COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss. SUPERIOR COURT


MATTHEW BARRETT,

FONTBONNE ACADEMY
MEMORANDUM OF DECISION AND ORDER ON (1) 
PARTIAL MOTION FOR SUMMARY JUDGMENT AND
(2) CROSS-MOTION FOR SUMMARY JUDGMENT
After accepting the position of Food Service Director at the defendant, Fontbonne

Academy ("Fontbonne"), the plaintiff, Matthew Barrett ("Barrett") ?lled out a "new employee"
form, listing his husband as his emergency contact. Fontbonne, a Catholic preparatory school,
then rescinded the offer of employment, citing an expectation that its employees will model its
values, including the Catholic Church's opposition to same-sex marriage. Claiming employment
discrimination on the basis of sexual orientation and gender, Barrett sued Fontbonne under G. L.
c. 151B. ontbonne denied the allegations and claimed statutory and constitutional exemptions
from 0. 151B, raising serious issues of ?rst impression. The plaintiff has ?led ?Plaintiff
Matthew Barrett?s Motion for Summary Judgment? (?Plaintiffs Motion?). Fontbonne ?led
simultaneously ?Fontbonne Academy?s Motion for Summary Judgment? (?Defendants'

Motion?). After hearing on December 1, 2015, the Defendants' Motion is DENIED and

Plaintiffs Motion is ALLOWED.

 

BACKGROUND

Fontbonne is an independently incorporated, Catholic, college-preparatory school for
young women, located in Milton, Massachusetts. Fontbonne is a Sponsored ministry of the
Congregation of the Sisters of Saint Joseph of Boston. It describes its mission as ?the education
of young women rooted in gospel values and the teachings of the Catholic Church.? ontbonne
does not limit enrollment to members of the Catholic religion. Fontbonne?s administration,
Theology faculty, and staff in the Of?ce of Mission and Ministry are the only employees
required to be members of the Catholic religion.

Barrett lives in Dorchester, Massachusetts. He has over twenty years of experience in the
food services industry. On' September 29, 2012, Barrett married his husband, Edward Suplee.

In June of 2013, Barrett applied for the job of Food Services Director at ontbonne. At
the time of his application, he knew that Fontbonne was a private Catholic school for girls. In
June of 2013, Barrett had his ?rst interview with Sister Maryanne Enright. After the interview,
Sister Enright arranged a meeting for Barrett and Karen Risso, the Fontbonne employee who
wonld be Barrett?s cafeteria assistant. Barrett met with Risso during approximately the ?rst
week ofJuly 2013.

On July 9, 2013, Barrett had a third interview with Sister Enright and ontbonne?s Head
of School, Mary Ellen Barnes (?Barnes?). Barnes was also the Chief Executive Of?cer of
Fontbonne, and possessed the ultimate authority on hiring and ?ring employees. During the
interview, Barnes told Barrett that every employee is regarded as a ?minister of the mission.?
Barnes also told Barrett that he would be expected to model Catholic teaching and values, and

was asked if he could ?buy into that.? Barrett responded affirmatively. On the same day, Barnes

 

offered Barrett the position of Food Services Director and Barrett accepted the offer. Barrett
?lled out an employee new hire form in Barnes? of?ce in which he listed his ?emergency
contact? as ?Ed Suplee,? who he indicated was related to him as his ?husband.?

On July 1 l, 2013, Barrett received an email from Sister Enright stating that there was a
problem with his employment and requesting him to return to the school. On July 12, 2013,
Barrett met with Barnes and Sister Enright. At the meeting, Barnes told Barrett that Fontbonne
would not hire him because he was a spouse in a same-sex marriage, which was inconsistent
with the teachings of the Catholic Church.

DISCUSSION

On summary judgment, the moving party has the burden to demonstrate that there is no
genuine issue as to any material fact and that it is entitled to a judgment as a matter of law.
Folev v. Boston Hous. Auth, 407 Mass. 640, 643 (1990). The movant may meet this burden by
showing that the plaintiff has no reasonable expectation of producing evidence on a necessary
element of his case. Kourouvacilis v. General Motors Com, 410 Mass. 706, 716 (1991). Once
the moving party meets the burden, the opposing party must advance speci?c facts that establish
a genuine dispute of material fact. 1g.

1.

