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.
33 thoughts on “Teacher At Catholic School Allegedly Fired For Using IVF As “Grave, Immoral” Act”
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Children’s gifts have gotten extremely expensive.
There are parents in that town with the fired teacher. They have kids approaching Kindergarten or First Grade age. The kids are the result of some help from science. Decisions, decisions…..
bettykath: “Perhaps the church’s solution is for couple to adopt the child of a woman who is prevented from having an abortion. ”
LOL, good catch. A cursory search of Catholic Charities turns up a roster of 48 affiliated organizations that will arrange an adoption. There are probably more but I stopped looking after I found a general roster. I’m sure they do it for free and in a non-discriminatory manner. Sure of it.
Writing letters to your congress people probably won’t do any good. Just refuse to recognize the Vatican. What is the Constitution? Am I confused about separation of church and state?
Talkin Dog -the one time I saw Roberts talk I could tell he was a bad dog. He made such comments as-“I don’t remember the last time I read a law review article” and “There is no place for televised media in the SCOTUS”.
Interestingly, in Orthodox Judaism, although there is the strict prohibition against expelling semen for no reason i.e. masturbation or “pulling out”, this would fall in to the class of procreation and would not be prohibited. In fact there is a positive commandment to procreate according to the Old Testament (“be fruitful and multiply”) and many jewish Orthodox couples do use fertility treatments.
We all need to write letters to our Congressmen and women and Senators to pass a law which specifically states that Section 5 of the Fourteenth Amendment authorizes all remedial provisions of the Equal Opportunity statutes, Title VII, et al. This will take that commerce clause or sinter Klaus nonsense away from Justice Roberts and he will have to uphold the will of the Framers of the 14th Amendment in post civil war years who roundly stated that all citizens were equal, there were no longer oligarchs, or slave owners, or inferior people. If your Congressmen women are too Catholic to stand up to the likes of that fat head Cardinal George or Justice Roberts then vote the Congressmen or women out of office.
What a sad organization the Roman Catholic Church becomes when seen in the bright light of day… I don’t know how any person with a moral compass can bring themselves to belong to such a hateful and hatefilled organization, and I come from a totally Catholic education and a family that as far back as we can trace was always Catholic.
So this is wrong but pedophilia is not?
JC, my earlier point exactly
Plus I’d like to know the churches stance on the old testement rule that being “barren” was in fact a curse from God which you deserved.
One thing that (among many), as a recent convert to Catholicism, that confounds me is the Church’s approach to issues of this nature.
In RCIA we were taught that birth control was bad basically because it took control of whether or not a couple gets pregnant out of God’s hands. At the sametime our pre-marital retreat tried to teach us about Natural Family Planning.
On one hand we are not allowed to use a method of birth control because it takes the decision out of God’s control (but I thought God was always in control?) while on the other hand they try to teach us a method that is supposedly more effective than birth control at controlling when a couple gets pregnant.
So, if we’re not supposed to take birth control to prevent an unwanted pregnancy because we take God out of the equation, why is it okay to use NFP to take God out of that same equation?
Same context applies in this situation. They tell us they want us to multiply and be fruitful (let’s face it The Church wants parishioners to have kids so they have a fan base in the future) but then will tell us its a grave sin to try to get pregnant with a little help.
Legally, I can’t comment on the case studies. I just think its flat against what America stands for to be able to fire someone for using a medically accepted practice to improve their chances of having a child.
I just want to know the Church’s answer on ‘Which is it?’ Kids, kids, kids (no abortion, no birth control) or No kids (no ivf)?
@AY – Say what…… So if this is the case then what about viagra…..
I think the only permissible purpose for Viagra, is for nursing home patients. It keeps them from rolling out of bed…
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