A Brief Digression: Follow-Up On Catholic School Teachers and ART

There’s a cluster of cases in Ohio involving Catholic school teachers fired for being pregnant.   I’ve written about these in the past.   Each case is different (and indeed one isn’t about ART, really).  Now one of these cases–I think the oldest–is now being tried before a jury and so it is time for an update.  

The broad issue here is that while the law generally forbids discrimination based on pregnancy and on sex (among other things), the Catholic hierarchy asserts a religious freedom exemption from anti-discrimination laws–at least as they apply to teachers in Catholic Schools.   The current case illustrates the point.  

It’s quite true that we do often protect religious freedom even when that freedom leads to what would otherwise be unlawful discrimination.   To take the obvious, women are disqualified from many jobs in the Church hierarchy by virtue of their sex.  But the critical (and unresolved) question is how far does the freedom to discriminate extend?   The particular question raised by these cases is whether it extends to teachers–teachers who are teaching distinctly non-doctrinal classes.  (The teacher in the current case–Christa Dias–taught computer science.)   

Now when you consider the number of people who do not comply with Catholic doctrine (including the vast majority of most practicing Catholics when you come to an issue like birth control) it seems to me that if this position–that you can fire anyone who doesn’t comply with Catholic doctrine–if taken seriously and uniformly enforced-would rather diminish the hiring pool.   Therefore that “if uniformly enforced” part is important.   And this brings  me to the second major issue in these cases:  Can the Archdiocese discriminate in selecting which teachers in violation of Catholic doctrine are fired?   In other words, does it have to fire all teachers who violate doctrine (or perhaps violate particular doctrines?), or can it fire some but not others?   And if the latter, can it fire (say for example) women who violate doctrine but not men?    I think one could plausibly conclude that the Church has the right to fire for violations of Catholic doctrine but that it must do so uniformly.      

And so to the current case, which I think is the oldest, and is now being tried before a jury.   The plaintiff–Christa Dias–testified yesterday.   Dias was a computer science teacher at a Catholic school.   She was (and I think is) single, she is a lesbian and she got pregnant via assisted insemination (AI).   Though there are many potential violations of Catholic doctrine here, she was apparently fired for the last reason–for using AI.    (For information on Catholic doctrine about AI you can see the box in this article, which is otherwise coverage of the trial.)  

As I said above, this case illustrates the larger debate and you can see the two questions I discussed above:  First, was Dias in the kind of job where you can be treated discriminatorily because of our commitment to religious freedom?  This is a question of law that ought to be one for the judge and so probably isn’t discussed much at trial.   But second, and this would be the trial issue, did the diocese enforce the “abide by doctrine” rule across the board or did it enforce it in a discriminatory manner?    

According to the press account, Dias produced a witness–Jack Frazine, who is a married man–who used to work for the diocese.  He told them that he and his wife were using AI.   He wasn’t fired or in any other way disciplined.   Not only that, he worked as a youth minister–a position where I’d think there is surely a greater interest in enforcing doctrinal compliance than there is for a computer science teacher.  So why is Dias treated differently from Frazine and is that reason permissible?   

There’s an obvious differences between Frazine and Dias.   The first is sex.   Frazine is male and Dias is female and more particularly, Dias was pregnant as a result of AI while Frazine wasn’t (and would never be).  Dias’ pregnant condition is an obvious indicator that she did something while Frazine carries no similar marker.   Does this justify firing one and not the other or is that unlawful pregnancy/sex discrimination?  

I’m not sure what exactly the jury’s going to be asked to decide here but I’ll keep an eye on it.  And if the case doesn’t settle, I’d expect to see an appeal raising some of these important questions.  



30 responses to “A Brief Digression: Follow-Up On Catholic School Teachers and ART

  1. The other difference between the two is that one was married and one was not. Regardless of whether she was teaching religion, she was teaching children at a religious school, and being single and pregnant – regardless of how she became that way – is a bad example to the children. No matter the subject, they would see a single pregnant teacher when in class. Parents pay a lot of money to send them to these private schools, mostly because public schools no longer have or teach Christian values, they have a right to demand their children are in an environment that does not conflict with those values. Additionally, she signed a contract stating she would not violate certain things, and her pregnancy was one of those things. She did not have to work there, she could have taught in the public school system where they fully embrace and welcome such things.

    • True enough–one was married and one was not. A pregnant unmarried woman almost necessarily has violated Church doctrine–either by having sex or using ART. I’m actually surprised this isn’t the ground on which the defense is resting, but they seem to assert it is the use of ART (rather than the unmarried state) that matters. I suppose this could be because the students don’t know which teachers are married and which are not?

