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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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