousal benefits to our employee’s spouses if they’re not in a sacramentally-valid marriage. But we’ve never cared enough to do anything about it. But queers?? No way are we giving benefits to them!’
I don’t think Dale is. If I am not misreading this totally, the Catholic Chuch isn’t saying “we won’t hire homosexuals” it is saying “we don’t want to give the spouse of a homosexual employee the same benefits as the spouse of a heterosexual one.”
Dale was about freedom of association. It was seen as contrary to scouting’s mission (the inculcation of certain values) to have gay members. The Catholic church isn’t in that situation here. They have already ‘associated’ with gay people.
It’s happened in canon law tribunals, but never, so far as I can tell, involving an employee benefits issue.
It’s worth pointing out, too, that a person who obtains a civil divorce and then remarries is presumptively committing adultery, because the prior marriage is presumed valid. But if that person subsequently obtained a decree of nullity, then there was no adultery; the decree shows that, despite that presumption, the former marriage was never valid at all. In other words, even in the case of a divorced and remarried person, it is possible that the only sin involved was the failure to follow Church process.
Without being too specific, I am personally acquainted with a same-sex couple in a nearly identical position following a Massachusetts wedding, where one of the spouses works for a Catholic organization in the DC metro area and has the other spouse covered. Interestingly enough, the names are not even that gender neutral. It’s hard to give a flavor and not say the names themselves, because opinions will differ, but I think two reasonable aliases are Lynn and Frances, with Frances the employee. There are men named Lynn, but it’s not common. (This should not be taken as a statement that the couple are female, just that the names are similar in flavor to the names involved). This couple has been in this employment/insurance position since mid-2006. Their only insurance problem has been a temporary denial of benefits after the insurance company raised a question about other coverage from Lynn’s other job.
But hiring isn’t the only decision affected here - the provision of benefits is also at issue. And for better or worse religious organizations typically have more latitude in this area than other employers specifically because the First Amendment comes into play.
Well, hiring isn’t what is being discussed at all. This is about a religous organization that has (in the employment arena, which is treated very differently to the sort of voluntary situation being discussed in Dale) already chosen to associate with homosexuals, and then is wondering whether it can discriminate in something more minor - the payment of benefits, not to the homosexual employee, but to the spouse of that employee. You simply are not going to be able to shoehorn that into Dale, which was based on freedom of association, a right which isn’t at stake here.
Certainly that right is at stake, as rights of association can turn not only on who an organization hires but other transactions. And let’s keep in mind that James Dale was an adult Scoutmaster - a position akin to an employee since the Scouts rely on volunteers.
Since we have established that that right exists, it certainly does not make sense to posit that it exists to a lesser degree than fully. To say the Church has the right to not hire a homosexual but does not have the right to make coverage decisions based on homosexuality - that’s nuts.
Have you read Dale, Mr. Moto?
In the first place, the distinction between volunteer and employee is a major one in legal analysis. Secondly, Dale was based on the BSA’s claimed view that association with homosexuals was contrary to its values and purpose. Therefore it chose to not associate with homosexuals. Do you not see a fundamental difference between saying that, and saying "we are OK with associating with homosexuals, with even paying salary and benefits to homosexuals, to associating with homosexuals who are married, to paying benefits to employees who are married and homosexual, but we are not OK with paying benefits to the spouse of the homosexual with whom we have chosen to associate…’
It just doesn’t work under a Dale analysis, and reading the case will show you that. It isn’t irrational given that case to say that you might have the right not to allow a group to join, but if you do allow them to join, you cannot discrimiante in lesser ways, because you have made clear that you don’t have a problem with associating with that group.
But isn’t that just taking an end run around the freedom of religion issue? Could East Bumfuck, AL pass a city code saying that their contractors must be Christian owned businesses, and then when someone objects, you simply point out that nobody is denying their right to worship as they please, just that if you aren’t Christian, then you do without the city money.
Just because you WANT to be Jewish or Agnostic isn’t the East Bumfuck city council’s fault.
No.
At its heart, the First Amendment requires government neutrality towards religion.
When the DC City Council says, “Our contractors must behave neutrally towards religion,” they are not violating the First Amendment – even if a particular contractor is religious.
No, it’s not taking an end run. DC is not withholding anything from the Archdiocese or its agencies. The Archdiocese has a situation (“anyone contracting with the city must not discriminate on the basis of sexual orientation, including (now) spousal benefits”), and the Archdiocese has a choice (“grant spousal benefits or don’t contract with the city”). There is no freedom of religion issue.
If the city were saying “You must grant spousal benefits whether you’re contracting with us or not”, then there is a 1st Amendment problem. But not in this instance.
The side effect of the Church looking petty and bigoted is a cultural artifact, not a Constitutional one.