The undisputed facts establish the employer?s motivation with unparalleled clarity.
Fontbonne declined to hire a quali?ed food service employee because he was a spouse in a same-
sex marriage. That violated G. L. 0. 151B, which states:

It shall be an unlawful practice:

 

1. For an employer, by himself or his agent, because [or] sexual
orientation . . . of any individual to refuse to hire or employ or to bar or to discharge from
employment such individual. [emphasis added].

It is no answer to say that Fontbonne denied Barrett employment because he was in a same-sex
marriage, not because of his sexual orientation. The law recognizes no such distinction. tax
on wearing yarmulkes is a tax on Jews.? Bray v. Alexandria Women?s Health Clinic, 506 US.
263, 270 (1993). ?Likewise, discrimination on the basis of one?s opposition to same-sex
marriage is discrimination on the basis of sexual orientation.? Mullins v. Masterpiece Cakeshop,
2015 COA 115, 2015 Colo. App. LEXIS 1217 at *21 (Ct. App., Div. 1 August 13, 2015).
This principle simply follows the well-established refusal of the courts ?to distinguish between
status and conduct in [the sexual orientation discrimination] context.? Christian Legal Society V.
Martinez, 561 US. 661, 689 (2010). See Lawrence v. Texas, 539 US. 558, 583 (2003)
(O?Connor, ., concurring). Cf. Attorney General v. Desilets, 418 Mass. 316, 320 (1.994)
(af?rming a ruling on summary judgment that defendants were discriminating on the basis of
marital status instead of conduct When they refused to rent to unmarried persons living together
in a sexual relationship).

Fontbonne tries to justify its decision on the ground that hiring Barrett, while he was in a
same-sex marriage, would be inconsistent with both the teachings of the Catholic Church and its
own policy that all employees are models for the students. That may explain why Fontbonne
denied Barrett employment ?because of? his sexual orientation. But the ?because of? language
in 4(a) refers to the discriminatory reason itself, and does not contemplate an additional inquiry
into why the employer intended to discriminate. A religious motivation has relevance, if at all,

only in evaluating whether ontbonne can claim the protection of a statutory or constitutional

 

exemption from the anti-discrimination provisions of G. L. 0. 151B, Establishing or
interpreting those exemptions is for the Legislature or the courtsemployer 
unless exempt - to choose employment discrimination as a means to accomplish its mission.1

ontbonne also argues that there is an issue of fact regarding ?the ultimate issue of
discriminatory intent,? whichshould be submitted to a jury under the burden-shifting analysis
recognized in many cases, including Blare v. Huskey Injection Molding Systems Boston. Inc.,
419 Mass. 437, 439 (1995). There is no reason to employ burden-shifting analysis where there is
direct evidence of discriminatory intent. See Chief Justice for Admin. Mgt. of the Trial Court
v. Mass. Comm?n Against Discrimination, 439 Mass. 729, 732 n. 11 (2003). More
fundamentally, Fontbonne?s discrimination ?because of? Barrett?s same?sex marriage is
undisputed and, as shown above, amounts to discriminatory intent as a matter of law. There is
nothing for a jury to decide on the intent question.2

On the undisputed facts, Barrett has shown that he is in a protected class, that he was
quali?ed (and even received an offer) for the position of Food Service Director, that he suffered
denial of employment, that the reason for denial was his sexual orientation and that he suffered
harm as a result. This proves 'sexual orientation discrimination as a matter of law on the

undisputed facts. See generally Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 39 (2005).

 

If it were otherwise, the limits that the legislature placed upon the religious exemption would easily be undone. An
employer would simply argue that it acted for religious reasons, rather than discriminatory ones. As noted below,
the courts have not accepted the view that assertion of religious motivation exempts an employer from the anti?
discrimination laws.

2 Indeed, since Barrett has advanced a prima facie case, Fontbonne cannot meet its burden of showing a non-
discriminatory reason for its decision and therefore would fail even burden~shi?ing analysis. Its only reason that
Barrett could not be a model is premised on discrimination against him based upon his same-sex marriage, which
is anything but non-discriminatory.

 

Given this conclusion, it may be unnecessary to determine whether the same undisputed facts
also amount to gender discrimination. Nevertheless, it is clear that, because he is male, he
suffered gender discrimination when he was denied employment for marrying a person Whom a
female could have married Without suffering the same consequences.

It follows that, unless Fontbonne has a defense, Barrett is entitled to judgment as to liability
on Counts I and II. The question of damages cannot be resolved on the present record,
particularly where the plaintiff seeks unliquidated emotional distress damages.

