7th Circuit ruling expands ministerial exception, potentially impacting Indiana high school cases

Although the lawsuit involved the Archdiocese of Chicago and a former church employee, attorneys on opposing sides of a series of lawsuits against the Catholic Church in Indianapolis have differing views over how far the en banc ruling from the 7th Circuit Court of Appeals on the ministerial exception will reach.

Shelly Fitzgerald and Lynn Starkey, former guidance counselors at Roncalli High School, and Joshua Payne-Elliott, a former foreign language and social studies teacher at Cathedral High School, all filed separate lawsuits against the Roman Catholic Archdiocese of Indianapolis after they were all terminated from their jobs because they are in same-sex marriages. This month’s decision from the 7th Circuit in Demkovich v. St. Andrew the Apostle Parish, 19-2142, could change the trajectory of each of those cases.

The Becket Fund for Religious Liberty, which represented the Chicago Archdiocese in Demkovich and is representing the Indianapolis Archdiocese, has already filed a notice of supplemental authority in the Starkey case, arguing the 7th Circuit’s ruling confirms Starkey’s claims are barred by the First Amendment’s guarantee of religious liberty.

Luke Goodrich

As for whether the organization plans to file similar motions in the Fitzgerald and Payne-Elliott lawsuits: Luke Goodrich, vice president and senior counsel of The Becket Fund, advised, “watch the docket.”

Sandor Demkovich, a former organist at St. Andrew the Apostle Parish in Calumet City, Illinois, sued the parish and the Archdiocese of Chicago, claiming he was terminated from his job because he is gay, married to a man and is overweight. His discrimination claims were dismissed by the Northern Illinois District Court, Eastern Division, but the judge ruled the ministerial exception did not bar Demkovich’s hostile work environment allegations.

A divided panel of the 7th Circuit affirmed the district court’s ruling. The Archdiocese successfully petitioned for a rehearing en banc, and a majority of the Chicago appellate court reversed, finding the ministerial exception covers hostile work environment claims based on minister-on-minister harassment.

Daniel Blomberg, senior counsel at The Becket Fund, applauded the majority decision.

“Worship is sacred. That’s why worship leaders who select and perform elements of worship are ministers of the faith, conveying its teachings to the faithful,” Blomberg said in a press release. “That’s also why the church — not the state — gets to make sure that its music ministers are directing its congregation in a way that’s faithful to its beliefs.”

David Franklin, of counsel at Massey & Gail LLP who represented Demkovich before the 7th Circuit, did not respond to a request for comment.Who is a minister?

The attorneys representing the three fired educators in the lawsuits against the Indianapolis Archdiocese told The Indiana Lawyer the ruling in Demkovich will have no impact on their cases. Namely, the lawyers maintained the plaintiffs were not ministers and therefore are not subject to the ministerial exception.

“This ruling doesn’t affect Shelly’s case because her job duties were secular and so we don’t think she qualifies in any way as a minister,” Fitzgerald’s attorney, Bradley Girard, litigation counsel for Americans United for Separation of Church and State, said in a statement. “But it’s nevertheless troubling whenever religious freedom is misused to justify discrimination and avoid important civil rights protections.”

Kathleen Delaney

Kathleen DeLaney, managing partner of DeLaney & DeLaney LLC in Indianapolis, is representing Joshua Payne-Elliott and Lynn Starkey. She echoed that Demkovich does not control.

“Although we are disappointed that the Seventh Circuit en banc reversed the panel decision to hold that ministerial employees cannot bring hostile work environment claims against their employers, we don’t expect the decision to have much impact on either of our cases.”

Without mentioning Demkovich directly, Goodrich countered that the claims made by Starkey, Fitzgerald and Payne-Elliott are all barred.

While the Archdiocese disputes the plaintiffs’ arguments that they were not ministers, Goodrich regardless of their status, their contracts were not renewed for religious reasons because they violated the church’s teaching by entering into same-sex marriages.

Also, he said, their claims are barred under the First Amendment’s doctrine of free association as upheld in Boy Scouts of America v. Dale, 530 US 640 (2000). The Indianapolis Archdiocese, Goodrich said, cannot be forced to employ people who contradict the church’s “crystal clear message on human sexuality” that has been held for 2,000 years.

Finally, Goodrich argued, the plaintiffs’ claims are barred by the doctrine of entanglement. He said the former teachers’ requests to search for evidence that the church applied its teachings inconsistently and then have a jury weigh the gravity of the church’s teaching is a violation of the First Amendment’s prohibition on entanglement.

Litigation continues

The complaint filed by Fitzgerald — Michelle Fitzgerald v. Roncalli High School, Inc., Roman Catholic Archdiocese of Indianapolis, Inc., 1:19-cv-4291 — is pending in the Southern Indiana District Court. A settlement conference is scheduled for Aug. 16.

Payne-Elliott’s complaint — Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 49D01-1907-PL-27728 — was dismissed in May in Marion Superior Court. Special Judge Lance Hamner found the teacher’s complaint lacked subject matter jurisdiction and failed to state a claim upon which relief can be granted. Payne-Elliott has appealed to the Indiana Court of Appeals.

DeLaney highlighted the differences between Demkovich and Payne-Elliott’s lawsuit.

“In the Payne-Elliott case, we did not file a hostile work environment claim,” DeLaney said in an email. “Demkovich expressly stopped short of extending the ministerial exception to common law tort claims. In fact, in Demkovich all parties (including those parties represented by the Becket Fund) conceded that the ministerial exception does not apply to tort claims. Also, Demkovich’s focus on the employment relationship as the basis for the ministerial exception demonstrates that non-employers (such as the Archdiocese in the Payne-Elliott case) should not be able to use the ministerial exception as a defense.”

Starkey’s case — Lynn Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., and Roncalli High School, Inc., 1:19-cv-3153 — is continuing in the Southern Indiana District Court, but the Archdiocese has filed an interlocutory appeal of the denial of its motion for judgment on pleadings.

Currently, the briefing at the 7th Circuit has been suspended at the Archdiocese’s request while the district court rules on the church’s motion for summary judgment. Starkey has filed a motion to dismiss the appeal, arguing the Archdiocese’s turn to the 7th Circuit has a “jurisdictional defect” in that the same issues are being argued in both the motion for summary and the motion for judgment on the pleadings, which is the issue of the appeal.

“In the Starkey case, we believe that the Court will find that Starkey was not a ‘minister,’ but that issue has not been decided yet,” DeLaney said in an email. “By contrast, Demkovich involved minister-on-minister hostile work environment harassment. Demkovich says nothing about whether the ministerial exception should be applied to a high school guidance counselor. Additionally, Starkey’s state law tort claims against the Archdiocese will not be affected by Demkovich for the same reasons as in the Payne-Elliott case.”•

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