McCusker,
26, is suing the Diocese of Brooklyn and St. Rose of Lima school
in Queens for dismissing her as a pre-kindergarten teacher last
fall. That was two days after McCusker told her principal that
she was three months pregnant and had no intention of marrying
the father.
The school
praised her work and expressed sympathy, but said she had to leave
because an unmarried pregnant woman is an inappropriate role model
and authority figure in a Catholic school. Besides, the teachers'
personnel handbook says "a teacher is required to convey
the teachings of the Catholic faith by his or her words and actions,
demonstrating an acceptance of Gospel values and the Christian
tradition." McCusker signed a contract accepting that rule.
Along with
her supporters, McCusker thinks the church should be a little
more understanding and pleased that she didn't abort. Secularists,
and many religious people, take an instrumentalist view: So long
as an employee plays by the rules at work, his or her private
life doesn't matter.
The NYCLU
complaint goes much further. It says the church and the school
violated a federal law banning discrimination against pregnant
women. To avoid gender discrimination, the NYCLU says, the school
should have to show it is willing to move against unmarried male
teachers who impregnate their lovers. This is an odd argument
for a civil liberties union to make -- that to justify firing
a pregnant and single employee, a school should make some effort
to monitor the sex lives of its male teachers.
The civil
liberties union made a mistake in taking this case, because it
is now in the position of arguing that an anti-discrimination
law overrides the First Amendment right of free exercise of religion.
Among other things, free exercise means that a church has an absolute
right to designate those who speak in its name. If it can't do
this, then its religious message is corrupted and the constitutional
rights of its members violated.
This ministerial
function clearly covers priests, nuns and schoolteachers. In this
case, the church didn't fire McCusker because she is a sinner.
It believes we are all sinners. It fired her because a visibly
pregnant and unmarried authority figure dealing with young children
is conveying a message -- this is all right -- that the church
does not want to send. So McCusker has to lose. Neither the state
nor the courts can control the religious message.
In 1987,
the Supreme Court, in a unanimous decision, went beyond the protection
of the ministerial function and ruled that nonprofit religious
organizations may legally discriminate on religious grounds in
hiring, even if the job involved is a secular one (Presiding
Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos).
I'm not sure a Baptist church should be allowed to fire a janitor
for converting to Methodism, but that's the law.
There's a
broader problem: Many institutions are now using anti-bias laws
and regulations to trample the ministerial function. More than
a dozen universities have punished their campus evangelical groups,
either cutting off funds or withdrawing recognition, because these
groups do not allow declared homosexuals to become officers. The
universities (or their student tribunals) do this because their
regulations say that campus groups must allow all students to
join and run for office. The evangelicals usually say that gay
membership is fine, but a gay officer is not acceptable because
the group must be able to control its core religious message --
in this case that homosexual sex is forbidden by the Bible.
I first noticed
this problem at Tufts in 2000 when a bisexual woman in the campus
Christian Fellowship, who had said she accepted church teaching
on sex, changed her mind and announced that she thought homosexuality
is compatible with Scripture. She wanted a leadership position.
The fellowship said no and was then "de-recognized"
by student authorities. University officials let it happen, saying
it was not the administration's concern.
Some campuses
elevate anti-discrimination rules over religious freedom in large
part because gays are very powerful on campus and Christians are
not. In effect, evangelicals are being punished for failing to
have the views of the dominant campus culture. Someone should
explain to the campuses (and to McCusker's supporters) what religious
freedom means.
