In contemporary political folklore in America the state of Massachusetts is as “blue” as they come, a paragon or bugbear (depending on where you stand) of progressive ideology. This post deals with two news items from this great state (in which I happen to live). They suggest that things are a bit more complicated. Both are from the December 18, 2015 issue of The Boston Globe.

1. In 2013 Matthew Barrett was hired as director of food services in a Catholic all-girls school in Milton, MA. The school is sponsored by the Congregation of the Sisters of St. Joseph, though it is operated as an independent organization headed by a lay person. When being hired Barrett had to fill in the usual paperwork; in the column asking for an emergency contact he named another man, Ed Suplee, identified as “husband”. Thereupon the employment offer was promptly withdrawn as a man in a same-sex marriage is unacceptable as an employee of a Catholic institution. The Globe story showed a photo of the two pleasant-looking men sitting side by side. Barrett sued in state court, claiming illegal discrimination because of sexual orientation. Just now Judge Douglas Wilkins ruled in favor of Barrett, against the school—its action because of Barrett’s same-sex marriage is undisputed… and amounts to “discriminatory intent as a matter of law”.

Ben Klein, Barrett’s lawyer, who specializes in sexual discrimination cases, observed: “The decision marks the first time a judge has rejected a religious organization’s assertion that it has a constitutional right to fire employees because they were spouses in same sex marriages. Marriage equality has been the law of Massachusetts for over a decade. But you can’t have equality if you can get married on Saturday and fired on Monday!” In similarly outraged tones, the Catholic Action League of Massachusetts called the court’s decision “a frontal assault on religious freedom” and spelling “an appalling subordination of the First Amendment to the Massachusetts gay rights law”. At issue here is the so-called “religious exemption” granted by the courts to institutions and individuals who objected to this or that law on grounds of religious conviction; in comparable cases, both federal and state courts have tended to favor a broad range of the exemption. At this time of writing it is not clear whether the school will appeal. In the meantime Barrett has been employed by a Milton public school, clearly more interested in his culinary skills than his sexual preferences.

2. Harvard College has taken an impeccably progressive action, then (rather surprisingly) withdrew it with an apology when students (just as surprisingly) protested against it. (Is there a conservative underground at Harvard?) In a collaborative project of the Office of the Undergraduate Dean and the Office for Equity, Diversity, and Inclusion issued and started to distribute placemats to serve as guides for students discussing “hot topics” with family during the upcoming holiday break. The placemats were laminated and inscribed “Holiday Placemat for Social Justice: A placemat guide for holiday discussions on race and justice with loved ones”. The text consisted of hypothetical questions with suggested answers on race relations, “Islamophobia” and Syrian refugees, student activism, and the current demand by some students that the traditional term “house master” be changed because its association with slavery (actually it has already been changed, after student demonstrations).

It is not difficult to reconstruct the suggested answers to these topics. The Globe story gives the following example: On a placemat with a space titled “Black Murders in the Street”—the question: “Why didn’t they just listen to the officer? If they had just obeyed the law, this wouldn’t have happened”—the suggested answer: “Do you think the response would be the same if it was a white person being pulled over? In many incidents that result in the death of a black body in the street, these victims are not breaking the law and are unarmed.” [I try to imagine an upper-class WASP family—the sort that pays the full tuition at Harvard—sitting around the festive Christmas dinner while their visiting offspring reads from one of these placemats.]

Students from the Harvard Undergraduate Council wrote: “We reject the premise that there a ‘right’ way to answer the questions posed. We do not think that officials of the university should be in the business of disseminating ‘approved’ positions on complex and divisive political issues.” The relevant university officials said that their placemat messages were “not effectively presented” and “ultimately caused confusion”—“we offer our sincere apologies for this situation.” [They did not apologize for a chronic situation in elite academia (to which Harvard proudly belongs) where both teachers and students are harassed, disciplined, and in the case of teachers threatened with loss of employment, if they do not give the “approved answers” to the progressive agenda—or say anything that might “trigger” discomfort in any listener.]

What do these two cases have in common? And what not?

Both involve intrusions into the private sphere: In the first case, Matthew Barrett’s employer tried to intrude into the way in which he has chosen to arrange his private life. In the second case the Harvard bureaucracy tries to intrude into the way in which students, off campus, celebrate in the most private circle of their family. [If one has a sense of historical memory, it is ironic that Barrett’s lawyer invokes states’ rights and “nullification” against federal power, just as the same invocation was made from John C. Calhoun to George Wallace in defense of the South’s “peculiar institution” of slavery and segregation!] But of course the Sisters of St. Joseph and Harvard University are themselves private institutions, much weaker than the federal government. The former did try to do real harm to Matthew Barrett as against Harvard’s causing some embarrassment around a family’s dinner party—though of course outraged WASP donors could do real harm to Harvard in the long run.

I would suggest that one (not a lawyer) should be cautious to take a position in these cases. I strongly tend toward the view that religious freedom is such a fundamental human right that it usually trumps most other rights (such as the right of a gay couple to purchase services from a caterer for their wedding, which the caterer regards as sinful—after all, there probably are lots of other caterers eager for their business). So I have been sympathetic with Catholic nuns who (successfully) resisted the Obama administration which wanted to force them to offer condoms to their employees. I agree that this is a matter of First Amendment rights, even though I find the Catholic view of contraception thunderously implausible. It is a very different matter if a group of other nuns were allowed to fire (for heaven’s sake) a cook for not being an exemplar of Catholic virtue! (What were they afraid of? That he would speak against the Immaculate Conception while serving hamburgers to the students?)

In any case, it would be better if (I apologize for the rather un-American suggestion) that such issues had best be settled by good will and common sense, rather than by being thrown right away into the grinding machinery of the legal system.

Note: The tardy publication of the above essay, Peter Berger would like his readers to know, was due to his computer going on the fritz. It is an antique—Lincoln wrote the Gettysburg Address on it.