      There’s two interesting points that you raise, I think. First, if you went with the unmarried distinction and the setting and example argument you offer, you justify treating men and women differently. Where an unmarried man and woman engage in sex and the woman gets pregnant you cannot tell anything by looking at him while you can tell by looking at her. Is that pregnancy discrimination? Is it reasonable? Those are tough questions. They crop up other places–there’s a post somewhere about a school that banned pregnant teens (of course, only teen girls) from attending school while the boys who were responsible for the pregnancies weren’t banned. Same issue–right–it’s what obvious.

      Second, the Church contracts might have said “you cannot do anything that makes it apparent that you violate church doctrine” and then I think they’d be right on this argument. But that’s not what the contracts require, apparently, and that’s not the church’s position. It requires actual adherence to doctrine–not just the absence of obvious non-compliance. Thus the man who engages in non-marital sex is just as much in violation of doctrine (and the contract) as is the pregnant woman and should be treated similarly. I don’t know if this means the church has to ask about what you do, but it does seem like if someone comes and tells you (as the man did here) then it ought to have to respond in the same way.

      I can understand why the Church would prefer a rule that you have to abide by doctrine rather than a rule that says that you must appear to do so, or at least not obviously fail to do so. The former seems to me a more principled stance though the latter is more practical. The practical one clearly will also have (in effect) a bias against women.

      • My opinion is that if you are violating, you should be terminated, male or female, period. i.e., if an unmarried man gets a woman pregnant, he should be fired. Of course that isn’t what happens. For example, this woman is a lesbian, and I’m sure they knew it, but figured as long as she kept a “low profile” they would allow her to keep working. There was recently a case where a lesbian had been teaching at a Catholic school for a long time, but her partner died and in the obituary she was listed as the partner. They fired her. She said they knew she was a lesbian, but I’m sure as long as she kept the “low profile” they looked the other way, but once the announcement came out in the paper, then they had to do something about it.

        • If it were not for gays and lesbians there would be not priests and no nuns. The whole house of cards would fall down. You can’t go firing lesbian nuns they’d have to close the whole convent. It must have started as a place for people to go to still be respected and loved by their families without having their lifestyle called into question

          • Perhaps I should have clarified my terminology. Insert “practicing lesbian” where “lesbian” was. A practicing lesbian h as no business being a nun. First of all you are supposed to be celibate, secondly you are supposed to follow church doctrine and you would be violating doctrine regarding both chastity and homosexuality.

            • Right, but all my teachers in catholic school were lesbians. I’m a big girl now and in retrospect I can tell. I have no idea whether they were practicing or not, its none of my business and they certainly never behaved inappropriately toward children they were teachers and their job was teaching. They were wonderful teachers and were sweet, inspiring people that were good and kind to children. My heart is huge for Sisters Margaret and Elizabeth. I really hope they had an active normal life outside of school in a way that made them feel safe from the way the world was back then in those days. Had they been born 30 years later I have no doubt in my mind they’d be raising one another’s kids in a house in Glen Park or Noe Valley attending PTA meetings and soccor practice teaching at a university maybe or being scientists or maybe just teaching 2nd graders all nobel professions of equal importance.

        • What they are actually doing reminds me of “don’t ask, don’t tell”–the now-abandoned policy that allowed lesbians and gay men to serve in the military so long as they didn’t tell anyone (by word or by deed) that the were lesbian or gay. Except this is, in a way, even worse–the male witness did tell them and he didn’t get fired. It’s a policy that encourages hypocrisy and deception and also grants broad discretion to the employer to only fire those people who have somehow made things too public. So, for instance, they might have known she was a lesbian and acted in violation of church doctrine, but they didn’t fire her for that. But I bet they would assert that they could have had they wanted to. Since very few people really comply with all church teachings, it gives them broad discretion to fire who they want to when they want to without regard to legal constraints.

  2. I would be very disappointed if Ms Dias loses this case, and in the event that she does, I think it would raise real questions of whether the schools involved should receive public money.

    Some people feel their religious beliefs are against inter-racial marriage, and they would see someone who marries someone of a different race as being a “bad example” to children, but I don’t think a school would be able to fire someone for it.

    • I don’t know that these schools do receive public money, but I take your point. And I think raising the issue of interracial relationships is great. Right now in the US many churches claim a right (grounded in religious freedom) to discriminate against same sex couples. Not just in church hiring/firing but in whatever businesses the church members happen to run.

