Emily Herx, a teacher at the St. Vincent de Paul school in Fort Wayne, Indiana, has sued the school and the Catholic Diocese, for allegedly firing her for using in vitro fertilization (IVF) to try to get pregnant. Herx (shown here with her husband) says that the local pastor told her that she was a “grave, immoral sinner” for using the process. It is another example of the growing tension between discrimination laws and religious freedom, the subject of a past column. The case could prove quite important in defining the outer reaches of the “ministerial exception” to anti-discrimination laws.
Herx, 31, had excellent performance evaluations for eight years as a language arts teacher.
In January, the Supreme Court ruled that religious workers can’t sue their employers for job discrimination because of the “ministerial exception.” The Court however left vague the scope of the exception, particularly who was deemed a religious employee.
The case was Hosanna-Tabor Church v. Equal Employment Opportunity Commission. That case involved a parochial school teacher in Redford, Mich., who was an ordained minister and performed “important religious functions.” However, most of their work was non-religious. Chief Justice John Roberts wrote for a unanimous Court (with two concurrences) saying that the exception applied.
I previously wrote a paper supporting such an exception in a book with Doug Laycock who argued the Hosanna-Tabor Church case: Jonathan Turley, “An Unholy Union: Same-Sex Marriage and the Use of Governmental Programs to Penalize Religious Groups with Unpopular Practices,” in Douglas Laycock, Jr., et al., eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Lanham, MD: Rowman & Littlefield Publishers, Inc., 2008). Notably, Laycock publicly said that he did not believe that the ruling would support many teachers who did not teach religious subjects: “If he teaches theology, he’s covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered.”
Roberts however rejected the argument that the exception would only apply to those who performed “exclusively religious functions.” He held that “the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”
In a footnote, Roberts emphasized that this was not a sweeping exception and that the exception created “a defense on the merits.” As such, “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”
At the time, Justice Clarence Thomas warned that the Court was leaving the matter too ambiguous and that it was dangerous for the court to draw lines on the exception as opposed to a bright line rule:
Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular understanding.”
This would be the perfect case to remove much of the ambiguity left by the decision. Here you have a person who was not a religion teacher and was not ordained. She taught only English. Under Laycock’s approach, she would fall outside of the exception. However, this still leaves the question of a religious organization’s ability to dictate compliance with the moral tenets that define the organization.
Pope Benedict XVI has spoken against Catholics using in-vitro fertilization or other forms of artificial procreation as against moral teachings and the institution of marriage.