Firing Only Unmarried Pregnant Teachers Is Not Proper Enforcement of Catholic School's Morals Code

 In Crisitello v. St. Theresa School, (NJ App., Nov. 19, 2020), a New Jersey state appellate court reversed the dismissal of a pregnancy discrimination lawsuit brought against a Catholic school by one of its former teachers. The court summarized its holding:

In this action brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we are asked to determine whether a parochial school's knowledge of the pregnancy of an unmarried lay teacher, who started as a teacher's aide for toddlers, later taught art, and had no responsibility for religious instruction, can serve as the nondiscriminatory basis for the teacher's termination for violating the school's morals code, where the school never made any effort to determine whether any of its other employees have violated the school's prohibition against "immoral conduct" that is allegedly incorporated into each employees' terms of employment. We now hold that knowledge or mere observation of an employee's pregnancy alone is not a permissible basis to detect violations of the school's policy and terminate an employee.

Bridgewater Courier News reports on the decision.

Title VII Religious Exemption Does Not Protect Against Suit Over Sexual Orientation Discrimination

 In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (SD IN, Oct. 21,2020), an Indiana federal district court held that a former Catholic school guidance counselor who was fired because of her same-sex marriage may bring a discrimination claim under Title VII. The court rejected the school's contention that the religious institution exemption in Title VII applies. The court said in part:

Sexual orientation is a protected class under Title VII, and the language and legislative history of Title VII indicate Congress intended that religious institutions remain subject to Title VII's prohibition on discrimination on the basis of a protected class. To be sure, this case requires a careful balancing of religious liberty and an employee's right to be free from discrimination. The proper balance is to interpret Title VII's religious exemption to allow a religious employer to make hiring decisions in favor of coreligionists without facing claims of religious discrimination, but to allow a plaintiff to bring claims of other forms of Title VII discrimination. The religious exemption does not bar Starkey's Title VII claims of discrimination on the basis of sexual orientation, retaliation, and hostile work environment....

So, the question then becomes: Does a religious reason for an employment decision bar a plaintiff's Title VII claim when the religious reason also implicates another protected class?  The exemption under Section 702 should not be read to swallow Title VII's rules. It should be narrowly construed to avoid reducing Title VII's expansive rights and protections.

 Indiana Lawyer reports on the decision.

Expulsion of Catholic Elementary School Students Covered By Ecclesiastical Abstention Doctrine

In Doe v. Archdiocese of Galveston- Houston, (TX App., July 7, 2020), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of a suit against a Catholic elementary school claiming breach of contract, violations of the Texas Deceptive Trade Practices Act, fraud, intentional infliction of emotional distress, tortious interference, and conspiracy.  The school claimed that one of plaintiffs' sons, Bob, was seriously misbehaving, including hitting and kicking classmates. Bob's parents in turn suspected that Bob's teacher was bullying and verbally abusing Bob.  The parents hid a recording device on Bob to determine what was going on.  When the school discovered this, they expelled both of plaintiffs' sons. The court said in part:

Jane and Peter ... contend that their children were expelled for reasons that have nothing to do with religion, i.e., not because the children “did not want to attend mass, say their prayers, or genuflect when entering the Church.” Rather, they argue that Bob’s misbehavior and their advocacy on his behalf were secular in nature and therefore, their causes of action do not require a review or interpretation of the teachings of the Catholic church.

The jurisdictional evidence supplied by the school defendants and the Archdiocese tells a somewhat different story—one involving a breach of trust by Jane and Peter and breach of the rules broadly included in the school’s Family Handbook.... [T]he trial court did not err ... because the management of internal affairs, conformity of members to the moral standards required of them, and, in the context of an educational faith-based institution, the expulsion or retention of students are considered ecclesiastical matters to which the ecclesiastical abstention doctrine applies.

Supreme Court Interprets "Ministerial Exception" To Employment Discrimination Claims Broadly

In Our Lady of Guadalupe School v. Morrissey-Berru, (Sup. Ct., July 8, 2020), the U.S. Supreme Court in a 7-2 decision held that two elementary school teachers in separate Catholic schools, are covered by the "ministerial exception" so that they cannot sue for employment discrimination. Justice Alito's majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch and Kavanaugh deferred in significant part to churches' own definitions of their employees:

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important. 

