Meridith Sandherr’s heart sank when, while preparing to interview for a position at Bishop John A. Marshall School in Morristown, she realized the school was Catholic.
She had been excited about the opportunity. Sandherr and her wife had been looking for a way to relocate to Vermont from Maryland. The couple were attracted to the Green Mountain State’s natural beauty, had many friends who lived there and liked Vermont’s “open-minded” reputation.
But Sandherr — who had been out of the closet for three decades — had no desire to hide who she was. Anxious that her sexuality would be a deal-breaker, she reached out to friends in the area, who strongly encouraged her to pursue the job anyway.
“I said, ‘What about the gay thing?’ And they were like: ‘It’s Vermont. It’s progressive. Like, it won’t matter. Just don’t worry about it,’ ” she said.
Nervous, Sandherr wrote to the school ahead of her interview, asking if the families and teachers at Bishop Marshall would accept that she was married to a woman.
“Given what you’ve shared, I do not believe you would be able to sign our employment contract, based on its terms,” Carrie Wilson, Bishop Marshall’s head of school, wrote back in response. “Wish you luck as you continue your search and hope you do end up in Vermont — it’s a lovely place to live and work!”
The independent Catholic school’s employment contract “includes language that requires employees to support the teachings of the Catholic Church,” Wilson told VTDigger. “It seemed unreasonable and unfair to expect (Sandherr) would be willing to sign off on teachings that do not support her marriage.”
It’s likely that what Bishop Marshall did could be perfectly legal, although at a public or secular private school, it would be textbook employment discrimination.
Peter Teachout, a constitutional law professor at Vermont Law School, pointed to last summer’s U.S. Supreme Court decision in Our Lady of Guadalupe School v. Morrissey-Berru, in which the court held that teachers at Catholic schools could be considered “ministers” and therefore were exempt from anti-discrimination protections.
But after a volley of litigation from powerful conservative legal groups, schools like Bishop Marshall are now eligible for a large tranche of public funds in Vermont. Attorneys for families seeking to send their children to parochial schools on the public’s dime successfully argued that exempting children at religious schools from the state’s voucher program amounted to religious discrimination.
Now, Vermont must decide if it wants to attach any conditions to those funds, although it faces a perilously murky legal landscape. Another U.S. Supreme Court case, Fulton v. City of Philadelphia, might have provided a definitive answer on the question of whether governments can condition a religious entity’s participation in a public benefit program on its adherence to anti-discrimination laws.
Instead, the court’s narrow ruling, which came out last week, ducked all the important questions.
The justices in Fulton found in favor of Catholic Social Services, a foster care agency that refused to place children with same-sex families, but did so on highly technical grounds, Teachout said.
With Fulton, the court had been expected to overturn Employment Div. v. Smith, a Supreme Court decision from 1990 in which the justices held that the government could enforce regulations of general applicability that incidentally burdened religious practice. Instead, the justices ruled that because officials with the city of Philadelphia retained the right to grant exemptions, the anti-discrimination policy itself was not generally applicable.
So can Vermont say voucher money cannot be used at schools that discriminate against protected classes?
Teachout believes so, as long as that law makes clear that it applies to religious and secular schools, without any exceptions whatsoever.
“The simple answer — although it’s likely to be challenged — is yes, Vermont still can do that after Fulton. As long as this law is a neutral law of general applicability,” Teachout said.
The scholar concedes this is all “in theory,” and notes that the U.S. Supreme Court’s conservative majority, which has handed the religious right a series of victories, may ultimately disagree. Still, he would like to see lawmakers press the issue.
“It’s really important that taxpayers of the state of Vermont are not being asked to support with their tax dollars discriminatory policies by institutions that run counter to the fundamental values of the state, as reflected in both legislation and in the Constitution,” Teachout said.
In the just-completed legislative session, lawmakers discussed whether to impose guardrails on public funds sent to religious schools but adjourned without taking action. Still, Senate Education Chair Brian Campion, D-Bennington, said he has no intention of dropping the subject.
His committee has just been awarded extra funds from Senate President Pro Tem Becca Balint’s office, he said, to meet in the off-session in hopes of preparing a proposal for when lawmakers reconvene in January.
“We just need to be crystal clear about Vermont values on this issue. And I think most Vermonters believe firmly in the separation of church and state. And certainly, most Vermonters believe that (public) dollars should not be going to any kind of discriminatory practices,” Campion said.