Hard Cases & Bad Law

If someone wants to worship God in accordance with Catholic beliefs, no problem.

If someone wants to marry a person of the same sex in accordance with his/her affection and preference, no problem.

If someone wants to run a company in accordance with his/her religious values, no problem.

The problems arise when these three situations (and countless others) intersect. For example, if the Catholic works at a law firm and refuses to do work on a divorce case, what then? If a Catholic owns a child care center and does not want his/her employees to publicly "flaunt" their homosexuality, does that mean that all employees have to live in "the closet" or risk losing their jobs?

This is the genesis of the phrase, "Hard cases make bad laws." For example, we certainly have the right to wear t-shirts with statements on them, but does a student have the right to wear a "Bong Hits for Jesus" t-shirt, to school? The Supreme Court said yes, but does that mean that the student should wear that shirt?

I ramble all of this in light of a story I read recently in the Indianapolis Star. Here are some excerpts:

Students, parents and alumni are rallying behind a Roncalli High School guidance counselor who they say may be fired after administrators found out she was married to a woman.

The south-side Catholic school and Archdiocese of Indianapolis defended their position regarding Shelly Fitzgerald after her supporters began criticizing the school on social media over the weekend.

"As role models for students, the personal conduct of every teacher, guidance counselor and administrator and staff member, both at school and away from school, must convey and be supportive of the teachings of the Catholic Church," Roncalli officials posted on the school's official Facebook page Sunday night.

This has implications galore. For starters, if the counselor can't be fired, is that not an infringement on Roncalli's First Amendment rights? If the counselor can be fired, isn't that an infringement on the counselor's 14th Amendment substantive due process rights, particularly given that Roncalli receives public money?

As the title says, hard cases make bad laws. I don't think that the guidance counselor should be fired, as a function of what is right and wrong. I'm not sure as to whether the counselor can be fired, as a function of what is legal.

I would, however, advise Roncalli to tread lightly. While Indiana, presently, is shoveling public money to religious schools, the political worm always turns, particularly when you taunt fate and encourage the worm to turn. How many more schools doing something like this would eventually result in a revolt against the idea of giving our tax money to schools that aren't accountable to our constitution? If religious institutions can't follow our laws, in accordance with their stated religious mission, perhaps we shouldn't expect them to . . . perhaps we shouldn't fund them.

Of course, on the other hand, if Roncalli is forced to hire and retain employees who it sees as antithetical to its mission, how long before it and other schools like it turn their back on voucher programs and essentially say, "There are too many strings attached. We'll go back to the old way of doing things."

Again, hard cases make bad laws. When you mix the public and private sectors, it is really important to properly delineate between those functions that are governmental functions (and thus subject to all of the laws, regulations, and (yes) the Constitution, and those functions that are non-governmental.