Joseph C. Kaplan
Joseph C. Kaplan

A Church-State Fairness Doctrine

An interesting church-state case, Crisitello v. St. Teresa School, has climbed the ladder all the way to the New Jersey Supreme Court. The case is important because the court’s eventual decision might have a significant impact on employer-employee relations in all private religious schools, including Jewish ones.

The facts are relatively straightforward. The plaintiff, Victoria Crisitello, a lay teacher for toddlers at St. Teresa School, a Roman Catholic school, was asked by her principal to take on additional art teaching responsibilities. Crisitello, who was not married, said she was pregnant and if she were to be given additional work, she would like a raise. The principal said no to the raise, and the matter was dropped.

Shortly thereafter, Crisitello was fired for engaging in pre-marital sex. (Both parties assumed in their legal papers, and the courts accepted that assumption for purposes of their decisions, that being unmarried and pregnant meant Crisitello engaged in pre-marital sex. However, as one court dryly noted in a footnote, “due to advances in modern medicine and related technology, that premise is not necessarily true.”)

In any event, the stated basis for the firing was that engaging in pre-marital sex violated the school’s ethics code, which, while not specifically referencing pre-marital sex or stating that it’s a basis for automatic dismissal, prohibits “immoral conduct . . . that is contrary to the discipline and teachings of the Catholic Church.” The code also specifically applies not only to clergy but also to “lay faithful,” including “paid personnel whether employed in areas of ministry or other kinds of services.” In addition, the faculty handbook’s “Christian Witness” section requires teachers to practice a “value-centered approach to living and learning in their private and professional lives.”

If I were still practicing law and drafting a legal memorandum in preparation for handling this appeal, I’d continue for at least twenty pages discussing and analyzing in depth the specific procedural stance of the case, underlying statutory and case law, reasoning of the various decisions, and arguments in the school’s initial petition to the Supreme Court. Lucky for me — and you — I’m retired, so I don’t have to do all that. Rather, for purposes of this column and the point I hope to make, I just need to highlight a few of the factual and legal underpinnings of the case, condensing those twenty pages into about 550 words that get to the heart of the matter.

In the first round, the lower court granted the school’s motion for summary judgment, dismissing the case without a trial on the grounds that under New Jersey’s Law Against Discrimination (LAD), there was “a broad exception for religious institutions utilizing religious criteria as part of their employment criteria.” Thus, Crisitello’s unwed pregnancy evidenced her violation of the code’s religious criteria. She was therefore unqualified to hold her position, and therefore couldn’t state a prima facie case for discrimination.

The Appellate Division reversed for a number of reasons relating to intricate First Amendment legal analyses, and the case was remanded to the lower court for further proceedings. After they were concluded, the school again moved for, and the court granted, summary judgment. Another appeal and reversal followed.

A main issue on the second appeal, and the one that received the most attention in various news articles, including a widely circulated one in The New York Times, related to the issue of unlawful discrimination against female employees based on pregnancy. The school claimed that it fired Crisitello because of her violation of Catholic doctrine, not pregnancy. Crisitello claimed this was pretextual — that is, it wasn’t the true reason for its discriminatory act — and therefore the religious exception to the LAD didn’t apply.

In analyzing these conflicting claims, the court considered the undisputed facts that (a) only women get pregnant, (b) the school never asked any teachers if they engaged in premarital sex, (c) the only way the school knows that a teacher engages in premarital sex is if the teacher is a pregnant unmarried woman, and (d) the ethics code and handbook don’t mention premarital sex or that it results in automatic dismissal. Based on these facts, the court held that since the school fired only unmarried pregnant women for premarital sex, Crisitello met her burden of proving that the school’s religion-based claim was only a pretext for pregnancy discrimination.

There’s one additional critical issue I haven’t mentioned yet. As I discussed a year ago (“Or Prohibiting the Free Exercise Thereof”), there’s a “ministerial exemption” rule in discrimination law protecting, under the First Amendment, the sole right of religious institutions to exercise, without governmental oversight, their ecclesiastical function of selecting and controlling ministers who personify the institution’s beliefs. Thus, anti-discrimination laws don’t apply to such relationships. Last year, in Guadalupe School v. Morrisey-Berru, the Supreme Court expanded that rule to include lay teachers who were involved in students’ secular and religious education.

In Crisitello, the school argued that plaintiff was a “minister” under Guadalupe’s reasoning, and in the second appellate decision the court held she was not, because, unlike the plaintiff in Guadalupe, Crisitello’s core duties as a teacher’s aide/art teacher didn’t include any religious duties. Moreover, the fact that all faculty are supposed to serve as Christian witnesses in their professional and private lives doesn’t make their terms of employment a matter of ecclesiastical concern. Thus, the ministerial exemption did not apply.

In its petition for certification to the New Jersey Supreme Court, the school highlighted the ministerial exemption issue, and essentially argued that under the school’s ethics code and handbook all of its teachers fall within the ministerial exemption. If that argument eventually carries the day, Jewish day schools and yeshivot might be able to claim that their teachers also are covered by this exemption, thus barring them from having courts adjudicate any discrimination claims they may have.

And that’s why I find this case problematic. It’s what I called in my earlier column a two-story case — that is, one where both sides have compelling stories to tell. St. Teresa’s story is one of a religious institution, protected by the First Amendment, struggling to preserve its sacred religious traditions and educational mission in an increasingly secular society. Crisitello’s story is one of a young person being fired from her job in a situation where she (and a court) believe that others would not have been fired, with no recourse to an impartial forum to adjudicate her claim. And there’s yet a third story; one of the need to keep the wall between Church and State strong by not having courts involved in the nitty gritty of parsing and deciding ostensible religious doctrine in employment disputes.

So how do we preserve and protect all these stories? And how do we ensure that our day schools and yeshivot continue to take seriously their religious mission and commitment to Torah law and Torah values, which have a great deal to say about how employees are to be treated? Unfortunately, there are no perfect answers; all too often such disputes are zero-sum games in which one side wins and the other loses. Nonetheless, there is a way, I think, to inject a strong dose of fairness into this situation that could preserve our nation’s and our religion’s strong ethos of both religious freedom and opposition to discrimination.

Hence, the following proposal. Even if the ministerial exemption is not expanded, but especially if it is, our schools should provide the following to all employees: a clear, written statement upon hiring of what’s expected of them, including religious obligations, and how and where employment disputes, including those related to these obligations, will be adjudicated. Such a forum can, of course, be a bet din as long as it is a fair and unbiased one. Sadly, that’s not the case with too many of our battei din at present — the well-known and well-respected Beth Din of America being a notable exception. This practical problem, therefore, needs to be addressed for my suggestion to work equitably.

Many additional details also must be fleshed out before this skeleton proposal can be realized. But what’s critical is its core principle of having the American concept of fairness and due process for all work hand-in-hand with the thoughtful Jewish dictum (Pirkei Avot 1:18) that the world stands on three things: justice, truth, and peace. It would be a caring melding of two precious traditions.

About the Author
Joseph C. Kaplan, a regular columnist for the Jewish Standard, is a long-time resident of Teaneck. His work has also appeared in various publications including Sh’ma magazine, The New York Jewish Week, The Baltimore Jewish Times, and, as letters to the editor, The New York Times.
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