2006-10-27 / Editorial/Opinion

From the Editor's Desk

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


In last week's column I wrote about the growing movement on the part of both state and federal courts to broadly interpret the First Amendment to mean that those who work for religious institutions do not fall under the employment rules that apply to the rest of us.

There are two cases that I wrote about last week that make the point. In the first, a woman seeking to become a nun was fired for "not being called to our way of life," just weeks after being diagnosed with breast cancer. At that diagnosis, the Mother Superior reportedly told the doctor, "We will have to let her go. I don't think that we can take care of her."

She filed a case with the federal courts under the Americans With Disabilities Act. Her case was dismissed because, the court 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."

The second case, a more recent and more local one, may well just be starting on the road to federal court.

Parochial school teacher Michelle McCusker taught at the St. Rose of Lima School here in Rockaway until two weeks after she told her principal that she was both pregnant and unwed.

Although her principal stated that she was a good teacher, the school told her that she had to go because she violated the tenets of Christian morality. The diocese issued a statement that the teacher's status as both pregnant and unwed "makes her unable to convey the faith which is an essential element of her teaching duties."

The New York chapter of the American Civil Liberties Union took her case and the Equal Employment Opportunity Commission (EEOC) ruled last week that the church was guilty of "Pregnancy Discrimination" in violation of the Civil Rights Act and that the church had to pursue an accommodation with the teacher or face sanctions from the government.

I am sure that the EEOC ruling will be appealed by the church to the federal courts. Which brings us back to the ruling in the case of the fired perspective nun.

And, back to the two-page New York Times article of October 9, entitled, "Where Faith Abides, Courts Give Few Rights to Aggrieved Employees."

The Times article says that religious institutions are generally given exemptions by the court to rules controlling employees.

""Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the past 15 years," the article says. "Together they are expanding the ability of religious institutions - especially religious schools - to manage their own affairs with less interference from the government and their own employees."

The exemptions have long been given in cases of ministerial personnel - priests, rabbis, ministers, nuns, etc. Now, however, that exemption has moved on to cover all those who work for a religious institution, such as a lay parochial school teacher.

For example, the exemption has been used in cases involving a press secretary of a Roman Catholic diocese, a writer for the Christian Science Monitor, an administrator at a religious college, a chaplain at a religious school who claimed she was dismissed because she is a woman, and the overseer of a Kosher kitchen at a religious nursing home.

I understand that religious institutions deserve some protection not afforded to other institutions under the First Amendment, and that those who choose to become what the government calls ministerial employees have to be protected.

I draw the line, however, at lay people who work for religious institutions who are left behind by the law. I also find it hard to understand the hiring practices of the pastor of St. Rose of Lima Church, who would fire a lay teacher for being an unwed mother and then hire an organist who, he had every reason to know, was facing charges of child endangerment and statutory rape in another state.

Talk about a double standard. I have to wonder how many male employees of the parish were or are engaging in extramarital sex and who do not face being fired for their "immoral" act even should the parish know about it.

The question, of course, is where the government draws the line.

What can't one do in the name of religion?

Last week, I drew a hypothetical about a Jewish sect that went back to the pre-Biblical belief of sacrificing their firstborn males to guarantee good crops.

Some people told me that it was a ridiculous hypothetical and not worthy of discussion.

Of course, it was far out, but hardly impossible in a world of growing religious militancy all around us.

Of course, those people said, the government would never allow murder.

What would they allow? Where is the line, and who will draw it?

For example, using peyote is against the law, except to Native Americans, who claim that it is part of their religious beliefs.

Suppose a breakaway Protestant sect decides that crack cocaine should be part of its liturgy. Would the courts allow the use of the illegal drug under the rubric of the First Amendment?

Suppose one of the Hassidic Jewish sects decides that it is proper to beat (or even kill) children who disobey the commandments, as was once allowed in the early British colonies in the New World, would that be allowed by the courts? Think those things are way out? Think again.

The courts have already allowed Christian pharmacists to refuse to dispense birth control devices to people who have valid prescriptions, if those pharmacists do not believe in birth control. What is to stop a pharmacist from refusing to dispense a medication that is designed to save a person's life if they believe that it is God's will that the person die?

Where is the line and who draws it?

Just last weekend, New York State's highest court ruled that the Roman Catholic Church and other religious institutions must abide by a state law that requires most employee health insurance to cover the cost of contraception. That ruling has already been challenged on religious grounds by several church groups because, they say, the law requires them to violate the dictates of their faith.

So sets the question. Are we a nation of faith or a nation of laws?

I sure hope the answer comes out that we are a nation that passes laws that protect the individual and that those laws are followed no matter who violates them.

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