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Brian Lehrer: Brian Lehrer on WNYC, and now a New Jersey Supreme Court case that has further solidified protections against anti-discrimination laws for religious employers or put more bluntly, if you have sex out of wedlock and we know about it, we can fire you. Here's the story. In 2014, Victoria Crisitello, an art teacher at St. Theresa's School in Kenilworth, New Jersey, was fired after revealing she was pregnant. She was also unmarried. This week, the New Jersey Supreme Court dismissed Ms. Crisitello's discrimination lawsuit.

Here to take us through the case and the ruling is Dana DiFilippo, senior reporter at The New Jersey Monitor, who covered the story. We will discuss the legal issues involved but also open it up to calls, especially from Catholic listeners on the question, should Catholic schools be firing teachers for having sex out of wedlock, even if they have the legal right according to this ruling? 212-433-WNYC, 212-433-9692. You can call or text that number or tweet @BrianLehrer. Dana, welcome back to the show.

Dana DiFilippo: Hi, Brian. Thanks for having me.

Brian Lehrer: I know I briefly mentioned the circumstances for the case just now, but can you take us into more detail about what happened?

Dana DiFilippo: Sure, yes. This case goes all the way back to 2011. That's when Victoria Crisitello was hired at St. Theresa's School. She was supposed to be a caregiver in the toddler room. She worked there for a few years. This is a school that's in the Archdiocese of Newark. She had actually been a student there herself years earlier. Anyway, she was working there. At some point in 2014, the principal approached her and said, "You've been doing a good job. How about you come work for us full-time as an art teacher?" During that conversation, Ms. Crisitello actually volunteered the fact that she was pregnant.

A few weeks go by and suddenly she gets terminated. The reason that they give her for her termination is that she was pregnant and unmarried and because she had premarital sex, that was a violation of the church teaching. They ended up firing her for that reason. She soon after filed this lawsuit under New Jersey's Anti-Discrimination Law, which is called the Law Against Discrimination. It's been bounced back and forth between the trial court, the appeals court. Since then, it's been a decade of litigation basically. Then it led to this decision on Monday in which the state Supreme Court upheld the church's view of things.

Brian Lehrer: Maybe briefly outline for our listeners what constitutes employment discrimination in general and any laws or protection specific to New Jersey. What was the argument here in court that this was discrimination?

Dana DiFilippo: Basically, her attorney-- There's a number of protected classes underneath the Law Against Discrimination; age, gender. Pregnancy and marital status are two of those protected statuses. That was what they were claiming was that under this Law Against Discrimination, the state law, that the St. Theresa's had broken that state law. That was pretty much the argument that-- The attorney, the representative made other arguments, but that was the argument that he consistently made since they filed the lawsuit.

Brian Lehrer: What was the school's defense?

Dana DiFilippo: The school's defense was that federal discrimination laws that they were under the Law Against Discrimination. That was one of the interesting things about this case was both sides were using this state Law Against Discrimination to argue their cases, but anyway, St. Theresa's defense was that religious employers are exempted from anti-discrimination laws. That is something on a federal level that federal courts have upheld, including the US Supreme Court.

On the state level, the Law Against Discrimination, which is a law that dates back to the 1940s, in the 1970s, they created this religious tenets exception. It basically makes something that everyone might agree is discrimination, non-discriminatory if a religious employer does it to comply with their faith. In this case, that was what St. Theresa's was arguing, was that the Law Against Discrimination protected their right to employ who they wanted in line with the faith.

Brian Lehrer: I guess the court sided with that argument, ultimately.

Dana DiFilippo: Ultimately, the court did side with that argument. There was all kinds of interesting little wrinkles that came up during the arguments in April, even to the point where Ms. Crisitello's attorney had made the point, well, pregnancy is one of those few "church transgressions" that you can see evidence. There's all kinds of other church transgressions that you might not see evidence of. For example, if a man engaged in premarital sex, how would you know, or even a woman, if she didn't get pregnant, how would you know?

One of his really interesting arguments during those Supreme Court arguments was, is St. Theresa's going to probe the private sexual lives of all of their employees, because he was arguing that they did not apply this premarital sex ban evenly to all employees. He said, "You know that Ms. Crisitello did it because she voluntarily told you that she was pregnant, but how do you know about all your other employees what they're doing in the bedroom?" It was a really interesting argument. Of course, everyone was then squirming in the courtroom about the prospect of an employer asking all employees about their sex lives.

