From the WSJ Opinion Archives
HOUSES OF WORSHIP
The Gatekeepers
Who decides who can teach at religious schools?
Tabloid readers might have noticed the case of Michelle McCusker, fired in November from her job teaching at a Catholic school in Queens, N.Y., for becoming pregnant out of wedlock. She has filed a complaint with the Equal Employment Opportunity Commission, and her attorneys at the New York Civil Liberties Union say that, regardless of the commission's findings, Ms. McCusker plans to sue the school. There is no scarlet letter involved, but the whole business has created a rare modern moment: a scandalous pregnancy.
Further along in such a legal proceeding is Michele Curay-Cramer, fired from her job teaching at a Catholic school in Wilmington, Del. She had signed a petition supporting abortion rights and volunteered at a Planned Parenthood facility. Ms. Curay-Cramer's case was just heard by the Third U.S. Circuit Court of Appeals.
There are a number of differences in the cases of the two Michelles, but they both illustrate some legal confusion in the matter of "religious liberty." The words usually bring to mind individuals who wish to do something as an expression of their faith--pray in school, wear a beard at work--and find themselves prevented from doing so by an institution's policies. But the reverse is becoming more common: institutions claiming that their own religious liberties are being violated by individuals who insist on wandering outside religiously guided rules and requirements.
Frank DeRosa, a spokesman for the diocese that oversees Ms. McCusker's school in Queens, explains the reasoning this way: "The parish reluctantly dismissed Ms. McCusker because, as a nonmarried woman who was expecting a child, she could not adequately convey the faith to the children in her charge." As a religious institution, the school is legally allowed to discriminate in its employment practices on the basis of religion.
But the NYCLU charges that the school engaged in gender discrimination, not the religious kind. "Our view," says executive director Donna Lieberman, "is that the school only applies its religious doctrine regarding nonmarital sex to women." The McCusker case "is not about whether a school can impose its religious beliefs on its teachers." It's about whether a religious school is applying its doctrine "even-handedly." Sensibly, Ms. Lieberman notes that a woman can't sue for being denied a position as a priest.
But Anthony Picarello, a lawyer at the Becket Fund for Religious Liberty, believes it is not the business of courts to decide how and when its principles may be applied to employees. Mr. Picarello is defending Ursuline Academy, a Catholic school in Wilmington, against Ms. Curay-Cramer's claim of being wrongly fired. He believes that the hands-off principle applies in his case as well as Ms. McCusker's.
Ms. Curay-Cramer is arguing that she was discriminated against because of her views on abortion. Her lawyer, Thomas Neuberger, has suggested that such views, as well as her Planned Parenthood activities, are protected by provisions in the Civil Rights Act, particularly those ensuring equal treatment for women who are pregnant--and, apparently, those who support such treatment. This part of his argument feels quite strained.
But there is another part of the plaintiff's case that is less implausible. Mr. Neuberger claims that Ursuline is not entitled to the religious exemption from nondiscrimination statutes because it is not religious enough. He notes that the school is independent of the diocese; it hires non-Catholics; and it doesn't offer employment contracts with a "cardinal's clause." Such a clause, not uncommon in the workings of religious schools, would mandate that teachers avoid taking a public stance against the church's teachings.
Mr. Picarello, defending Ursuline Academy, believes that this argument cannot stand. "Ever since Mitchell v. Helms," he says, citing a 2000 case in which the Supreme Court upheld a program giving public dollars to religious schools, "the court has suggested that it doesn't want to make distinctions between super-religious and lukewarm religious." It shouldn't matter which doctrines Ursuline chooses to uphold. Theoretically, the school could fire someone for supporting the death penalty but keep someone who doesn't go to confession. "It can be done retail rather than wholesale," he says.
It is easy to see the slippery slope that he is worried about. Neither the NYCLU nor the Third Circuit judges should be in the business of telling the Catholic Church what is and is not part of Catholic teaching and how it should be applied. On the other hand, it is possible to imagine a slippery slope on the other side, with doctrine being used to mask nondoctrinal reasons for employment decisions. But there are ways to avoid some of these disputes.
Take the Queens school, St. Rose of Lima. It has a handbook that, according to Mr. DeRosa, the diocese spokesman, calls for a teacher "to accept gospel values and the Christian tradition." Why be vague about it? Why not call for a teacher to abstain from sex outside marriage--and abortion, for that matter? There are plenty of religious, and nonreligious, institutions that require employees to sign explicit codes of conduct. (Such a document might also help a Catholic school avoid being in the odd position of seeming to discourage women who do have extramarital sex from carrying their baby to term.)
Mr. Picarello says, in defense of the Wilmington school that Ms. Curay-Cramer is suing, that such contracts are "not necessary." He argues that Ursuline is on solid ground because "everyone knows the Catholic Church is against abortion." But everyone knows that the church is against contraception too. Teachers who publicly differ with this position or others could find that their jobs are in danger as well. If a school wants to practice its religion "retail," then let's find out what's for sale.
There are those who would lament that our litigious culture has brought us to the point where a Catholic school has to tell its teachers to avoid conduct that runs contrary to the church. Perhaps so, but for schools that value their religious liberty, a little transparency could go a long way.
Ms. Riley is the Journal's deputy Taste page editor.