II.

Fontbonne asserts exemption from 0. 151B3 as an educational organization ?operated,
supervised or controlled by or in connection with a religious organization? under G. L. c. 1518,
4(18) (third paragraph), which provides:

Notwithstanding the provisions of any general or special law nothing herein shall be

construed to bar any religious or denominational institution or organization, or any

organization operated for charitable or educational purposes, which is operated,
supervised or controlled by or in connection with a religious organization, from limiting
admission to or giving preference to persons of the same religion or denomination or
from taking any action with respect to matters of employment, discipline, faith,
internal organization, or ecclesiastical rule, custom, or law which are calculated by such
organization to promote the religious principles for which it is established or maintained.

[emphasis added].

While this language appears in 4(18), which focuses upon housing discrimination, it contains
the language ?any action 'with respect to matters of employment.? To read it as applying only to

housing and not to employment would make the bold language meaningless. For summary

judgment purposes, at least, Fontbonne?s action was ?calculated . . . to promote the religious

 

3 This defense appears primarily in Fontbonne?s Sixth Affirmative Defense (?it acted on the basis of a bona fide
occupational qualification? and Thirteenth Af?rmative Defense (?it was permitted to do so by the terms of M.G.L.
ch. 1513?).

6

 

 

principles for which it is established or maintained.? Considered in isolation, then, the plain
language of 4(18), coupled with the facts and inferences in defendant?s favor, appears to confer
upon Fontbonne the exemption it claims in this case.

The problem is that the plain meaning of another provision of G. L. 0. 151B, considered
in isolation, compels exactly the opposite conclusion. In G. L. c. 151B, 1(5) (third sentence),
the Legislature has de?ned ?employer? to exclude only those religious organizations that ?limit[]
membership, enrollment, admission, or participation to members of that religion:?

Notwithstanding the provisions of any general or special law nothing herein shall be

construed to bar any religious or denominational institution or organization, or any

organization operated for charitable or educational purposes, which is operated,
supervised or controlled by or in connection with a religious organization, and which
limits membership, enrollment, admission, or participation to members of that
religion, from giving preference in hiring or employment to members of the same
religion or from taking any action with respect to matters of employment, discipline,
faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by
such organization to promote the religious principles for which it is established or
maintained. [emphasis added]

ontbonne is an ?employer? under this section, because it does not limit membership,

enrollment, admission or participation to Catholics. To hold otherwise would make meaningless

the bold language (which is referred below to as the ?limited membership clause?).

The court cannot apply either of the two quoted sections of 0. 151B as written without, as
noted above, making a portion of the other section meaningless. Rules of statutory construction
prohibit interpretations that make statutory language meaningless. See Flemings v. Contributory
Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000) (?In interpreting statutes, none of the
words of a statute is to be regarded as super?uous, but each is to be given its ordinary meaning
without overemphasizing its effect upon the other terms appearing in the statute . . . . If a

sensible construction is available, [the court] shall not construe a statute to make a nullity of

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pertinent provisions or to produce absurd results?). The court cannot read any of the con?icting
werds out of the statute. See Banushi v. Dorfman, 438 Mass. 242, 245 (2002). But in this case,
there is no alternative that fully complies with those canons.

There is no clear way out of this dilemma. The principal rule is that discerning a
statute?s meaning, interpret the words used in a statute with regard to both their literal
meaning and the purpose and history of the statute within which they appear.? Atlanticare
Medical Center v. Commissioner of the Division of Medical Assistance, 439 Mass. 1, 6 (2003).
The Court must also read each provision harmoniously with other language in the same statute to
effectuate legislative intent. See Commonwealth v. Raposo, 453 Mass. 739, 745 (2009).

