1. Employment Policy and Civil Same Sex Marriage JSN Cincinnati Kent Hickey / khickey@seaprep.org

2. Caveats:  Not a “what decision is right” presentation  Define terms: Civil Same Sex Marriage  Even the best employee policy can’t insulate  Get a lawyer and your board onboard

3. Here’s How Not To Do It...  Eastside Catholic School does not discriminate on the basis of an employee’s or applicant’s race, religion, creed, color, sex, age, national origin, disability, marital status, sexual orientation or any other status or condition protected by local, state or federal law. Discrimination or harassment on the basis of any status or condition protected by local, state or federal law is strictly prohibited and will not be tolerated at Eastside Catholic School

4. What is the Law on Civil Same Sex Marriage?  It is legal. Obergefell v. Hodges, 2015  5-4 U.S. Supreme Court ruling  Recognized as fundamental right  Based on 14 th Amendment (Due Process and Equal Protection)

5. Effect: Requires States to License Same Sex Marriage and Recognize Those Marriages in Other States. Question: How does this individual right stack up against rights held by Catholic Schools?

6. Fundamental Religious Rights  First Amendment (Establishment and Free Exercise Clauses)  Religious Freedom Restoration Act (1993)  Longstanding Common Law  U.S. History (Pilgrims)

7. Result: Competing Constitutional Rights (perhaps)  Which wins?Who Knows?  Depends upon facts, balancing interests and employment policy

8. Policy Approach #1: Explicitly List Civil Same Sex Marriage as Prohibited Act Subject to Dismissal.

9. Approach supported by Hosanna Taber v EEOC (2012)  9-0  Ministerial Exception prohibits ministers from suing employers for discrimination after termination  Teacher taught religion 45 minutes a day  No specific test for Ministerial Exception (See Dias v. Archdiocese of Cincinnati )

10. Problems with Explicit Prohibition Approach:  Lists beget longer lists  Inconsistent application  Contrary to state and federal law  Violates privacy right (Griswold v. Connecticut )  Invites a lawsuit (and other stuff)

11. Policy Approach #2: Affirm Principles and Assert Rights; Apply if / when Needed

12. Respect of Rights in the Jesuit Tradition Our Catholic tradition affirms the human dignity and worth of every person and recognizes the need for protection of their basic human rights. Further, in the Jesuit mandate of faith doing justice in the promotion of love, we are especially called to be a community committed to the inherent dignity and the equal and inalienable rights of all members of the human family, recognizing that this respect and fair treatment of all people is the foundation of freedom, justice and peace in our world.

13. Employment Non- Discrimination Policy Seattle Preparatory School does not discriminate in its employment decisions or practices on the basis of gender, age, race, color, marital status, honorably discharged veteran or military status, national and ethnic origin, sexual orientation or any disability which can be reasonably accommodated in the administration of its educational policies and school administered programs.

14. Protections as a Religious Institution As a Catholic, Jesuit school, Seattle Prep reserves the right to establish employment practices that preserve its state and federal protections as a religious institution. Therefore, for example, Seattle Prep may grant more favorable consideration to Roman Catholic applicants than non-Roman Catholic applicants in the employment process, since every member of the Seattle Prep faculty and staff is required to actively participate in effectuating the religious mission.

15. Protections as a Religious Institution Continued... All employees must respect Catholic values and Jesuit traditions. Actions that are seriously at variance with the fundamental teachings of the Catholic Church (such that the actions bring discredit to the School) or conduct on or off the job that seriously opposes Catholic values and Jesuit traditions are prohibited.

16. Use of Name An employee shall not engage in or lend his/her name to any enterprise or activity which may, in the reasonably exercised judgment of the School, interfere with the proper performance of his/her duties, damage the School’s reputation, or contradict the Catholic, Jesuit Mission of the School. An employee also shall not use the School’s name for commercial or other non-school related activities without written permission from the President.

17. Approach 1: Statutory law, Lists, Leviticus and Hammurabi's Code We’re not that kind of church Approach 2: Common law, Principles, the Shema and "our way of proceeding" Engage the gray

18. Concluding Prediction When a case arises it will turn on the facts, the Catholic school’s employment policy and the job title of the employee.