Day at the Races

Eric Sherman November/December 1997 It was bitterly cold in Massachusetts on Christmas Day in 1992, with temperatures plunging below zero. But neither the ice nor the Christmas season kept the faithful away from betting on their favorite greyhounds at the Raynham-Taunton Greyhound Park.

George Carney, the track owner, had received permission from the state racing commission to open on Christmas Day. Though Carney had asked for volunteers, only a handful of pari-mutuel clerks (those who sell the betting tickets) rose to the occasion, not enough for one of the busiest days of the year, and so he ordered others to work.

Patricia Reed and Kathleen Pielech, two pari-mutuel clerks, were scheduled for the Saturday on which Christmas fell. Both women, devout Catholics, were concerned. According to Pielech, in nine and a half years at the track she had never minded working on the Fourth of July, Memorial Day, even Thanksgiving. But Christmas was different.

"In 1992 in October," Pielech said, "I asked my supervisor for Christmas off because I knew it was going to be a problem. She told me that we weren't going to be open on Christmas, so there was nothing to worry about."

When, one week before the holiday, employees were notified that anyone scheduled for December 25 would have to work, the two women, independent of each other, refused.

"As soon as I read the sign," Pielech said, "I told my supervisor that 'I can't do this. It's against my religion, it's against everything I believe in, and I will not sacrifice my religion.' " Pielech then asked for the day off without pay. "My supervisor said she'd see what she could do, but in the end I was told I couldn't get the day off."

Neither Reed nor Pielech showed up, and both were fired. Believing that their religious rights had been violated, the two women, members of the same parish, hired Harvey Schwartz, a civil rights attorney. He filed suit, arguing that their dismissal violated a 23-year-old Massachusetts law that specified: "It shall be an unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individuals to violate, or forgo the practice of, his creed or religion as required by that creed or religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day."

When the case went to court, the track argued that the women could have worked because the Catholic Church did not "require"-as the law specified it must-the faithful not to work on Christmas Day.

"The track had an affidavit from a priest," said Schwartz, "who stated that church canon law did not require them to abstain from work if they went to Mass. Meanwhile, we had an affidavit from a priest who said that canon law urges Catholics not to work on holy days of obligation."

The priest the women used was Monsignor John Olivera, who at the time was vicar general of the Fall River diocese, the chief assistant to the area's bishop. Olivera agreed that the women were following their religious duty by abstaining from work. Weighing in on the track's side was Monsignor Eugene McNamara, of Scituate, Massachusetts, who asserted that by attending services, the women fulfilled their obligation.

At its face, his affidavit might have seemed odd. Here was a lone priest from another diocese taking exception with a statement by an official spokesperson of the Roman Catholic Church. Though he had no ties to the diocese, McNamara had ties to Carney (a fact that didn't come out at the time of the trial), a longtime donor to Catholic Charities of Massachusetts, an organization that McNamara had once managed.

According to Robert Deeley, the judicial vicar for the Boston archdiocese: "To say that they [Reed and Pielech] simply met everything by going to Mass in the morning doesn't seem to reflect what the church wants these holy days to be." Deeley, who holds a doctorate in canon law, was surprised by McNamara's interpretation. "I just find it surprising that anyone could read the law in that way and see that the obligation to attend Mass is the only thing they are obligated to."

When the trial judge heard the case, however, he had the two affidavits only, and with no reason to question the expertise or motives of either one, he ruled in favor of the track. Schwartz and his clients, in turn, appealed to the Supreme Judicial Court (SJC), the commonwealth's highest judicial body, which ruled in August 1996 that the law Pielech and Reed had sued under was unconstitutional because it wrongly forced judges to delve into theology and doctrine. The majority stated that the law improperly granted protection to members of organized religions, but not to lesser-known faiths or to individuals who may hold unique but sincere religious convictions.

"A statute that prefers one religion over another," said the court, "violates the Establishment Clause." It ruled that the statute required judges to determine the beliefs of "adherents of the Roman Catholic faith. These are not proper matters for the courts to decide."

In reaction, the Massachusetts legislature immediately drafted another version of the law that would, it hoped, pass judicial scrutiny. The new bill states that "it is a significant public interest and an urgent necessity . . . to protect individuals from discrimination in the workplace based on their sincerely held religious beliefs without regard to whether such beliefs are recognized by an established religious institution." The bill states that the term creed or religion "may mean sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed, or required by an established church or other religious institution or organization."

The Massachusetts Senate passed the bill in September despite vocal opposition (interestingly enough, almost all the dissenters were from the area surrounding the track).

"The problem with this litigation," said Representative James Fagan, a Democrat from Taunton who freely admits that he has received campaign donations from Carney but denies that it influenced his initial opposition, "arises when the mom and pop store that employs two people and counts on them to come in on whatever day it is they open-Groundhog Day-and their employee simply doesn't show up on that day. They say, 'You're fired. You were supposed to work; you were scheduled.' And the employees say, 'Oh, no. The groundhog is a sacred animal to me. It's the day that I keep holier than all other days of the year, because Groundhog Day is the only day that I don't have to send somebody a card, buy somebody I hate a present, or eat dinner with a bunch of people I don't like.'"

In Fagan's view, people who did not want to work on Christmas Day were free to find employment more to their liking. He also thought that the need for a new law was slight. "It was a piece of legislation that I thought, quite frankly, addressed something that had not been a widespread or great problem within the Commonwealth of Massachusetts and continues not to be a great problem."

Yet when the law was ruled unconstitutional by the SJC, Reed and Pielech were among more than 40 people who had similar cases pending.

In November, at the legislature's request, the SJC ruled the new statute constitutional, at which point Fagan and some other representatives withdrew their objection. Other representatives, however, continued to oppose a new law, dragging the process on until the bill died in the Massachusetts House, ironically, just before Christmas. In the 1997 legislative season, the bill was immediately refiled in both chambers and passed in February. Governor Weld signed the bill into law within hours of receiving it.

The battle for Reed and Pielech isn't over (they're suing for compensation). And no doubt, the new law won't answer all the tricky problems involved when religion and the workplace collide.

One final irony: though the women were fined for not working on Christmas Day 1992, the track hasn't been open on a Christmas since.

Article Author: Eric Sherman