      So for instance, in my home state (WA) there’s a pending case about a florist who won’t provide flowers for same-sex weddings though she is happy to do so for different sex couples. Same sex marriage is recognized here and there is an anti-discrimination law that bars discrimination against lesbians and gay men. The florist asserts that she has a right–grounded in religious freedom–to discriminate and lots of people take the argument seriously. But I doubt you’d see many of the same people take the argument seriously if she claimed the right to refuse to provide flowers for an interracial couple.

      • #1 – comparing race and sexual orientation is like comparing apples and steak.
        #2 – I don’t know of a single religion where interracial marriage violates doctrine, so it would be hard to justify refusing to provide flowers based on that.
        #3 – I hope and pray that a) the florist takes this all the way to the supreme court to defend her 1st amendment right “the freedom to practice thereof”; and b) gays and gay supporters realize that it is exactly this type of thing that makes some people not want to support same sex marriage.

        Ms. Arias should lose this case. She violated her terms of employment, if she didn’t like them she should have went and worked somewhere else where the terms of employment allowed her to.

        • I’m not sure why you say #1. They are both unlawful bases for discrimination under the laws of a number of states (but by no means all states). If you say you have a right to discriminate in violation of law in one case, why would you not have the same right in the other? You may think that the law should treat them differently–which is a different question. But in some states it is just as illegal to discriminate based on sexual orientation as it is on race and vice versa. It’s these states where the issue arises.

          There certainly are still religions that are opposed to race-mixing. The people who run Bob Jones University didn’t until recently. There are also religions founded on white supremacy, though I’m not going to pretend they are major ones. Still, their adherents could invoke religious belief as protections for religious freedom are not limited to major religions. Perhaps equally important, in the 1960s it’s quite clear that opposition to interracial marriage was grounded in religion–and here major religions–including, I think, the Southern Baptists. While everyone agreed that their ministers didn’t have to conduct interracial marriages I don’t think we would have allowed individual adherents engaged in private enterprises to discriminate against mixed-race couples when the general law said they weren’t allowed to do that.

          To go back to the case at hand, I think the question might come down to whether the jury thinks they can treat men who break the rules (and let them know it) differently from women who break the rules (and let them know it.) I understand your argument about keeping up appearances and it does have force, but I don’t think this this is the defense the church has offered. It is up to the defendant to figure out what defense it wishes to offer.

          • No no Julie the case needs to come down to whether or not this woman was an employee with taxes withheld or whether or not she was an independent contractor. If she was an employee pulling a check every two weeks with taxes withheld they have to – they must, comply with federal and state employment law in all areas including things like not discriminating on her because of her behavior outside school does not jive with their religion. It does not matter what she signed to waive her rights – she cannot waive her rights and the court better not enforce a contract where she agreed to waive them.

            She may have really needed the job and thought at the time she could comply with those requirements and then later on found herself unable to comply with the requirements not understanding that it was out of line for them to have her sign something like that as an employer. If they had entered into a contract with her where they were her client and she invoiced them and they had some termination clause then it would be a different matter.

            They need not get into how they treat men in the same situation. They could bring it up for theatrical effect but it is not necessary. It might be nice to punctuate their point by showing how they clearly operate an environment that hostile to females in addition to just not following employment law.

            • I think everyone agrees that she was an employee. (And I don’t know a thing about independent contractors.)

              Here’s what I think the case is about. The defendant (here the archdiocese) asserts that it is entitled to discriminate in employment, despite statutes to the contrary, in the name of religious freedom because it can require compliance with church doctrine. The plaintiff asserts that there is no such right in the case of this sort of employment and further claims that even if there is such a right to require compliance, it doesn’t give the defendant the right to demand compliance from female employees but not male ones.

        • grandma, the thing you might not be grasping is the difference between employing a person and contracting them. If you are an employer you have to follow certain federal and state rules for treating your employee’s fairly. Employers may not pay their employee’s monthly they must pay them at least twice a month and they have to pay them at a particular schedule. Payment of their employees is not dependent upon payment from clients. Also they must withhold taxes from employee’s pay checks and offer them sick leave and holiday pay and vacation and a lunch break and overtime if they are hourly and not salaried. They must also provide employees with a work environment that is not hostile and is non discriminitory based on things like race, gender, religion, physical disability or sexual orientation. These are things that all employers in this country must comply with and because they are required to comply this country has grown strong and powerful and people thrive and advance and equal opportunity laws and OSHA and unions have quelled the progression of prejudice in this country and that is a beautiful thing.