Brian Lehrer: Listeners, again, we're inviting you into this conversation, especially if you're Catholic or have sent your children to parochial schools. Would you support your own diocese or school in these circumstances? Why or why not? How do you feel all of this relates to your own understanding of Catholic education or church doctrine? Call or text us, 212-433-WNYC or tweet @BrianLehrer. Also, if sex out of wedlock is a fireable offense that they're actually acting on, what else should be? Anything else sex-related? Anything else from other categories of scripture?

I was thinking, how about failure to welcome the stranger into your home, all those Catholic asylum seekers, and it doesn't even matter that most or many are Catholic, but they are. Jesus said, "I was hungry and you fed me. I was a stranger, and you welcomed me in your homes. I was naked and you clothed me." Is anyone getting fired from Catholic schools for not doing that? Do you think the emphasis is on the right thing here or is asking that question just my own whataboutism? 212-433-WNYC on any aspect of this that you want to weigh in on. 212-433-9692.

Now that the New Jersey Supreme Court has weighed in and said what's legal, Catholic listeners especially, what do you think is right in the context of Catholic schools? Ken in Queens, you're on WNYC. Hi, Ken.

Ken: Hi. Born and raised Catholic, which is why I'm a proud atheist today. I just wanted to ask the school principal in New Jersey, what would Mary do?

Brian Lehrer: Do you have an answer to that question?

Ken: Oh, well, everybody loves to ask, what would Jesus do? Will we act in a way that Jesus would? But Mary was a nun, a pregnant woman, and would she have been discriminated by the same principle again?

Brian Lehrer: Ken, thank you very much. We're going to go to Dave in Bergen County, who does teach at a Catholic school, I see. Dave, you're on WNYC. Hi there.

Dave: Yes. I was just saying before to the screener that basically when you sign on to work at any school in archdiocese, you sign a code of conduct, and part of that code of conduct is to be a good-standing Catholic, whatever that means. I don't really know what that means, but one of the things you can't violate is a term called cohabitation.

That means living in a sexually non-pure relationship with somebody. Basically, it means sex out of marriage, but I almost understand the right, because if you're signing on to work at a school and you sign this code of conduct, why are you upset that they're getting rid of you because you're not following the code?

Brian Lehrer: As a matter of contract law, I get your point. Do you, as a music teacher there, and it sounds like maybe you do, support the particular code of conduct that was in this contract, and it sounds like that you have had to agree to as well?

Dave: Yes, actually, I do. Yes, I feel like if you don't want to follow the code of conduct, that's totally fine, but then maybe don't work at a Catholic school in the Archdiocese of Newark. It's your right.

Brian Lehrer: Dave, thank you very much for your call. To the first caller asking what would Mary do and Mary was an unwed pregnant mother, I don't think the plaintiff here can claim Immaculate Conception, right?

Dana DiFilippo: Yes, that didn't come up in the arguments at all, but it raises an interesting question because you don't have to have premarital sex to get pregnant. There's such a thing as artificial insemination. This touched upon one of the things that came up in the arguments was just this kind of prospect of your employer asking about your sex life. The second caller raised this point about her signing-- that religious employers require you to sign a code of conduct. They did. In this case, she did. Victoria Crisitello did acknowledge that she signed two different things that pledged to follow the teachings of the Catholic Church.

In fact, that was one of the things that the Supreme Court cited in their decision was that she signed these things knowingly. That was one of the reasons why they said they didn't agree with her fight here.

Brian Lehrer: Right. I guess the question legally was whether that provision in a contract violated anti-sex discrimination laws.

Dana DiFilippo: Right. Also, the handbooks didn't expressly say you cannot have premarital sex. They just generally said the Catholic faith. What's interesting is the Supreme Court here always looks to state statutes when they decide matters, and that's what they did here. There was a First Amendment argument that came up in this case. First Amendment as you know guarantees the right to unfettered religion. The question there or the reason there that the First Amendment came up was the attorney for St. Theresa's School was arguing, "We should be able to hire who we want. This is a free exercise of religion."