Comparing the teachers here with the one in the Supreme Court's prior ministerial exemption decision in Hosanna-Tabor, the Court said in part:

When we apply this understanding of the Religion Clauses to the cases now before us, it is apparent that Morrissey-Berru and Biel qualify for the exemption.... There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities.... Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important.

Justice Thomas, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I write separately, however, to reiterate my view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is “ministerial.”

Justice Sotomayor, joined by Justice Ginsburg, dissented, saying in part:

In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school teachers of their legal protections, I respectfully dissent....

[T]he Court’s apparent deference here threatens to make nearly anyone whom the schools might hire “ministers” unprotected from discrimination in the hiring process. That cannot be right....

NBC News reports on the decision.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP's plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion.... [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same....

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

Catholic School Sues For More Adequate State Bus Transportation

On Friday, a pre-K through 8th grade Catholic school in Madison, Wisconsin announced that it has filed suit against the Madison, Wisconsin Metropolitan School District to obtain state-funded bus transportation that meets its current class starting time.  The complaint (full text) in St. Maria Goretti Congregation v. Madison Metropolitan School District, (WI Cir. Ct., filed 5/15/2020), alleges in part:

Chapter 121 of the Wisconsin Statutes requires school districts ... to provide and fund transportation services to both public and private-school students in their boundaries, with “reasonable uniformity” in the transportation offered.... [T]he District provides busing to its own students that drops them off reasonably before the start of their school day. Yet, despite its plain statutory obligations, the District has adamantly refused to provide similar busing for the upcoming 2020–21 term to the students of St. Maria Goretti School.... Instead, the District has repeatedly informed St. Maria Goretti that it would only provide and fund busing that drops off its students 70 minutes after its current start time. So, the District is forcing St. Maria Goretti to substantially change its start and end times to receive busing, devastating almost every aspect of the school, including its Catholic mission; or to accept manifestly inadequate services that drops off its students well after the beginning of the school day; or to pay for busing services itself, despite the substantial burdens this would impose. This unequal, unjust treatment violates Chapter 121.

The school also filed a 47-page brief (full text) in support of its motion for a temporary injunction or writ of mandamus.

Supreme Court Oral Arguments In Ministerial Exception Cases Live Today

At 11:00 AM today, the U.S. Supreme Court will hear oral arguments in Our Lady of Guadalupe School v. Morrissey-Berru (SCOTUSblog case page), and St. James School v. Biel (SCOTUSblog case page). In the cases, the U.S. 9th Circuit Court of Appeals held that the Catholic school teacher in each of the cases was not prevented from bringing an employment discrimination lawsuit. The 9th Circuit held that they are not "ministers" for purposes of the "ministerial exception" doctrine.  The oral arguments, which will be held via teleconference may be heard on C-Span live at this link.   Los Angeles Times reports on the cases.

UPDATE: Here is the transcript of the full arguments in the cases. Reuters reports on the oral arguments.

Canadian Province's School Funding of Catholic School Upheld

In Government of Saskatchewan v. Good Spirit School Division No. 204, (SK Ct. App., March 25, 2020), the Saskatchewan (Canada) Court of Appeal in a 133-page opinion, upheld the province's funding for non-Catholic students enrolled in a government-funded Catholic school. Global News reports on the decision.

Catholic School Principal's Retaliatory Discharge Claim Dismissed

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff's firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach.... Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address ... whether claims for common law retaliatory discharge are available to contractual employees.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:

All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....

The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 

 Wisconsin State Journal, reporting on the case, explains:

Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.

Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

Catholic Schools Can Challenge Athletic Competition Rule Change

The Ohio Supreme Court in a 5-2 decision in Ohio High School Athletic Association v. Ruehlman, (OH Sup. Ct., July 16, 2019), allowed a trial court judge to move ahead with a challenge brought by Catholic high schools to a rule change by the Ohio High School Athletic Association.  The rule change which relates to the division to which a school is assigned for post-season competition is designed to adjust for the purported advantage that private schools have by reason of their ability to enroll students from wider geographic areas than public schools.  A Catholic school and the athletic conference to which it belongs sought to enjoin application of the new rule. The Ohio High School Athletic Association here sought unsuccessfully to prevent the suit from moving forward.  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

9th Circuit, Over Dissents, Denies En Banc Rehearing In Ministerial Exception Case

In Biel v. St. James School, (9th Cir., June 25, 2019), the U.S. 9th Circuit Court of Appeals denied a rehearing en banc in an ADA case brought by a 5th grade teacher at a Catholic elementary school. The panel, in a 2-1 decision, held that the teacher is not a "minister" for purposes of the ministerial exception doctrine. (See prior posting.)  Nine judges dissented from the denial of an en banc  rehearing in a 24-page opinion written by Judge Nelson, saying in part:

By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment’s “ministerial exception” and splits from the consensus of our sister circuits that the employee’s ministerial function should be the key focus.

[Thanks to Jeff Pasek for the lead.] 

Supreme Court Asks SG For Views On Catholic Diocese Pension Case

The U.S. Supreme Court today called for the Solicitor General to file a brief expressing the views of the United States in Archdiocese of San Juan v. Feliciano, (Docket No. 18-921). (Order List.)   The case poses the question of whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees. The petition describes the question presented as: "Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability." Here is the SCOTUSblog case page for the case linking to all the filings in the case.

During LGBTQ Pride Month, Vatican Issues Document On Gender Theory In Education

The Vatican's Congregation for Catholic Education yesterday issued a 32-page document titled Male and Female He Created Them: Towards a Path of Dialogue on the Question of Gender Theory in Education. (Full text). The document says in part:

There is a need to reaffrm the metaphysical roots of sexual difference, as an anthropological refutation of attempts to negate the male-female duality of human nature, from which the family is generated. The denial of this duality not only erases the vision of human beings as the fruit of an act of creation but creates the idea of the human person as a sort of abstraction who “chooses for himself what his nature is to be. Man and woman in their created state as complementary versions of what it means to be human are disputed. But if there is no pre-ordained duality of man and woman in creation, then neither is the family any longer a reality established by creation. Likewise, the child has lost the place he had occupied hitherto and the dignity pertaining to him”.

According to Vatican News:

The new document is intended as an instrument to help guide Catholic contributions to the ongoing debate about human sexuality, and to address the challenges that emerge from gender ideology.

As reported by CBS News,  the document, issued during LGBTQ Pride Month, was criticized by LGBTQ advocacy groups.

Catholic School Challenges City's Anti-Discrimination Ordinance

A small Catholic college preparatory school in South Euclid, Ohio has filed suit in federal district court challenging the city's recently enacted anti-discrimination ordinance.  The complaint (full text) in The Lyceum v. City of South Euclid, Ohio, (ND OH, filed 4/3/2019), challenges the lack of any exemption for religious organizations in the ordinance that bars employment, housing and public accommodation discrimination on the basis of  religion, creed, marital status, gender identity or expression, or sexual orientation, among other categories. It also prohibits statements indication that individuals are unwelcome on these bases. The suit alleges that the ordinance violates the school's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit. Cleveland.com reports on the case.

West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Buffalo Diocese Sued By Sex Abuse Victim For $300 Million

WGRZ News reported Monday that the Catholic Diocese of Buffalo, New York has been sued for $300 million by a woman who says that she was sexually abused between 1978 and 1981 by the priest who was her high school science teacher.  The accused abuser, Rev. Mark Andrzejczuk, who died in 2011 was a member of a Franciscan order which is also named as a defendant.  New York's recently passed Child Victims Act opened the way for Gail Holler-Kennedy to file the suit.

Cert Filed In Puerto Rico Catholic School Pension Case

A petition for certiorari (full text) was filed last month in Roman Catholic Archdiocese of San Juan Puerto Rico v. Feliciano (filed 1/14/2019). At issue is whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees,The petition describes the question presented as:

Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability. 

The petition contains a translation of the opinion below rendered by the Puerto Rico Supreme Court.