          If they want to have the latitude to let teachers go based on sexual orientation or based on non-compliance with the tennants of their religion they would have been wise to retain teachers on a contract basis where the teacher would invoice them monthly and they would take no taxes out. They did not elect to retain this particular teacher on a contract basis, they chose to employ her and therefore must comply with Federal and State employment laws even though those laws may not jive with their religion.

          Unless she breaks the law outside of work her personal life is none of their business so long as she performs her job. The laws they are mad at that protect her protect the church as well. It’s ironic that they cannot see that their freedom to exist as an institution and practice their religion is a very fragile thing and it is only because we have freedom and equality for everyone that no one group has turned the tables taken the upper hand and ended that right for those that are not as strong those with not as many followers. The catholic church is very powerful and has lots of money to hire lawyers and they could certainly set up contract situations where they could avoid these things and truly contract with people who were up for that sort of restriction on their personal behavior.

          • M, the thing you might not be grasping is the first amendment of the Constitution of the United States of America which states that we have the “Freedom to practice thereof”. I won’t get into what constitutes being an ass, or being pissy, or whether I feel it is humanly right or wrong. The bottom line is that the Constitution grants us certain rights, period. And sexual orientation is not immutable, it is not a behavior/lifestyle that cannot be changed, and it is not in the same class as race or gender. A black person cannot wake up in the morning and decide they are no longer going to live as a black person. A man cannot wake up in the morning and decided he is going to become a woman (even though sex changes are possible, genetically you are always the sex you were born). A homosexual can wake up in the morning and decide he/she is no longer going to have sex with people of the same gender. Again, I’m not saying they SHOULD do that. That is why sexual orientation is not covered by the Civil Rights Act. Religious freedoms are granted to us by the Constitution. It says clearly in the bible that homosexuality is a sin, it says NOWHERE in the bible that being black, or marrying someone of a different race is a sin. Whether someone is bigoted/racist and wants to believe that, doesn’t matter, they can’t support it. They can’t pull out their bible and show where it says it’s a sin. So, if a florist believes that homosexuality is a sin and chooses not to provide flowers to someone who, in her belief, is doing something that is abomination to the God she believes in, how is it right to sue her? Why not just get flowers somewhere else? The Constitution doesn’t give ANYONE, the right to marry, but it does give us the “freedom to worship thereof”. How can anyone think this is right? Also, if you work at a Catholic School where parents are paying a good sum of money for their children to be not exposed to the liberal indoctrination of the public school system, why is it not alright for that school to expect the teachers to make sure they do not subject the children to anything that goes against the doctrine, values and principles those parents are paying to be taught? You are weighing the rights of one person against the rights of thousands of others. And then again, we have the Constitution issue.

            Amendment I

            Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

            Congress shall make no law prohibiting the free exercise thereof. It all boils down to that.

            • Ah I am weighing the rights of one person against the many…you said a mouthful there and I’m so glad you did. Dr. Craig Sweet once wrote that when balancing the needs of donors offspring and consumers we should strive to do what is fairest for the largest amount of people.

              It is my understanding that our government set up is based on what they call majority rule / minority rights. That is that the majority can win the vote on something so long as it does not discriminate against people in the minority.

              While you’re right that a person cannot change the color of their skin and someone can in theory change their outward sexual behavior, its true – neither is relevant to whether or not someone can say teach arithmetic or service a car. If a person has the relevant qualifications for teaching school and the relevant experience such that they would be hired in the first place sight unseen say blackness or gayness unknown – their gayness or blackness is not germain to the work they were hired to do and it does not directly effect the people they interact with. Why does it matter who a person sleeps with when they are not at work if they are not breaking any laws when they do it? How exactly does their private behavior impact a child’s ability to learn?

              The right to practice ones religion does not give a person the right to discriminate against people that they employ or discriminate against customers in commerce or members in private clubs and organizations.

            • and grandma I am rather enjoying this debate and I thank you for going point for point with me. Much respect for that.

            • Is fatness covered?

            • grandma what do you think about the fact that they could have retained teachers on a contract basis so that they would be working for themselves with the curch as their client and would therefore not be subject to the high strict standards of employment law where the bar is set high to protect all workers. There is a vehicle for retaining teachers and terminating business relationships with them that would afford the church the luxury of simply terminating the contract and paying an early penalty or something.

            • I disagree with a lot of what you’ve written, but I’ll focus on this:

              “It says clearly in the bible that homosexuality is a sin, it says NOWHERE in the bible that being black, or marrying someone of a different race is a sin.”

              I think the Bible is far from clear about homosexuality. People who take Leviticus literally also have to be equally (according to Leviticus 26:14-16) opposed to eating shellfish, tattoos, wearing clothes of two fabrics, and bunch of other things that most Christians don’t worry about.