The Supreme Court didn't really decide that question because they didn't get past the statute part of things. They made this decision based solely on what the Law Against Discrimination says. The Law Against Discrimination does clearly have this exception for religious employers. The constitutional argument is interesting, but that's where even the US Supreme Court probably would rule against them in this case because of just the way the court's been going lately in its religious rulings.

Brian Lehrer: Interesting that, and I didn't realize this, and I don't think I clearly communicated this in the intro, that the contract did not specify out-of-wedlock sex as something she was agreeing not to have in the terms of her employment. It was just adhering to Catholic doctrine generally.

Dana DiFilippo: Basically, yes. I forget the exact wording, but it was, "You have to follow the teachings of the Catholic Church. All teachers are expected to model the Catholic faith." One of her arguments here was that she's not a religion teacher. She's an art teacher and she was a toddler teacher, so she would understand a little bit better if she was teaching theology. She wasn't, and she wasn't religiously trained. That was one of the ways they were trying to get around this, but there's another-- there's something called the ministerial exception. That's an exception in the federal employment law that was-- I think it was first recognized about a decade ago.

It means that it protects the church's "ministers." That was a really interesting argument in this case too, was, what is a church minister? Is a toddler room teacher a church minister, or do you have to be a theology teacher to be considered a church minister? This ruling seems to suggest that-- they didn't really tackle that specific question in this ruling, but that's kind of one of the takeaways here is that, if you work for a religious employer and you sign this code of conduct and you are expected to follow their canon or whatever, you would be applicable to this exception.

Brian Lehrer: If the terms of the contract were that general, adhering to Catholic doctrine, do you happen to know if either the school or the diocese or even more broadly Catholic schools have been firing people for not adhering to aspects of Catholic doctrine that don't have to do with sex? What if somebody is out there publicly advocating for the death penalty? Or what about the charitable aspects of being a Catholic and ministering to the downtrodden and things like that or providing for them that I was citing before in the calling pitch? Are any Catholic school teachers getting fired for anything other than things related to sex?

Dana DiFilippo: Yes, that's a great question. That didn't come up in this case. The sex question definitely came up in this ruling. They referred to a male teacher who got his girlfriend-- they weren't married, he got his girlfriend pregnant, and so that guy was terminated too in the same archdiocese. I know there was a case back in 2016 in Paramus that a teacher who was in a-- she was gay, she was in a same-sex marriage, she got fired for that. Other transgressions, I'm not sure of. I think that raises this issue of how would they know unless they start really probing your personal life.

I don't know that they do that. This is the stuff where if they find out about it, then you-- but I don't know if this is a call for religious employers to start trolling their employees to see how they might be violating church law in their private lives.

Brian Lehrer: I'm still thinking about that Virgin Mary Immaculate Conception caller. I guess, actually, Mary was married, so the caller was wrong obviously. Mary was married to Joseph. She just-- well, we know what they say happened. But she wasn't married when the conception happened, so I don't know. That's the fine distinction there, I guess. All right. A listener texts, "When I was in Catholic school in the '90s, girls would be expelled if they got pregnant, but the boys who got them pregnant were not expelled. I doubt that anything has changed. Only women are the ones who suffer from these codes of conduct."

Though you told us that a man who they knew got his girlfriend pregnant out of wedlock was also fired in another case. Another listener writes, "New Jersey Catholic School surely gets state funding which would make them beholden to the laws of discrimination. This needs to be revisited." What about state funding here? Did that come up? Because Catholic schools do generally get some state funding.

Dana DiFilippo: That did not come up, and I actually don't know that that's true. I don't know really specifically how state church schools are funded. I don't think that they are funded.

Brian Lehrer: Maybe it's different in New York and New Jersey.

Dana DiFilippo: Yes, they don't.

Brian Lehrer: I know in New York, they can get some funding for transportation, for special needs services.

Dana DiFilippo: Oh, I see.

Brian Lehrer: Things like that, that do draw some government funding into Catholic schools in New York and other religious schools. Maybe that's not the case in New Jersey. You're not sure, right?

