Protecting an educational ethos?
In 1985 in Ireland a female schoolteacher was dismissed by the secondary school employing her when she became pregnant. She challenged the lawfulness of the dismissal, and the case was heard in the Employment Appeals Tribunal, and on appeal in the Circuit Court and, finally, the High Court. The teacher’s case was that she had been dismissed on grounds of pregnancy, a ground for dismissal expressly prohibited under the Unfair Dismissals Act 1977. The school in question was a Catholic convent school, and it argued in its defence that she had not been dismissed because she was pregnant, but because her pregnancy was a visible rejection by her of the ethos of the school, as she was living with a man to whom she was not married. The school won its case at all stages, with the various tribunal members and judges stating that it was entitled to protect its particular ethos, and that the teacher had demonstrated visibly that she was rejecting it. In fact in an extraordinary aside the Circuit Court judge hearing the case pointed out in his judgement that ‘in other places women are being condemned to death for this sort of offence’ (Flynn v. Power and Sisters of the Holy Faith).
So is all this kind of thing different today? Well, last month a Roman Catholic institution in Philadelphia, Chestnut Hill College, fired one of its lecturers, a priest, after the local diocese received a complaint about the priest because he was gay. It is in fact a complex case, because when they discovered that he was gay they also discovered that he was not a Roman Catholic priest, but rather a priest of the Old Catholic church (which split from Rome in the 19th century and is now aligned with the Anglican church). The college has defended its actions by pointing out that same-sex partnerships are ‘contrary to the teachings of the Roman Catholic Church’.
In these islands there are many denominational schools and institutions, and these cases raise the question of whether they should be allowed to protect their ethos even when this means disciplining or dismissing staff whose actions violate the denomination’s moral code but are protected by law. It is unlawful to fire someone because of their sexual orientation: but should there be an exception to this where the employer maintains religious objections to homosexuality? This may become even more significant when colleges with a denominational ethos are the only providers of certain kinds of programmes.
I am not arguing the case against religious institutions (though I think the near-monopoly of denominational education at primary level needs to be revisited urgently) – indeed DCU has three affiliated denominational colleges of which I was always very proud. But I do not believe that it should be lawful to protect an ethos where elements of that ethos actually violate the law of the land. It is, I think, to maintain a moral perspective opposing certain types of sexual conduct, but where such conduct is protected by law, the law cannot (or should not) be trumped by private morality.