February 15, 2016
by John Kaempf

While Same Sex Marriage Is Now Legal, Oregon Law Allows Religious Institutions Like Schools And Churches To Refuse To Hire and To Fire Persons Based On A “Bona Fide Religious Belief” About Their Sexual Orientation or Marital Status.

Same sex marriage is now legal nationwide pursuant to a 2015 ruling by the U.S. Supreme Court in the
Obergefell case. However, Oregon religious entities should keep in mind that, pursuant to an Oregon statute, they are not required to hire or continue to employ someone in a same sex marriage.
They cannot be held liable for employment discrimination based on such actions if they have a “bona fide religious belief” against same sex marriage.

Oregon Revised Statutes (ORS) 659A.006(1) makes it an unlawful employment practice to discriminate based on “sexual orientation” or “marital status.”

However, ORS 659A.006(5), which was enacted in 2007, contains an exemption from ORS 659A.006(1) for “bona fide churches” and other “religious institutions.”

ORS 659A.006(5) states: “It is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation: (a) In employment positions directly related to the operation of a church or other place of worship, such as clergy, religious instructors and support staff; (b) In employment positions in a nonprofit religious school, nonprofit religious camp, nonprofit religious day care center, nonprofit religious thrift store, nonprofit religious bookstore, nonprofit religious radio station or nonprofit religious shelter; or (c) In other employment positions that involve religious activities, as long as the employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution.”

However, in 2015, a Massachusetts trial court judge, applying a similar Massachusetts statute, held that an all-girls Catholic high school could not refuse to hire the plaintiff as its Director of Food Services because he was in a same-sex marriage.

The court in Barrett v. Fontbonne Academy (December 16, 2015), applied a Massachusetts statute
providing, unlike Oregon’s statute, that only religious organizations that limit their membership or enrollment “to members of that religion” are exempt from a Massachusetts statute prohibiting employment discrimination based on sexual orientation. The defendant Catholic school did not require all of its employees and students to be members of the Catholic religion and, therefore, could not rely on the Massachusetts statute.

As shown above, Oregon law, as stated in ORS 659A.006(5,) does not contain this limitation and thus affords greater protection to religious organizations concerning their hiring practices.

The Massachusetts court in the Barrett case also rejected the Catholic high school’s defense
based on the First Amendment right to freely exercise religion and to freely associate. The court
relied in part on the fact that the position of Director of Food Services was not a “leadership
position” and did not involve instruction in the “values” or “teachings” of the Catholic Church.
The court held that the defendant school could not rely on the First Amendment “ministerial exception”
to employment discrimination laws because the plaintiff had “no duties as an administrator or teacher of
religious matters.”

The court in Barrett also relied on the U.S. Supreme Court’s 2015 decision in the Obergefell case legalizing same sex marriage and recognizing it as a constitutional right.

It is not currently known whether the decision in Barrett will be appealed.

The split between Oregon’s statute exempting religious organizations from laws that prohibit employment discrimination based on sexual orientation or marital status, ORS 659A.006(5), and decisions like the Barrett case from Massachusetts, as well as the differing state laws nationwide, make it likely that the U.S. Supreme Court will need to resolve this conflict about an important issue of federal constitutional law.

For now, ORS 659A.006(5) is valid. Therefore, churches, religious schools, and other religious institutions in Oregon should keep ORS 659A.006(5) in mind, as well as the First Amendment right to freely exercise religion, to protect their right to hire and fire employees consistent with their bona fide religious beliefs. This includes the belief among many Christians that marriage is only between one man and one woman.