              Here are some of the Bible passages that can be and were used against interracial marriage:

              Similarly, there are lots of passages in the Bible that can be used to defend slavery or killing followers of other religions or non-believers.

            • There are big issues raised by a lot of the points you make, many of which are way beyond the scope of this little blog. I’m just going to note a few. But really, they are beyond the scope here. Important and interesting, but beyond the scope.

              There are debates over whether or not sexual orientation is immutable. It’s simply not clear.

              But there are also debates over whether this is the critical question–whether immutability is the right test. Suppose a pill were discovered that made it possible for people change race. Would that mean that race discrimination suddenly became permissible? Because we could tell people they just ought to change their race? Perhaps the way to understand the rule is to say that there are aspects of core identity you are not required to change in order to access basic services?

              There are also big free exercise of religion questions–ones that are complicated and have been the focus of long scholarly careers. A couple of things are clear–you can believe what you want, for instance. The core functions of religious organizations (choosing clergy say) are beyond government regulation–that’s another agreed thing.

              What’s in dispute is the scope. So can Catholic Charities (a social service agency run by the Church but not the Church itself) discriminate in who it provides services to? Does it matter whether it gets state contracts? And can Catholic schools require all employees to abide by church doctrines–including say those who paint the buildings or take out the trash? There’s just a host of questions here.

              Then there is the question of whether individuals engaged in business (as opposed to the church itself) who are adherents to a religion have the right to act in violation of state law in order to live out their religious beliefs. That’s the inn-keeper who might refuse service to an same-sex or an interracial couple. I think this is generally understood as a step further out from allowing the church rights to discriminate.

              Then there’s questions about whether all forms of state-prohibited discrimination must be treated the same. Most relevant here–in a state that bars discrimination based on race and sexual orientation, is there a legal argument that one prohibition (no discrimination based on sexual orientation) can be overridden based on religious belief but the other (no discrimination based on race) cannot be?

        • Apples and steak are both food and so both must meet certain federal safety guidelines to be safe for human consumption. For instance neither is appetizing covered with mold and teaming with maggots. On a similar note being fired because you are a lesbian is just as unfair as being fired for being Mexican.

          Now most employers have clever ways around the law and never are stupid enough to admit on paper that religion or race or sexual orientation is the reason they are being let go. Most will say the termination is for some other reason or will just reduce the employee’s hours so much they they are forced to quit. These mental giants actually had her sign away her equal rights and said on paper that her non catholic behavior is the reason she got fired. They clearly don’t even know that they are being jack asses.

  3. While it doesn’t really relate to the case at hand, it made me think of something else that seems a bit ironic to me. The Catholic Church is VERY strongly against abortion. If an unmarried teacher at a Catholic school has sex but never appears pregnant, she probably won’t be fired, since I don’t think they go around asking if the employees are having sex. If such a woman has an unplanned pregnancy and feels she could not support the child if she were to lose her job, could this policy actually encourage abortion?

    • I’ve actually wondered about this myself. Ironic?

      • Just a bit huh? I was thinking wouldn’t they want to encourage her to keep the child that she was pregnant with? I sometimes worry that people will mistake me for a pro-lifer because I would encourage people to keep their children rather than give them up for adoption. But I’d also encourage people to abort rather than give a child up for adoption because well then there never is a human being born and impacted by the parent’s decision. I struggle a teeny bit with that now but I try not to think about it.

  4. My parent's donor is my father

    Don’t just target the Catholics. It’s not just the Catholics who see problems involved with ART (and discourage the practice).
    “Moreover, there’s a prohibition in Jewish law against suppressing parental identity, for fear that people may marry family members and unwittingly commit incest. Yet women who donate eggs often do so anonymously. In theory, such a procedure would be prohibited under Jewish law, just as closed adoptions are. Rabbi Bleich finds the issues so complicated, he discourages in vitro fertilization altogether.”
    There are atheists who are against the practice, for humanism reasons, as well.

    • unfortunately i believe this rabbi is an exception in judaism and that,most rabbis are accepting of gamete donation. they do insist that a non jewish donor be,ised however to minimize the possibility of incest and in cwtain,casea teqire that the child have a formal conversion

      • Well at least someone is thinking about incest with the donor. Good for them. It’s so crazy that everyone over looks that

    • godless uneducated X-stripper Moms against lying false impersonation, Stockholm syndrome, slavery, baby buying, dillusion, fraud and lazy record keeping.

      What is humanism?

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