Did the University of Kentucky commit religious discrimination?  It sure looks that way.

The University decided to construct an astronomical observatory.  It considered a number of candidates for the directorship of the new observatory, including Martin Gaskell, at the time a professor at the University of Nebraska-Lincoln.  The search committee eventually ranked him first among all the applicants, and started checking references.  They discovered that he had written an article called “Modern Astronomy, the Bible, and Creation.”  The article lists quotations from scientists and philosophers about the relationship between science and religion; it describes the competing interpretations of the creation account in Genesis; it sets forth some of the scientific and religious explanations for the diversity of life on earth; and it sets out some of the scientific evidence for the proposition that the universe came into existence at a particular point in time.  It also describes certain of the ramifications that tend to flow from the different understandings of origins.  To be sure, the essay does not purport to be utterly “neutral” on these matters, but it is marked by a healthy measure of intellectual humility and tentativeness.

Apparently this was still too much for certain members of the UK search committee.  It appears as though a candidate’s unwillingness to wholeheartedly embrace absolute atheism renders him or her ineligible to do scientific work at the University of Kentucky.  One member of the committee revealed that he would “be worried” every time Gaskell might be “let out in public.”  UK biology professors consulted by the search committee declared that the biology department would refuse to cooperate with the physics and astronomy department on a proposed ”outreach science team” if hired “one of these types of individuals.” 

Another member of the committee wrote: “Clearly this man is complex and likely fascinating to talk with — but potentially evangelical.”  Uh oh . . . not that!  A potential evangelical!  Can’t have any of those around here!

To his credit, one member of the search committee complained that Gaskell was being denied the job because of his religious beliefs.  He wrote that “no objective observer could possibly believe” the decision was based on any reason other than religion and that the whole process caused him to question UK’s commitment to religious freedom.  He predicted that “other [pretextual] reasons will be given for this choice when we meet.”

Sure enough, Gaskell didn’t get the job, and UK has pointed to other alleged reasons in the subsequent litigation.  Shockingly, UK admits that it declined to hire Gaskell because of his religious views — but argues that the law allowedit to do so.  UK essentially argued that if it hired Gaskell, he would inevitably use his position in an inappropriate way to foster his personal religious views.  In addition to forbidding covered employers from considering religion in their employment decisions, Title VII of the Civil Rights Act of 1964 also imposes upon such employers an affirmative obligation to accommodate their employees’ religious exercise (e.g., Sabbath observance), but only if such accommodations are “reasonable.”  UK argued that if it hired Gaskell, it would inevitably confront requests for unreasonable accommodations, and, therefore, it could pre-emptively decline to hire him in the first place.  This is an astonishing argument.  Gaskell never requested any sort of accommodation or sought an exemption from any generally applicable rule.  UK is essentially arguing that the law allows it to decline employment to Christians because of what they might do.

In an important victory for Gaskell, a federal district court has permitted his employment discrimination lawsuit against the University to go to trial.  Congratulations to our friends at the American Center for Law & Justice, which represents Professor Gaskell.  Trial is set for February 2011.