2006-10-20 / Editorial/Opinion

From the Editor's Desk

Breaking The Law In The Name Of Religion, Part I
Commentary By Howard Schwach


There is a law in this nation called The Civil Rights Act of 1962 that guarantees certain rights for all Americans. An amendment to that act banned "Pregnancy Discrimination" in the United States.

For my purposes, the relevant portion of that amendment reads, "an employer cannot refuse [to employ or retain] a pregnant woman because of her pregnancy, because of a pregnancy related condition or because of the prejudices of co-workers, clients or customers."

The Equal Employment Opportunity Commission EEOC), the federal agency tasked with seeing that the law is obeyed, ruled on October 11 that St. Rose of Lima Church on Beach 84 Street in Rockaway, violated that federal law by firing a woman who was both pregnant and single.

Michelle McCusker received a glowing evaluation from the school principal. That lasted until a week after McCusker told her boss that she was pregnant.

On October 11, 2005, McCusker got a termination letter from Principal Theresa Anderson.

The letter said, "In no way am I judging you."

Anderson then writes, "You have read the Teacher Personnel Handbook and understand that teachers agree to teach and act according to the precepts and doctrines of the Roman Catholic Church. Each teacher must demonstrate an acceptance of Gospel values and the Christian tradition not simply as a concept to be taught, but as a reality to be lived. A Teacher cannot violate the tenets of Catholic morality."

At the time, the Brooklyn Diocese issued a statement that read, in part, "McCusler's status [as both pregnant and unwed] makes her unable to convey the Faith which is an essential element of her teaching duties."

In no time at all, the New York City chapter of the American Civil Liberties Union (NYACLU) took the teacher's case.

In November, they filed a complaint with the EEOC under the provisions of the Pregnancy Discrimination Act.

The ACLU made two arguments: that McCusker's termination was unlawful under the provisions of the law; and, that McCusker was fired for having sex out of wedlock, but that no male staff member had ever been fired under similar circumstances.

"St. Rose of Lima fired our client because she had ostensibly engaged in non-marital sex, but it does not enforce this policy against male employees," Donna Lieberman, the executive director of the NYCLU said in a press statement. "Applying different policies to men and women is a double standard and constitutes sex discrimination and, in this case, pregnancy discrimination."

On October 11, the EEOC issued notice that St. Rose of Lima was engaging in unlawful pregnancy discrimination by firing McCusker.

The fired teacher was ecstatic about the ruling and issued a statement through the NYCLU.

"This experience was devastating, and I'm very happy that the EEOC has provided us with an opportunity to resolve it," she said. "This was my first teaching job, and it is gratifying that the EEOC agrees it was discrimination to fire me."

The Church, however, is not impressed with the government's decision.

Frank DeRosa, a long-time spokesperson for the Brooklyn Diocese and all of its parishes, issued a statement to The Wave.

It read, "St. Rose of Lima Parish disagrees with the EEOC determination because it impinges on its religious beliefs. The parish will consider exploring the possibility of conciliation with Ms. McCusker as requested by the EEOC."

You can bet the sum of money that the church has had to pay out to the victims of pedophile priests, to the amount of money earned by the parish organist who was indicted for sexual relations with an underage girl, that the church will fight its right to break secular laws, all the way to the Supreme Court.

And if we read this conservative court correctly, the church might well win its case.

There certainly is precedent for the court broadly interpreting the "Establishment Clause" of the Constitution (the one that Neocons and the Religious Right love to complain about) to allow the church wide latitude when secular laws are concerned.

In its October 9 edition, The New York Times ran an unusual two-page story that began above the fold on the front page, the most prestigious news position in the paper.

The headline for the article was "Where Faith Abides, Employees Have Few Rights."

The Times story focuses on a middle-age novice training to become a nun in Ohio. She claimed that she had been dismissed by her order because she contracted breast cancer.

Her supervisor at the Toledo convent told the doctor, "We will have to let her go. I don't think we can care for her."

She was later dismissed because, the supervisor said, "she was not called to our way of life."

She sued under the protection of the Americans With Disabilities Act. Had she worked for any organization but the church, she would have prevailed. As it was, her case was dismissed because, the judge said, her dismissal was an "ecclesiastical decision beyond the reach of the court," due to the "First Amendment, which requires religious institutions to be free from governmental interference in matters of governance and administration."

Sound like that decision might have some resonance with the St. Rose of Lima case? You can bet your bippy, as a famous television star once said.

The New York Times article made the problem clear.

"As a rule, state and federal judges will handle any lawsuit that is filed in the right place and at the appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith.

That neatly sets up the question. Can religious institutions disobey secular laws with impunity and without any oversight whatsoever?

Let's take the question to the extreme. Should a Jewish sect decide to reestablish the custom of giving the first born son in each family to Malik, the fire God in order to placate him and provide a good crop, would the government call it murder and interfere? Would the priests be arrested for murder? I would hope so, but this Supreme Court might just rule that the action of the priests was protected by the First Amendment.

Something to think about, isn't it.

Look for more on this subject from the two-page New York Times story and from readers who responded to that major story in this space in next week's Wave.

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