COLUMN By TIM GORDINIER, Ph.D.
Nov. 30, 2005
A Catholic school in Queens, N.Y. recently fired an unmarried 26-year-old teacher for becoming pregnant.
Michelle McCusker, a pre-kindergarten teacher, is fighting back against St. Rose of Lima, her former employer. She has already enlisted the services of the American Civil Liberties Union to sue the Diocese of Brooklyn for wrongful termination and discrimination.
Does she have a case? Doesn't the firing of someone for getting pregnant in this day and age smack of a medieval mindset?
Actually, according to the school, her pregnancy is only proof of her wrongdoing. It is the pre-marital sex they object to – a clear violation of Catholic teaching.
Of course, there would have been no proof if she had quietly gotten an abortion. That would have been an even bigger sin in the eyes of the Catholic Church, but apparently the lesson to be learned here is that it's better to hide your transgression by compounding it, rather than owning up to your "moral lapses." Whether God notices or not really doesn't count for much these days. The only sin here is getting caught.
Then there is the question of equal treatment. Would the school have fired a male teacher for fooling around outside his day job? Even assuming he got someone pregnant, would he likely have to undergo a paternity test as a condition of further employment if the mother made an allegation? Probably not.
There seems to be a double standard here. Still it isn't necessarily discriminatory to punish "wrongdoing" you can prove, and not punish what you can't or have difficulty proving. Otherwise, most prosecutors in this country would be in big trouble. It's the same old story: it's just easier to punish women and not men, when it comes to their "reproductive misconduct," that's all.
The supreme irony here, of course, is that this school wouldn't have given Mary, the mother of Jesus, the time of day if she tried to mount the "virgin birth" defense. Not that McCusker is making such an exalted claim, but it's good to see that in our skeptical, modern era even the Catholic Church isn't as credulous as it used to be.
All right, so my last shot might have been a little flippant. O.K., so maybe we shouldn't dismiss this controversy with an air of righteous indignation, because it goes to the very heart of an important question that this nation has been grappling with for some time.
Where do we draw the line between the state's ability (and duty) to keep religious morality out of the public sphere and the liberty of individuals and private institutions to teach and enforce their own morality, without government interference?
First of all, we have to bear in mind that we’re talking about behavior outside of work here -- not on the job. Still, what if one of the teachers had been caught on TV marching in a Ku Klux Klan parade? Certainly he has the First Amendment right to do so, but does that mean the school can't fire him? Aren't liberals creating a double standard when they give private institutions leeway to fire bigots that are practicing their values, but want government to require private institutions to tolerate or even accept so-called "permissive" lifestyles that might be just as immoral in the eyes of conservatives?
Shouldn't a religious institution have some right to maintain its moral standards, especially in a teaching environment, when it is trying to set a good example for young children about the evils of sex outside marriage? Not that pre-K kids are necessarily going to know what's going on when a pregnant teacher starts to show. And besides, aren't forgiveness and mercy supposed to be part of this particular religion's teachings?
Yet for many people this is largely beside the point. To them, a religious institution has that right to do pretty much whatever it pleases, even if you or I might think they're missing the whole point of Christianity's more humanistic teachings.
There may be an easy way out. We could forget about addressing the underlying moral principles involved and just decide the case solely on its legal merits.
But what does the law say? The Constitution is of little help in this case. The Bill of Rights usually defends the liberty of individuals, not institutions, so the school probably cannot fall back on First Amendment religious freedom arguments. The real question is whether there are anti-discrimination laws on the books that regulate what religiously-affiliated institutions can and can't do -- especially when they serve the public at large and hire outside their faith.
Again, most anti-discrimination laws in this area tend to favor the individual -- not the religious organization. A few years back Catholic Charities lost a case in Buffalo, N.Y. that dealt with a similar factual situation. There was even a big case in California that held that government could force religiously-affiliated organizations like Catholic Charities to carry contraceptive coverage in their employees' health plan, without being accused of discrimination or violating religious freedom.
But a teaching institution is far different from a religious charity, or even a religious hospital. The salient issue here is whether a religious school has the right to determine the future employment status of their employees when they fail to meet the school's moral standards.
Some will argue that this is a big difference. Why else do parents choose a religious school, instead of sending their child to a public school? The school also has to act in the best interest of their clients -- parents and children -- not their employees, right? Again, it simply isn't relevant whether we in the outside world might disagree with an institution that fires one of its workers because she had a baby out-of-wedlock.
But, in fact, it is. When religion enters into the business world, or even the not-for-profit social welfare area, it becomes fair game for government regulation. It's up to the legislature -- no judicial activism here -- to decide whether such regulation would make for sound social policy.
Finally, we might dismiss the lawsuit on the grounds that McCusker may have violated her contract by simply lying on her job application, or during her interview, about being in conformity with Catholic morality. Didn't she already know she was pregnant when she took the job and that this was a deal breaker?
Of course, inquiring into one's personal life in a job application -- even at a religious institution -- is dicey business. It's one thing to ask if you've ever been convicted of a felony. It's another to inquire whether you've had an abortion, been pregnant, had pre-marital or homosexual sex. Isn't that being a tad bit intrusive?
There is something incongruous and disproportionate about the Catholic hierarchy spending all its time, effort and money protecting and hiding pedophile priests, but dismissing a young, enthusiastic teacher for getting pregnant. Even if the church doesn't lose this one in the court of law -- as I think it should -- it should at least lose it in the court of public opinion.
Tim Gordinier, Ph.D., is the director of public policy of the Institute for Humanist Studies. A registered lobbyist for humanism, he earned his doctorate in public law with a concentration on the religion clauses of the First Amendment. He is the author of the online course Religion and the Constitution, offered through the Institute's Continuum of Humanist Education. For information about the IHS public policy department, visit: http://americanhumanist.org/policy.html. To receive Gordinier's NYS legislative updates by email, visit:http://americanhumanist.org/lists/alllists.html
[Editor's Note: Regarding our cheeky headline, we are aware that the immaculate conception actually refers to Mary's conception and not the virgin birth of Jesus.]