Mirror of Justice

A Richmond, Virginia man married to another man since 2008 was removed from his job as executive director of a Catholic ministry for low-income elderly this past April. John Murphy worked eight days as executive director for St. Francis Home before losing his job.

According to a news report, "two deputies of Bishop Francis Xavier DiLorenzo told him that he was being fired because his marriage goes against church doctrine."

In an interview with a local news outlet, Mr. Murphy said that his removal from the executive director position at St. Francis Home "was something that was out of left field and totally shocking to me."

According to a story at GayRVA.com, Mr. Murphy had "a little misgiving" during the hiring process when he found out that the nonprofit job he was interviewing for would be "heading up a care facility for low income elderly Richmonders run by the Catholic Diocese of Richmond." A Notre Dame graduate who was raised Catholic and attends church semi-regularly, Mr. Murphy nonetheless went ahead in the process after reportedly being reassured that the board "really wanted [Murphy] to focus on [fundraising and related] kinds of things and less on the religious aspect of it."

Murphy has filed a charge with the EEOC. A statement by the diocese says that, "[a]s a Catholic organization, we expect the employees of the Diocese and its ministries, to uphold and embody the consistent values and truths of the Catholic faith, including those preserving the sanctity of marriage." 

If this ends up in federal court, Mr. Murphy will need to plead a prima facie case of discrimination and also overcome Title VII's religious employer exemption. Both will be difficult. Title VII does not encompass sexual orientation discrimination except to the extent that it can be classified as sex discrimination, and discrimination on the basis of being in a marriage that goes against church doctrine is not sexual orientation discrimination even if that were covered.

If Murphy can somehow shoehorn the facts of his claim into discrimination on the basis of sex, the religious employer exemption will also be invoked by the diocese. A news story on Murphy's charge reports that Michigan law professor Sam Bagenstos described the exemption as one that "goes only so far as to allow organizations from refusing to hire people who aren’t part of their religion." But Missouri law professor Carl Esbeck asserts that the Title VII exemption allows religious employers to enforce religiously based codes of conduct, because the operative understanding of religion "is not narrowly doctrinal or creedal but reaches beyond worship and denominations." Esbeck cites multiple cases applying the exemption to shield decisions based on religious codes of conduct. See also Stanley Carlson-Thies; but see Marty Lederman & Rose Saxe. (The Esbeck, Carlson-Thies, Lederman, and Saxe analyses are all more directly about the recent executive order, but the authorities they rely on relate to the Title VII exemption.) Other sources of law that may also be relevant are RFRA (depending on how Title VII would otherwise be applied) and the ministerial exception (depending on the facts).

Legal analysis aside, the facts as reported paint a picture of a broken hiring process for this position. One can imagine a situation in which the removal of someone already on the job for something that was known about the person's marriage at the time of hiring is less easily avoided--say, because there has been a leadership change in the diocese. But the reported facts point more toward a process breakdown. The recruiter or the board or both were not aligned with the diocese.

Perhaps facts will come out that tell a different story; only one side is telling its story right now, and it is coming out through advocates and the press. It would be surprising if nobody thought to verify diocesan policy on a matter like this. But if Mr. Murphy had received credible, authoritative, explicit assurances sufficient to overcome his misgiving about how his same-sex marriage might disqualify him for the position, then he deserves an apology. That is, of course, separate from the legal merits, which are unlikely to go in Mr. Murphy's favor. As long as litigation looms, moreover, it is likely that the parties will only be talking through their lawyers and media representatives.