The best way to harmonize and preserve, as much as possible, the literal meanings of
1(5) and 408) is to read an implicit limitation into the latter provision, such that the phrase
?any organization? refers, at least in the employment context, to organizations that meet the
limited membership clause. That is not altogether satisfying, since ?any? ordinarily implies no
limitation. Barrett nevertheless urges that the Supreme Judicial Court adopted this approach in
Collins when, in describing the law after St. 1989, c. 516, it said:

Under the c. 516 amendments, an organization operated for charitable or educational

purposes would be entitled to an exemption under 0. 151B for employment-related

actions calculated to promote the religious principles for which it is established or

maintained only if it is ?operated, supervised, or controlled by or in connection with a

religious organization? and it ?limits membership, enrollment, admission or participation

to members of that religion.? Under the c. 516 amendments, such an organization?s
employment-related actions will not be entitled to exemption if the organization is not

?operated, supervised or controlled by or in connection with a religious organization? or

if it does not ?limit[] membership, enrollment, admission or participation to members of

that religion.?
Collins v. Secretary of the Commonwealth, 407 Mass. 837, 843 (1990). These observations

were not necessary to the Supreme Judicial Court?s holding in Collins that c. 516 was exempt

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from the Referendum provisions of the Massachusetts Constitution. This court is, of course,
bound to follow the Supreme Judicial Court?s lead, even if the quoted statements are dicta. It is
not clear, however, that the Supreme Judicial Court intended this passage to be applicable, let

alone binding, on the facts here. The Collins decision (at ig.) acknowledged that its description

 

of the statute was ?by no means complete? and, in the immediately preceding paragraph,
described 0. 516 in a way that may con?ict with the quoted passage thus mirroring the
contradiction in the statute itself.4 Nor did the Court address the presence of the phrase ?any
action with respect to matters of employment? in G. L. c. 151B, 4(18). In case Ms leaves
room for interpretation at the trial court level, further analysis moots any debate over the binding
nature of the quoted passage, because this court reaches the same conclusion that the dicta
imply.5

Since the words? literal meanings lead to contradictory conclusions, the court reviews the
statutory purpose ?rst, followed by the legislative history. The court should construe the statute
consistent with its ?scheme and purpose.? Commonwealth v. Williamson, 462 Mass. 676, 683

(2012). It should read the statute "according to the intent of the Legislature ascertained from all

 

4 The Court said: ?The apparent effect of these amendments is that, where the action involved is calculated to
promote the religious principles for which the organization is established or maintained, such religious and af?liated
organizations are no longer subject to the provisions of c. 15 1 cited above relating to compensation; terms,
conditions, or privileges of employment; retaliatory discharges; failure to provide information regarding arrests or
convictions; maternity leave and sexual harassment.? id. The court did not restrict this observation to religious
organizations that met the membership limitation clause.

5 Surprisingly, in the 25 years since enactment of St. 1989, c. 516, no appellate court has addressed the problem.
Other authority itself 23 years old is Sparse. See Piatti v. Jewish Community Centers of Greater Boston,
Memorandum of Decision on Cross Motions for Summary Judgment No. 91-5198-D (March 4, 1992) (Izzo, J.) at 6
(?Clearly the Collins Court construes the two provisions 1 and 40 together, with the result being that
Chapter lSlB?s religious exemption is only open to organizations which limit membership?). The only MCAD
decision brought to the Court?s attention is at the hearing of?cer level (not adopted by the Commission itself) and
therefore is not entitled to deference as the agency's interpretation of the statute it is charged to administer. See
Larsen v. Sacred Hearts Parish School, 2000 WL 33665362 at *3 (MCAD, July 14, 2000) (?in legislating a religious
exemption,? the Legislature ?has abdicated its interest in regulating otherwise prohibited conduct under G. L. c.

15 13 where religious organizations take action based on religious doctrine?).

9

 

 

its words construed by the ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or imperfection to be remedied and the
main object to be accomplished, to the end that the purpose of its frame-rs may be effectuated."
In Re Adoption of Marlene, 443 Mass. 494, 498 (2005), citing Telesetskv v. Wight, 395 Mass.
868, 872 (1985).

The key enactment had two prominent purposes: (1) ?making it unlawful to discriminate
on the basis of sexual orientation? (St. 1989, c. 516 (title)) and (2) expanding the freedom of
religious organizations from the anti?discrimination mandates of G. L. c. 151B. See CLll_in_s, 407
Mass. at 852 (holding St. 1989, c. 516 exempt from the referendum ?as a ?law that relates to
religion, religious practices or religious institutions?). This a particularly stark illustration of the
general principle that:

legislation pursues its purposes at all costs," Rodriguez v. United States, 480 US.

522, 525-526 (1987) (per curiam), and "[e]very statute purposes, not only to achieve

certain ends, but also to achieve them by particular means," Director, Of?ce of Workers'

Compensation Programs V. Newport News Shipbuilding Dry Dock Co., 514 US. 122,

1 36 (1 995).

Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2044 (2012).

Still, the title of c. 516 relied upon by two dissenting Supreme Judicial Court Justices in
suggests that the two purposes do not have equal weight. Unlike the majority, the
dissenters reached the statutory purpose question and concluded that the ?main thrust bar discrimination based on sexual orientation.? Id. at 852 (Nolan and 

dissenting).6 Resolving an otherwise irreconcilable linguistic con?ict to bar discrimination based

 

6 The majority did not disagree; it did not engage in analysis of a ?primary purpose,? because it held the exclusion
from the referendum process seeks to avoid public political debate about laws involving religion mooting any
question about a ?primary? purpose. M. at 849-850.

10

 

on sexual orientation would promote the stronger legislative purpose.

Other aspects of the legislative history also provide some support for that approach.
The ?rst version of G. L. c. 151B covered only employment discrimination. See St. 1946, c. 368
(?An Act Providing for a Fair Employment Practice Its de?nition of ?employer? in 
1(5) exempted an ?educational or religious association or corporation? if not organized ?for
private pro?t.? In 1957, the Legislature added a separate provision in G. L. c. 151B, 4
prohibiting certain forms of housing discrimination and included an additional exemption for
certain religious organizations. St. 1957, c. 426. It made no change in the de?nition of employer
included in That came in 1969. St. 1969, c. 216. That amendment deleted the words
?religious association or corporation? and added the membership limitation clause to It
made no change to the religious exemption in 4. The Legislature thus has historically
maintained two separate exemptions for religious and educational organizations, and consciously
narrowed the exemption for an ?employer? in 1969 an amendment that would have
accomplished nothing if the 4 exemption still protected a broader class of religious and
educational employers.

The amendment of both exemption provisions in 1989 proved the Legislature?s

awareness of two distinct exemptions, as well as its intent to preserve those two separate

provisions. St. 1989, c. 516, 1, 14. As Collins noted, the 1989 amendments expanded

 

protection for religious organizations. At the same time, the Legislature declined to remove the
membership limitation clause from 1(5) even though the issue of increasing of 
religious protections was squarely before it. The Legislative history does not, of course,

eliminate the challenges that arise from the linguistic inconsistencies in the two provisions, but it

11

 

does con?rm some legislative choices that are consistent with applying the membership
limitation to employers who seek exemption from c. 151B.

Two additional principles of statutory construction favor the plaintiff. First, the courts
usually construe narrowly any exceptions to remedial statutes addressing a broad public policy
concern such as prohibition of employment discrimination. See Yi v. Sterling Collision Centers,
m, 480 F.3d 505, 508 (7th Cir. 2007) (noting ?the familiar principle of statutory interpretation
that exemptions from a statute that creates remedies should be construed narrowly?). If ?the
principle of narrow interpretation of exemptions is a tie breaker? it helps to break the tie (or
near?tie) in this case. That principle favors harmonizing 1(5) and 4(18) by construing the
religious employer exemption narrowly, without vitiating the limited membership clause.

Second, in case of con?ict, speci?c language controls over general language. See
generally Doe v. Attorney General (No. 1), 425 Mass. 210, 215-216 (1997). Here, the dispute
arises in the employment context. The speci?c language defining ?employer? squarely applies.
The limited membership clause implements the legislature?s intent to limit a religious employer?s
authority to discriminate against employees unless the institution itself has adopted limited
membership generally. Section 4(18) does not focus as Speci?cally upon employment. As just
noted, it arose when the legislature expanded 0. 151B beyond the original employment arena.

No rule of construction provides certainty here. They do, however, nearly all point in
favor of the plaintiff?s approach.

On the undisputed facts, Fontbonne cannot Show that it ?limits membership, enrollment,
admission, or participation to members of that religion.? G. L. c. 1518, With the

exception of its administration and theology faculty, it does not require its employees to be

12

 

Catholic. In particular, the Food Services Director does not have to be Catholic. Fontbonne has
a policy of non-discrimination with respect to sexual orientation. Welcoming students of all
faiths, its student body has included non-Catholics, including Muslims, Jews, Baptists,
Buddhists, Hindus and Episcopalians.

