The fight over a teacher at Cathedral High School who was fired for being in a same-sex marriage is highlighting a split between conservative and progressive members of the Catholic faith with several members of the Indiana legal community — including a former 7th Circuit Court of Appeals Judge and an Indiana attorney prominent in Republican politics — now adding their voices in opposition to the Archdiocese of Indianapolis.
Attorneys and law professors have filed a series of amicus briefs with the Indiana Supreme Court in State of Indiana on the relation of Roman Catholic Archdiocese Indianapolis, Inc. v. The Marion County Superior court and The Honorable Stephen R. Heimann, as Special Judge thereof, 49D01-1907-PL-27728. They are countering the archdiocese’s appeal to the Indiana Justices that civil courts have no jurisdiction over this matter of ecclesiastical government.
The case before the Indiana Supreme Court springs from the lawsuit Joshua Payne-Elliott filed against the archdiocese after Cathedral did not renew his teaching contract in June 2019. In Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 49D01-1907-PL-027728, the teacher asserted the archdiocese pressured Cathedral to fire him and, therefore, tortiously interfered with his employment and teaching contract.
Both parties agreed to have Bartholomew Circuit Senior Judge Stephen Heimann appointed to preside over the case. The archdiocese filed motions to have the case dismissed and for an interlocutory appeal, but both were denied.
The archdiocese did comply with the discovery order, producing the documents Payne-Elliott had requested. However, on Aug. 7, the archdiocese filed a motion for Heimann to recuse him and then ten days later on Aug. 17, filed a verified petition for writ of mandamus and writ of prohibition with the Indiana Supreme Court.
“This lawsuit intrudes directly on a matter of ecclesiastical government, and the trial judge was under a clear, mandatory duty to refrain from exercising jurisdiction and dismiss the case. … The question of whether the archbishop can ‘rightfully declare who is a Catholic’ was settled long ago; it is ‘purely [a question] of church government and discipline, and must be determined by the proper ecclesiastical authorities,” the archdiocese asserted, citing Dwenger v. Geary, 14 N.E. 903 (Ind. 1888) in its brief to the Supreme Court.
The Indiana Attorney General and the U.S. Department of Justice have submitted amicus briefs supporting the archdiocese’s position.
Advocates for Payne-Elliott include 47 lay men and women who identify themselves as being faithful and practicing members of the Roman Catholic Church. They are being represented pro bono by retired 7th Circuit Court of Appeals Judge John Tinder and Barnes & Thornburg partners Peter Rusthoven, former associate counsel to President Ronald Reagan, and John Maley, along with attorney Jim Riley of New York.
Among the arguments in their brief, the lay Catholics hold that discriminating against LGBTQ individuals is unjust from a religious standpoint and unlawful from a civil standpoint. Also, they assert the church’s ultimately authority, Pope Francis I, has encouraged church members to welcome LGBTQ individuals.
The lay Catholics described the archbishop as a “traditionalist,” one of the clergy and laity who oppose any consideration of change in approach to LGBTQ individuals. However, they also point to differing views, noting Jesuit Priest James Martin, speaking with the authority of Pope and the Vatican, says Catechism calls upon Catholics to treat gays and lesbians with “respect, compassion, and sensitivity.”
In their brief, the Lay Catholics write, “The archdiocese’s actions in demanding the termination from employment of an outstanding teacher in an independent Catholic high school because he is gay and in a civil same-sex marriage contradicts the hierarchical teachings the Pope has authorized. Discovery is the only avenue available to assess whether the dismissal of a high-performing world language and social studies teacher, for the sole reason that he is gay and has married civilly, was mandated by Church doctrine.”
Another brief was filed by Indiana appellate practitioners and led by Indiana University Robert H. McKinney School of Law professor Joel Schumm. They conclude that respect for the procedural rules of the court and the rule amendment process mandates a decision denying the relief sought by the archdiocese.
Also, Indiana University Maurer School of Law professors Aviva Orenstein and Luis Fuentes-Rohwer, represented pro bono by attorney Tyler Helmond of Voyles, Vaiana, Lukemeyer, Baldwin and Webb, filed a brief. They argue the archdiocese is seeking to improperly invoke this emergency mechanism which is designed to be used in the rarest of cases.
“The dispute between Mr. Payne-Elliott and the archdiocese should be resolved through the normal process,” the IU Maurer professors argue. “The case involves disputed factual determinations on a difficult legal question, which despite the relator’s arguments to the contrary, do not center on ‘who is a Catholic,’ but rather pits questions of the Church’s authority in employment matters against the employment and basic civil rights of Mr. Payne-Elliott.”
In Payne-Elliott’s brief in opposition to the writ of mandamus, the plaintiff provides details of the October 2019 settlement conference that nearly resolved the case. However, according to the brief, the archdiocese backed out at the last minute.
Heimann met with the parties and offered a proposal that conditioned the liability on the outcome of Brebeuf Jesuit’s pending appeal of the archdiocese decree to the Vatican’s Congregation for Catholic Education in Rome.
Payne-Elliott’s husband teaches at Brebeuf. The archdiocese stripped the high school of its Catholic status after it refused to terminate Payne-Elliott’s teaching contract. In response, the school appealed the archdiocese’s decision to the Vatican.
Under Heimann’s proposal, if the archdiocese won the appeal in Rome, then the archdiocese would have no liability to Payne-Elliott and the case would be dismissed with prejudice. If Brebeuf Jesuit won the pending appeal, the liability of the archdiocese to Payne-Elliott would be established as a legal matter and the parties would then negotiate monetary damages to the plaintiff.
Initially, the parties agreed to the proposed settlement and they began negotiating the damages, according to Payne-Elliott’s opposition brief. However, 90 minutes later, the archdiocese, which was being represented at the conference by Gina Fleming, the superintendent of Catholic Schools for the archdiocese, changed its position and rejected the settlement structure.
Instead, the archdiocese offered Payne-Elliott $10,000 to settle the case. Payne-Elliott rejected the offer.
Plaintiff’s counsel noted in its brief that it had already been working on a draft of the settlement agreement when the archdiocese reversed course.
“Plaintiff’s counsel had also been working to draft non-monetary terms such as a joint announcement, apology from the Archdiocese, and confidentiality, in addition to the amount of monetary damages,” the opposition motion stated. “This development led Plaintiff’s counsel to question the good faith of the archdiocese in the negotiation.”