Dana DiFilippo: No. Yes, I don't believe it's the case. I'm not entirely sure, but I don't think that's the case. Certainly, a lot of times these rulings come out and there's opportunities for legislation, and I wouldn't be surprised if that happens in this case where some of the lawmakers who learn about this opinion might see opportunities for legislation to tweak this Law Against Discrimination in one way or the other or on the funding issue too. The one person that you said had texted in brought up the issue of, is this a gender-based punishment because you can tell that women are pregnant, whereas you can't tell if a man has had premarital sex.

It was interesting because there was a number of groups that filed friend-of-the-court briefs in this case, and a lot of them were women's rights groups. That was one of their warnings was-- I think it was the National Women's Law Center, the ACLU, the Feminist Majority Foundation. One of their warnings was, this is not good for women or for anybody employed by any sort of religious employer because it's not just this one school. Just in New Jersey alone, there's 250 Catholic schools and they employ thousands of teachers besides Catholic or religious schools, which are clearly a religious employer. There's all kinds of religion-adjacent employers.

There's a Catholic hospital or a Jewish newspaper or colleges that have a religious affiliation, nursing homes. That was one of the warnings that was brought up by some of these groups that filed these briefs was how this ruling might be taken advantage of by employers trying to justify a firing. They'd be like, "Oh, well, religious tenets exception." That is something I think we should look for in the future, possibly.

Brian Lehrer: To be brought to courts in New Jersey, whether individual employees who are not the Catholic Church might say, "Well, this goes against my personal religious values so I can fire you too." Is that it?

Dana DiFilippo: Well, personally, but also like a Catholic hospital or something like that, where religious faith it's not what they do. A hospital does not teach religion, but if it's St. Francis Medical Center, for example, where the religion seems to only be in the name, then would an organization like that use this ruling to justify a firing that may have some other cause?

Brian Lehrer: By the way, on the state funding question, we just looked it up, and we have this from the Catholic Star Herald, which reported just last month, "New Jersey non-public school students, non-public school, have been granted increased funding for transportation, a much-needed boost that may give Catholic schools a more attractive financial standpoint from which to accept transportation bids." That continues, "Passed by both houses of the New Jersey legislature and signed by Governor Phil Murphy on June 30th, the fiscal year 2024 state budget allows a per pupil ceiling raise to $1,165 per pupil." I guess that's for transportation.

The budget also contained modest increases in technology, nursing service, and compensatory education. I guess that also refers to funding for non-public schools in New Jersey, approved by the legislature and signed by the governor. On the New Jersey side right now as we talk to Dana DiFilippo, senior reporter at The New Jersey Monitor, who covered the story of the New Jersey Supreme Court ruling this week, which upheld the right of a Catholic school to fire a teacher for getting pregnant out of wedlock.

Mary in Brooklyn, you're on WNYC. Hi, Mary. [silence] Mary, are you there? Is it Mary in Brooklyn on this line? Mary once, Mary twice. How about Lee on Staten Island? Lee, are you there?

Lee: Yes, I am.

Brian Lehrer: Hi.

Lee: Hi, how are you?

Brian Lehrer: Good. What's you got?

Lee: Well, I taught in a Catholic school, I was raised Catholic. I'm retired now, I'm still Catholic. My question is, if you would take out the word Catholic and inject into all of your conversations the names of other religions, would this be such a brouhaha?

Brian Lehrer: What do you think?

Lee: I don't think so. I really don't think so. I think the Catholic Church because of its size is an easy target.

Brian Lehrer: Yes. Although I could argue that, let's say it was a Muslim school, you would have a lot of people who might call in and say, "You see, we have to have a Muslim ban in this country because they're anti-woman. Look at the Taliban. It's the same thing here." Right? Am I right?

Lee: Right. That you can do that with anybody. What about an Orthodox Jewish school?

Brian Lehrer: People might have the same conversation.

Dana DiFilippo: It's interesting that you bring that up.

Brian Lehrer: Dana, go ahead.

Dana DiFilippo: I was going to say there was a Jewish group, Agudath Israel of America, that did file a brief in this case too. Their argument was that this is an issue of autonomy, as a religious employer, as self-governments. They also brought up the idea of doctrine, that they want people who can carry out their doctrinal beliefs and stuff like that. Basically, if you don't abide by the faith, you shouldn't be there. Yes, Catholic was interwoven all through this case for the past decade, but other religious groups did weigh in for sure.

