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Fort Wayne case may force SCOTUS to define who qualifies as a minister

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Since the Supreme Court of the United States weighed in on “ministerial exception” in January 2012, cases have been percolating across the country spurred by religious institutions claiming the exception as protection against employee discrimination lawsuits.

However, the Supreme Court limited its ruling to only the facts presented in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 132 S.Ct. 694, and left for another day how the exception would apply to workers who do not have specific religious duties.

A lawsuit from Fort Wayne is one of the first cases regarding the ministerial exception that arose after the Hosanna-Tabor decision, and attorneys believe it has the potential to force the Supreme Court to set parameters for determining who in a religious-affiliated institution qualifies as a minister.

delaney-kathleen.jpg DeLaney

The Fort Wayne case, Emily Herx v. Diocese of Fort Wayne-South Bend and St. Vincent De Paul School, 1:12-CV-122, was filed in the U.S. District Court for the Northern District of Indiana, Fort Wayne Division in April 2012 – three months after SCOTUS offered its opinion.

Emily Herx’s position appears to fall in that gray area not addressed by the Supreme Court. She was a language arts and literature teacher in a Catholic school but she did not teach any religion courses or lead any church activities. Yet, in response to her complaint that the diocese discriminated against her by terminating her employment after she underwent infertility treatments, the diocese claimed it was exempt from the civil proceeding by the Establishment and Free Exercise clauses of the U.S. Constitution.

“Our view is that the ministerial exception should be limited to people who have religious duties and responsibilities as part of their job and to people who are ordained as ministers,” said Kathleen DeLaney, the Indianapolis attorney representing Herx.

Circuit courts had been deciding ministerial exception cases before the Supreme Court took up the matter. Typically, the decisions from the Circuit went a step farther by formulating tests to determine who fits the minister definition.

The 5th Circuit Court of Appeals established three factors an employee must meet to be considered a minister and the 4th Circuit developed a primary duty test. In Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (2003), the 7th Circuit Court of Appeals concluded that a church’s press secretary served a “ministerial function” which barred her employment discrimination suit.

Jennifer Drobac, professor of law at Indiana University Robert H. McKinney School of Law, speculated the Herx suit will go to trial. She contended the Catholic Church wants to use this dispute as a test case to expand the definition of ministerial exception.

Pointing to the conservative nature of the Fort Wayne community, Drobac believes the church may be counting on a favorable verdict. This case, she said, is less about the intricacies of who qualifies as a minister and more about power.

Religious entities want to be completely left alone by the government and, regardless of what the final outcome is, Herx will have a ripple effect by answering how much independence these organizations can have, Drobac said.

Expanding a family

In her complaint, Herx contends the diocese treated her less favorably than other employees because she sought medical treatment for infertility so she and her husband could have more children. The diocese’s action to terminate her employment, she said, violated Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act.

Herx’s problems with the diocese began when she requested time off for another round of in-vitro fertilization treatments. Msgr. John Kuzmich, then-pastor of St. Vincent de Paul Parish, told Herx she was setting an inappropriate moral example that could have adverse spiritual consequences for her students.

She appealed the decision to not renew her teaching contract, but Bishop Kevin Rhoades refused to reverse course. Rhoades characterized the process of IVF as an “intrinsic evil” because it involves the “deliberate destruction or freezing of human embryos.”

The Diocese of Fort Wayne-South Bend and its attorneys declined to comment to the Indiana Lawyer. However, in a statement issued shortly after Herx filed her complaint, the church asserted its teacher contracts clearly state the policies requiring classroom instructors to have respect for and abide by the tenets of the Catholic faith.

While the definition of a minister is foggy in the Herx case, it was very clear in the Hosanna-Tabor dispute. Attorney Michael Ewing’s description of Hosanna-Tabor as a “slam dunk case” is confirmed by the Supreme Court 9-0 decision. Cheryl Perich, the plaintiff in the Hosanna-Tabor case, had ministerial duties that included leading her students in prayer and participating in chapel services. In addition, she had passed the requirements to be classified as a “called” teacher and was given the title of “Minister of Religion, Commissioned.”

Left undecided by SCOTUS was where the ministerial line lies for employees who worked for religious-affiliated entities but were not tasked with religious duties. Ewing, senior associate at Frost Brown Todd LLC in Nashville, explained a religious-affiliated employer might feel its employees should embody and personify its core religious values. Consequently, those employees should be held accountable when their actions are not consistent with those values.

DeLaney, managing partner at DeLaney and DeLaney LLC, said if the argument eventually prevails that every employee of a religious institution is a minister and therefore unprotected by Title VII and the ADA, it would have enormous repercussions for the millions of people who work for religious-affiliated organizations.

That point about the potentially large impact was echoed by the American Civil Liberties Union and the American Society for Reproductive Medicine. Both organizations filed amicus curiae briefs in opposition to the diocese’s motion for judgment on the pleadings dismissing Herx’s complaint.

The ASRM argued allowing the diocese to terminate employees who sought IVF treatment would have “chilling effect” on a huge patient base. Likewise, the ACLU asserted the Catholic Church’s position would bring back a time when religious-affiliated institutions discriminated against individuals with HIV, African-American doctors and women who became pregnant.

Cincinnati verdict

Writing for the Supreme Court, Chief Justice John Roberts confirmed the Circuit courts’ view that a “ministerial exception” does exist. SCOTUS held that by requiring a church to retain an unwanted minister, the state is interfering with the internal governance of the religious organization and, therefore, infringing on the church’s right to shape its own faith and mission through it appointments as guaranteed by the Free Exercise Clause.

The ministerial exception, said Rozlyn Fulgoni-Britton, an employment attorney at Faegre Baker Daniels LLP in Indianapolis, “keeps the courts and juries from hashing out ecclesiastical doctrine and weighing faith.” On the other hand, “employees have less protection from employment discrimination law in certain cases.”

A recent verdict in a ministerial exception dispute in Cincinnati gave a boost to Herx. In Dias v. Archdiocese of Cincinnati, 2012 WL 1068165 (S.D. Ohio, March 29, 2012), Christa Dias was fired from her teaching position after she became pregnant through artificial insemination.

The archdiocese claimed Dias was fired because she failed to act in a manner consistent with the philosophy and teachings of the Roman Catholic Church. However, the jury agreed with Dias that she was discriminated against and awarded the former teacher $171,000.

Members of a jury typically are persuaded by the fairness aspect, rather than the technical legal issues, Fulgoni-Britton and Ewing said. When jurors judge the action to be unfair, a high verdict likely will follow.

Given the number of couples who have undergone infertility treatments and understand the emotional rollercoaster, DeLaney believes the Dias outcome is a positive indication of how a jury might react to the evidence in the Herx case.

“I think a lot of people have identified with Emily,” DeLaney said, “and her struggles to expand her family with her husband.”•

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  1. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  2. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  3. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  4. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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