. It follows that Fontbonne, as employer, has no statutory exemption from the provisions of
G. L. 0. 151B that prohibit employment discrimination on the basis of sexual orientation. Barrett
is entitled to summary judgment on Fontbonne?s Sixth and Thirteenth Af?rmative Defenses and
any other defense claiming exemption pursuant to G. L. c. 151B, 4(18).



ontbonne also asserts that its Constitutional right to expressive association entitles it to
deny Barrett employment because it views his marriage to a man as incompatible with its
mission and its expectations of its employees. This requires a three-part analysis. Boy Scouts of
Am. v. Dale, 530 US. 640, 648 (2000); See Donaldson V. Farrakhan, 436 Mass. 94 (2002).

?rst, the Court must determine ?whether the group engages in 'expressive association.?
See Dile at 648. The ?First Amendment's protection of expressive association is not reserved for
advocacy groups. But to come within its ambit, a group must engage in some form of expression,
whether it be public or private.? 1d. at 648.? There is no doubt, and no dispute, that ontbonne
engages in at least some form of expression.

Second, the existence of any asserted contrary message must signi?cantly and seriously
burden expression. See Roberts V. United States avcees, 468 US. 609, 626 (1984) (assessing
whether there are ?serious burdens? on freedom of expressive association); NY. State Club

Ass'n, Inc. V. City ofNew York, 487 US. l, 13 (1988); Dale, 530 US. at 648 forced

l3

 

inclusion of an unwanted person in a group infringes the group's freedom of expressive
association if the presence of that person affects in a signi?cant way the group's ability to
advocate public or private viewpoints?) (emphasis supplied); E. at 653 (standard is whether
Dale's presence would ?signi?cantly burden? the Scouts' expression).

On the undisputed facts, Fontbonne cannot meet this test. Its mission is to provide an
education to young women rooted in gospel values and the teachings of the Catholic Church. It
encourages debate, including on issues of same-sex marriage, and does not prohibit students
from exploring and even advocating ideas and positions contrary to church teachings. Barrett
was hired as a Food Service Director, whose job duties do not include ?formally presenting the
gospel values or the . . . teachings of the Catholic Church.? Statement of Undisputed Facts 1] 13.
He was not denied employment for any advocacy of same-sex marriage or gay rights; he only
listed his husband as an emergency contact on his ?new hire? form. Nothing on that form
suggested that Barrett claimed his marriage to have sacramental or other religious signi?cance or
that it was anything but a civil marriage relationship. ontbonne presents no evidence of
advocacy by Barrett. I

That stands in contrast to Dal; There, the plaintiff?s role as Boy Scout leader included
instilling values in the scouts themselves. Barrett?s role would have been as Director of Food
Services. That job does not include instruction, let alone any leadership role or responsibility for
presenting the gospel values and teachings of the Catholic Church at Fontbonne. Moreover, the

plaintiff in Dale himself advocated gay rights in advocacy groups, seminars and newspapers. 

14

 

at 645, 65 3.7 No evidence of advocacy is present here. Both of these distinctions were central to
the holding in Die that the Boy Scouts had a right to terminate the plaintiff?s adult membership
in the Boy Scouts. See 1d,, at 655-656 (?The presence of an avowed homosexual and gay rights
activist in an assistant scoutmaster's uniform sends a different message from the
presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts
policy?).

I To be sure, Fontbonne maintains as it told Barrett during the job interview that all
Fontbonne employees are expected to model Catholic values. That statement does not, by itself,
demonstrate a signi?cant and serious burden upon Fontbonne?s expression. To hold otherwise
would swallow Qalg?s second prong by permitting an employer to grant itself constitutional
protection from anti-discrimination laws simply by saying the right words. 11., at 653 (?That is
not to say that an expressive association can erect a shield against antidiscrimination laws simply
by asserting that mere acceptance of a member from a particular group would impair its
message?). See also Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 857-858 (2d Cir.
1996); Chicago Area Council of BSA v. City of Chicago Comm?n on Human 322 Ill. App.
3d 17, 28 (2001). Moreover, ontbonne?s ?model? requirement has at least enough ?exibility to
allow employment by those who adhere to and practice other religions and those who are in
marriage between persons not baptized as Catholics. Fontbonne has a policy against
discrimination on the basis of sexual orientation. It encourages debate by its students, including

discussion of ideas that con?ict with Catholic doctrine. As an educational institution, Fontbonne

 

7 The court stated that ?here Dale, by his own admission, is one of a group of gay Scouts who have ?become leaders
in their community and are open and honest about their sexual orientation."I App. 1 1. Dale was the copresident of a
gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at
the very least, force the organization to send a message, both to the youth members and the world, that the Boy
Scouts accepts homosexual conduct as a legitimate form of behavior.. 

