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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. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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