The never-ending search for a just balance between the liberties of individuals and the community’s right to govern itself is one of a free society’s toughest challenges — and most intriguing riddles.
Our era’s culture-war collisions among the claims of various minority groups have made this balancing act even more precarious.
Consider two disputes concerning employment and education, decided only last month by courts on either coast. It might prove revealing to ask yourself how each high-wire performance, and the balance between them, feels to you.
On Dec. 16, a state court judge in Massachusetts ruled on a lawsuit involving a Catholic girls school that withdrew a job offer when it learned of an applicant’s same-sex marriage. The school claimed a religious exemption from Massachusetts’ anti-discrimination laws. It argued that if it were forced to employ Mathew Barrett as its food-services director, despite his marriage to another man, the contradiction would undermine the school’s religious teaching that homosexual relationships are wrong.
Barrett argued that in his work overseeing kitchen operations he would not affect the school’s religious message. So his private beliefs and lifestyle ought not deny him the full protection of anti-discrimination laws.
Weeks later, on Dec. 29, a controversy out of Hawaii was resolved by the U.S. Ninth Circuit Court of Appeals. The University of Hawaii had denied teacher certification, and thus the chance to teach high school, to a student already sporting math and physics degrees. The primary trouble with Mark Oyama lay in views he had expressed in academic papers he wrote for education classes.
Oyama had written that in his opinion online sexual “child predation” should be legalized — along with actual adult sex with children, if “consensual.” He also argued that the “mainstreaming” of disabled schoolchildren in regular classrooms is a mistake.
The school argued that Oyama’s ideas rendered him unfit to be a teacher. He countered that his opinions were merely intellectual exercises that he would neither act upon nor express as an educator — and were in any case fully protected as free speech.
So here were two schools, both rejecting otherwise qualified employment candidates over a clash of beliefs and values. Each school believed the candidate could not uphold the school’s standards or fulfill its mission.
Each case involved constitutional freedoms. Fontbonne Academy, the parochial school in Massachusetts, certainly has the religious liberty to defend and promote its traditional beliefs about marriage and sex. Gays in Massachusetts and across America have certainly won the equal protection right to same-sex marriage. And Mark Oyama, the Hawaii grad student, certainly has the freedom of speech and academic freedom to set forth his creepy ideas about child sex and his contrarian views on special education.
Another issue raised by each dispute is to what extent the right to live and speak as one pleases also confers a right to a particular job or profession.
Let us pause for a moment while you consider what your instincts tell you about how these cases should have turned out …
And here’s how they did turn out:
In Massachusetts, Judge Douglas Wilkins found Fontbonne Academy guilty of illegal discrimination against Mathew Barrett. The school, he ruled, has no religious exemption from anti-discrimination law in this situation.
But the Ninth Circuit found in favor of the University of Hawaii. Denying Mark Oyama a teaching career didn’t violate his free-speech rights because his views evidence an inability to meet applicable professional standards.
For sure, Oyama’s notions about adult-child sex will rally few defenders, even as theory. But civil liberties purists will remind us that free speech and academic freedom mean little if they crumble as soon as opinions become sufficiently unpopular.
Meanwhile, the fears of traditional marriage defenders that tolerance for their now-disapproved beliefs will steadily shrink with the legalization of same-sex marriage seem reinforced by the Massachusetts ruling, which is reportedly the first of its kind rejecting an indisputably religious organization’s refusal to hire an applicant with a same-sex spouse.
In one of these rulings, a governmental body was empowered to reject a job seeker (Oyama) for exercising a fundamental constitutional right. In the other, a private employer (Fontbonne) asserting its own fundamental right was prohibited from doing roughly the same thing. The clearest consistency in the pattern seems to be this: In both rulings, government and majority opinion won out over dissenters’ rights.
Conservatives might add that both of these outcomes seem likely to please progressive palates. The conservative problem is that the balance between freedom and common sense many of us might be drawn to — upholding religious freedom in the rejection of one job seeker, while limiting freedom of speech in the rejection of the other — isn’t altogether more consistent or clearly free from bias.
But the consistent, principled, purist approach — standing by constitutional liberties all around — would bar the married, gay food-services director and put the child-sex theorist in high school classrooms.
No wonder our search for balance in such matters is so divisive and endless.
D.J. Tice is at Doug.Tice@startribune.com.