15

 

retains control over its mission and message. It is not forced to allow Barrett to dilute that
message, where he will not be a teacher, minister or spokesperson for Fontbonne and has not
engaged in public advocacy of same-sex marriage.

In this context, compliance with civil laws regulating employment relationships, over
objection, does not signi?cantly and seriously burden Fontbonne's expressive association. There
is clear distinction between (1) compliance with a non-discrimination mandate imposed by our
civil laws even upon unwilling employers and (2) actual acceptance of same-sex marriage as a
matter of religious doctrine or public policy. Even for students and the public, the difference is
not subtle. Understanding distinctions of that kind is at least consistent with the scope of critical
inquiry that occurs within Fontbonne?s educational program, as described by its leaders.
Fontbonne has every right, at its option, to articulate that distinction to students, parents and the
public, and to require Barrett to refrain from contrary advocacy while employed. Particularly if
it chooses to do so, there is minimal risk of confusion.

The widespread public awareness of the civil laws allowing same-sex marriage and
prohibiting employment discrimination, coupled with Fontbonne's ability to explain its position
without interference in the form of advocacy from Barrett, leaves little risk that Fontbonne's
involuntary compliance with civil law will be mistaken for endorsement of same-sex marriage. I
In these circumstances, requiring Fontbonne to retain a food service director who has done
nothing more than list a same?sex husband as an emergency contact does not signi?cantly and
seriously burden Fontbonne?s expressive association.

Third, even if the inclusion of an unwanted member rises to the high level of a serious

burden, ?the freedom of expressive association, like many freedoms, is not absolute. [The

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Supreme Court has] held that the freedom could be overridden 'by regulations adopted to serve
compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through
means signi?cantly less restrictive of associational freedoms.? 530 U.S. at 648, quoting
Ro_ber_t?, 468 U.S. at 623.

The Commonwealth has a compelling interest in prohibiting discrimination against
historically disadvantaged groups. See, e.g. Bob Jones Univ. v. United States, 461 U.S. 574, 604
(1983) (religiously-based ban on interracial dating); Megs, 468 U.S. at 626 (exclusion of
women from all-male civic organization). That interest is rarely stronger than in the employment
context, notwithstanding religious objections. See Burwell v. Hobbv Lobby Stores. Inc., 134 S.
Ct. 2751, 2783 (2014) (rejecting ?the possibility that discrimination in hiring, for example on the
basis of race, might be cloaked as religious practice to escape legal sanction? because ?[t]he
Government has a compelling interest in providing equal opportunity to participate in the
workforce without regard to race and prohibitions on racial discrimination are precisely tailored
to achieve that critical goal?); Flagg v. Alimed, 466 Mass. 23, 28 (2013). The Commonwealth
has recognized Constitutional protection for same-sex marriage for some time, and the federal
constitution now extends similar protection as well. Goodridge v. Dept. of Public Health, 440
Mass. 309 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015). That demonstrates the strength
of the Commonwealth?s interest in prohibiting discrimination here. That is all that Dile?s third
prong requires. Recognizing the Commonwealth?s compelling interest in no way suggests that

ontbonne agrees with the Commonwealth?s anti-discrimination policy, as long as it complies

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with the law imposed by the civil authorities upon employers generally, even under protest.8

Fontbonne?s argument on this point depends upon a legally untenable distinction:9

Here the appropriate question is whether there is a compelling interest in eliminating

discrimination by private, religious employers, against spouses to a same-sex marriage.

Stating that there is a compelling interest in the elimination generally of employment

discrimination, or the elimination generally of discrimination of the basis of sex or sexual

orientation does not address the issue.
Def?t?s Opp?n to Pl.?s Mot. for Summ. J. at 12. As noted above, discrimination against those in
same-sex marriages is discrimination on the basis of sexual orientation. While the religious
nature of the employer does bear upon other issues (including prong 2 of it does not lessen
the impact of such discrimination or the interest in eliminating it. 10 The Commonwealth?s
interest in eliminating sexual orientation discrimination in employment remains compelling.