Brian Lehrer: Yes. Maybe if an Orthodox yeshiva fired a teacher for the same reason, we would be having a lot of the same conversation in the media after it went through the courts in this way. That would be my guess. There's also the question, it doesn't sound like it came up in court this way, Dana, but when we talk about freedom of religion, I realized this wasn't a First Amendment case, per se.

When we talk about religious autonomy, freedom of religion, I don't expect you to have the answer to this question so I'm just putting it out there, maybe rhetorically, why does freedom of religion pertain to the institution more than the individual? Because the teacher could say, "It's my First Amendment religious right to feel like it's okay to have gotten pregnant this way," but she doesn't get the freedom of religion protections, the school does, the church does.

Dana DiFilippo: Right. That would be interesting if there was a religion that believed in [chuckles] sex whenever they want or whatever. I'm not sure--

Brian Lehrer: Right. It's not about the religion believing it, it's about the Constitution granting the First Amendment religious liberty autonomy, right?

Dana DiFilippo: Right. Maybe it's an issue of organized religion too as opposed to personal beliefs. Yes, I think this goes back to the First Amendment and the Constitution. That's the way the US Supreme Court has been going lately is to route things in the Constitution and history and stuff like that. I think in cases like this, the state Supreme Court really didn't route this ruling in the Constitution, but I think that's one of the reasons why the attorney, in this case, isn't going to appeal to the Supreme Court because the US Supreme Court hasn't really been-- they don't think that it'll be in their favor.

Brian Lehrer: As we start to run out of time, do you think that this case has national implications? You were saying, technically, it was not brought on constitutional grounds, but do the other states have similar laws, as far as you know, that would allow Catholic or Jewish or Muslim or any other religious schools with the same doctrine to fire teachers on these same grounds?

Dana DiFilippo: Well, there's actual federal precedent for it. It's an exception in the federal discrimination laws but also precedent in the US Supreme Court. They have been lately, especially, ruling in the favor of religious employers on this issue. I think that's why folks who are fighting it like the Victoria Crisitellos of the world, that's why you're seeing that the reaction to this from those folks were disappointed but were, "What do we do about it?"

Because federally, it's been going in that direction on the court, and also, there is that exception in the federal discrimination laws. I don't know that there's hope for any change on this. Again, this ruling was rooted in statutory in the state law. Yes, it's an interesting question.

Brian Lehrer: We're going to take one more call because while we've been having this conversation about the case, there's a whole conversation going on in the background about that first caller who brought up the Virgin Mary and my response to it about Immaculate Conception, and then what actually-- I think Steven in Maplewood is going to clear this all up. Steven, you're on WNYC. Hello.

Steven: Hello, Brian. Just to recite the mantra, long-time listener, first-time caller. I don't want to take a position on the substance of the issue that you're discussing. It's a very interesting one and a very controversial one even in Catholic circles, but I did want to make one small correction and that has to do with the doctrine of the Immaculate Conception. There's much misconception and misunderstanding, even among Christians and Catholics. I don't want to create a distraction, but what the doctrine refers to is the fact that Mary herself, because she was to become the Mother of God, was born without the taint of original sin. Therefore, she was sinless.

That's the Immaculate Conception. It's a relatively recent doctrine in the Catholic Church. I think it was pronounced in the-- I'm going to say the mid-19th century, or maybe it was even in the 20th. Just that my late wife worked for many, many years in a Catholic school, and so I'm quite familiar with these controversies. It's an interesting legal issue. One that goes to the heart of the bigger issue of relations between church and state, which is something that I'm very much interested in. I hope I haven't created a distraction, but that's what I called to say.

Brian Lehrer: No, you've created a clarification for how people should use the term Immaculate Conception. Thank you very much, Steven.

Steven: Great.

Brian Lehrer: Thank you.

Steven: Thank you, Brian. Bye.

Brian Lehrer: There we will leave it with Dana DiFilippo, senior reporter at The New Jersey Monitor, who covered the story of a Supreme Court ruling this week. That is the state Supreme Court ruling this week allowing a Catholic school to fire a teacher who they knew is pregnant out of wedlock and that it was not a case of sex discrimination under New Jersey law. Dana, thank you so much for joining us.

Dana DiFilippo: Sure, Brian. Thanks for having me.

 

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