The bench of NJ Supreme Court Justices during a session of the New Jersey Supreme Court on January 30, 2023. Left to right Justice Douglas M. Fasciale, Justice Fabiana Pierre-Louis, Justice Anne M. Patterson, Chief Justice Stuart Rabner, Justice Lee A. Solomon and Justice Rachel Wainer Apter. (Amanda Brown for New Jersey Monitor)
Almost a decade after a Catholic elementary school fired an unmarried teacher for getting pregnant, the state’s top court considered her unlawful termination claim Monday in a long-contested case that could have far-reaching implications for both employment discrimination law and religious rights in New Jersey.
During nearly three hours of arguments, the New Jersey Supreme Court weighed two overarching questions.
Did New Jersey’s law against discrimination, which lists pregnancy and marital status as specially protected classes, bar St. Theresa School in Kenilworth from firing art teacher Victoria Crisitello in 2014? Or was the termination allowable under the First Amendment’s “ministerial exception,” which exempts religious employers’ “ministers” from anti-discrimination laws?
Crisitello informed St. Theresa’s principal Sister Theresa Lee she was pregnant during a conversation they had about Crisitello taking on additional duties and her resulting request for additional pay. Within weeks, school officials fired her, blaming her pregnant, unwed status, and hired a married mother as her replacement, according to court filings.
Attorney Peter Verniero, who represented St. Theresa, argued that Crisitello said she knew premarital sex violated canon law on immoral conduct and adultery, even though it wasn’t explicitly banned in the school’s employee handbook. And while she didn’t specifically teach theology, the Catholic faith “permeates every classroom,” essentially making all teachers ministerial, he said.
“It’s part and parcel of what it means to be at a Catholic school, to be a teacher, a propagator of the faith, a defender of the faith,” Verniero said. “The reason for the discharge was a wholly doctrinal reason.”
The termination also is a matter of church autonomy, he argued.
“Religious organizations have the right to pick their own workforce, have the right and the autonomy to govern their own workforce,” he said.
But attorney Thomas A. McKinney, who represented Crisitello, said the school didn’t ask how many other employees engaged in premarital sex and so did not apply that code of conduct to everyone.
“When you have a policy, that needs to be applied uniformly across the board to all people and not singling someone out,” McKinney said.
Solicitor General Jeremy Feigenbaum, who argued to uphold the state’s law against discrimination, pushed back on Verniero’s claim that the work Crisitello did was ministerial. She did not lead prayers, provide religious instruction, or have any religious training herself and so should have the protection of the state’s anti-discrimination law, he added.
Attorney Natalie J. Kraner, representing the Women’s Law Center, said New Jersey has about 250 Catholic schools where nearly 7,500 teachers work. She warned the justices that if they ruled in St. Theresa’s favor, all sorts of religiously affiliated employers, including colleges, hospitals, nursing homes, and publishers, could try to justify terminations under the First Amendment’s ministerial exception.
“That is thousands and thousands and thousands of New Jerseyans who will lose their rights under LAD,” Kraner said, referring to the law against discrimination.
The debate comes more than two years after an appellate panel ruled in Crisitello’s favor, saying St. Theresa officials enforced their policy unevenly because they didn’t investigate whether any other employees had premarital sex or otherwise violated the school’s code of conduct.
That logic prompted the liveliest debate at Monday’s hearing, with both sides squeamish about the prospect of employers probing their employees’ off-duty sexual activity.
“Unless it is overturned, the appellate division’s untenable rule would survive a trial in this or any future case,” Verniero said. “This would inflict continual, constitutional injury on the religious employers in New Jersey, and it would expose countless religious employees to unfounded interrogations.”
Instead of investigating employees, McKinney suggested a better way to ensure religious employees follow their employers’ moral codes would be to require them to certify they haven’t participated in any forbidden conduct.
But Justice Anne Patterson responded: “It has been documented that people are not always entirely truthful in all respects.”
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