On the undiSputed facts, Fontbonne?s expressive association defense is ripe for summary
judgment. Whether the undisputed facts of this case signi?cantly affect associational rights, and
whether any burden is outweighed by compelling state interests, are ultimately questions of law
for the Court. Cf. 530 US. at 648-649 (?Because this is a First Amendment case where the
ultimate conclusions of law are virtually inseparable from ?ndings of fact, we are obligated to
independently review the factual record to ensure that the state court's judgment does not

unlawfully intrude on free expression?).

Requiring Fontbonne to refrain from discriminating in hiring a Food Services Director

 

8 Fontbonne distorts the facts and issues when it claims (Det?t.?s Opp. to Pl.?s Mot. for Summ. J. at 14) that, in this
case, ?the Commonwealth? asserts ?a compelling interest in requiring a private religious school to adopt one or
another civil de?nition of marriage.? Applying generally applicable employment discrimination law does not
require Fontbonne to adopt any view of civil marriage, and so there is no occasion to weigh any such interest.

9 Neither the existence of discrimination in the eyes of the law, nor the Commonwealth?s interest in extirpating it,
varies depending upon the actor?s belief that it is not being discriminatory.

?0 Fontbonne?s distinction appears to mirror the analysis in Desilets, but that 1994 decision pre-dated the decision,
six years later, in The policies addressed in Desilets are still relevant, but Dale breaks down the analysis into
separate questions in a manner not employed by Desilets.

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who, without more, reports on a ?new hire? form that he is married to a husband does not
signi?cantly affect its associational rights and violates state anti-discrimination laws grounded in
compelling state interests. Fontbonne?s expressive association rights provide no defense to the
claims in this case.

IV.

Fontbonne also claims the protection of the Free Exercise Clause. It does not, and could
not, claim that employing Barrett would in any way make it complicit in the same-sex marriage
itself, contrary to its religious beliefs. Compare Desilets, 418 Mass. at 323. Rather, it claims
entitlement to the ?ministerial exception? recognized under the Free Exercise clauses of the state
and federal constitutions. See Hosanna-Tabor Evangelical Lutheran Church School v. EEOC,
132 S. Ct. 694, 706 (2012).

In Hosanna?Tabor, the Court found the employee to be a ?minister? exempt from the
provisions of employment discrimination law, based upon ?the formal title given Perich by the
Church, the substance re?ected in that title, her own use of that title, and the important religious
functions she performed for the Church.? M. at 708. It said: ?the fact that an employee has been
ordained. or commissioned as a minister is surely relevant, as is the fact that signi?cant religious
training and a recognized religious mission underlie the description of the employee?s position.?
At issue was ?the interest of religious groups in choosing who will preach their beliefs, teach
their faith, and carry out their mission.? 1d.

Indisputably, none of these considerations apply to Barrett?s position as Director of Food
Services. He has no duties as an administrator or teacher of religious matters. Fontbonne bases

its case on this point exclusively upon its own statement that each of its employees is a ?minister

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of the mission? to support its claim to this exemption. Assuming that ontbonne meant this
statement literally and not metaphorically, only Justice Thomas espoused the View that the
ministerial exception applies whenever the religious organization ?sincerely considered [the
employee] a minister.? Hosanna?Tabor, 132 at 711 (Thomas, ., concurring). That none
of the other justices agreed with a View so clearly expressed to them strongly suggests that more
is required. Indeed, to apply the ?ministerial? exception here would allow all religious schools to
exempt all of their employees from employment discrimination laws simply by calling their
employees ministers. If that were the rule, most of the discussion in Hosanna-Tabor would have
been unnecessary.

While Hosanna?Tabor did not ?adopt a rigid formula for deciding when an employee
quali?es as a minister? at 708), the undisputed facts here do not permit a conclusion that
Barrett was hired as a ?minister? under any version of this doctrine considered by a majority of
the United States Supreme Court. Indeed, the relatively narrow scope of the ministerial
exception may shed light on the scope of expressive association rights regarding employees

whose job does not include instruction706.

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CONCLUSION
For the above reasons, the Court ORDERS AND ADJUDGES AS FOLLOWS:
1. ontborme Academy?s Motion for Summary Judgment is DENIED.

2. The Plaintiff Matthew Barrett's Motion for Summary Judgment is ALLOWED AS TO

LIABILITY ON COUNTS I AND H.

3. The Parties shall address whether this case needs to be scheduled for a trial on damages,

which shall occur as soon as the court?s trial sq, edule permits.

  

I
Dd?glas H. Wilkins
Associate Justice

Dated: December 16, 2015

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