7th Circuit Hears Oral Arguments On Several Milwaukee Archdiocese Bankruptcy Issues

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases relating to the Archdiocese of Milwaukee. The first is Official Committee of Unsecured Creditors v. Listecki (audio of oral argument). It involves a number of complex legal issues growing out of a trial court decision that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the Archdiocese's bankruptcy reorganization. (See prior posting.) Among other issues is the question of whether RFRA can be raised as a defense to action taken by a Creditors' Committee in bankruptcy.  The case on appeal also involves the refusal of the trial court judge to recuse himself in the case. (See prior posting.)

The second case is Doe v. Archdiocese of Milwaukee (audio of oral argument). It involves the question of whether the bankruptcy court was correct in dismissing the claim of a sexual abuse victim who had signed a settlement agreement with the Archdiocese after mediation.  The victim contends that he was fraudulently induced to sign the agreement.  Milwaukee Journal Sentinel reports on yesterday's arguments.

New Teacher Contracts In Cincinnati Archdiocese Create Controversy

CNN reports today that controversy surrounds the new teacher contracts that must be signed by all teachers in the schools of the Archdiocese of Cincinnati. Going beyond the general language of the past that requires teachers to adhere to Catholic doctrine, the new contracts spell out some specifics. They bar cohabitation or sex outside of marriage, using in-vitro fertilization, living a gay "lifestyle," or publicly supporting any of these.  The new contracts also add the title "minister" to all teachers, regardless of subjects taught-- presumably to allow the Archdiocese to invoke the ministerial exception doctrine if sued for employment discrimination. Cincinnati Catholic Schools Superintendent Dr. Jim Rigg  says the contracts do not add any new requirements; they just explain in clear language some of the principles of the Church. Teacher Roger Rosen commented:

Jesus always acted out of love. Never out of fear, and we're all being asked to act out of fear because the lawyers have taken over.

Court Lets Fired Catholic School Administrator Continue Discrimination Suit

LifeSite News reports that a Washington state trial court judge last week refused to dismiss an employment discrimination lawsuit against Seattle's Eastside Catholic High School filed by Mark Zmuda, its former vice principal. Zmuda was forced to resign after he married his same-sex partner. Zmuda claims that the school violated its own anti-discrimination policy, while the school says Zmuda breached the morality clause in his contract that requires him to publicly uphold the teachings of the Catholic faith.  The school had given Zmuda the option to divorce his spouse and enter a civil commitment ceremony if he wanted to keep his position.

The court rejected the school's argument that the 1st Amendment's freedom of religion protections deprived the court of jurisdiction over the dispute.  King County Superior Court Judge Catherine Shaffer wrote in part: "The Federal and Supreme Courts have made it clear that an employee can sue regardless of ministerial doctrine." Zmuda's suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. (See prior related posting.)

New Washington State Supreme Court Justice Has Extensive Religious Background

Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.  While the media (Seattle Times article) has focused on the fact that Yu is the first openly gay, and first Asian-American justice on the Washington Supreme Court, less attention has been given to her academic training in theology and her work experience prior to law school in the Catholic Church. Yu received a bachelor's degree in religious studies from Dominican University in River Forest, Ill., in 1979.  She then went to work for the Office of Peace and Justice of the Chicago Catholic Archdiocese, eventually becoming director of the office.  She received a master's degree in theology from Loyola University in 1989, and moved to Washington state to work at the Washington state Catholic Bishop's Conference. However in 1990 she enrolled in Notre Dame law school, also working as an assistant rector in an undergraduate women's dormitory. (Biography from Wikipedia, Equal Justice Newsletter).

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

Court OK's Sale of Mausoleum Space and Headstone Inscriptions By NJ Catholic Cemeteries

In Monument Builders of New Jersey v. Roman Catholic Archdiocese of Newark, (NJ Super., April 29, 2014), a New Jersey trial court upheld the right of the Newark Catholic Archdiocese to sell monument inscription rights and burial rights in mausoleums at Catholic cemeteries. Commercial monument builders argued that the Archdiocese has engaged in unfair competition with them, and that the sale of monuments by the Archdiocese is ultra vires and against public policy. (See prior posting.) The court held first that the state's statutory ban on cemeteries selling monuments or mausoleums is inapplicable to religiously owned cemeteries that restrict burial to members of the religious faith and their families.  Secondly, the court concluded that if the Archdiocese is statutorily authorized to engage in its monument and mausoleum programs, its alleged competitive advantage is irrelevant.  The court went on to conclude that the state's religious corporation law grants the Archdiocese the authority to acquire and install mausoleums and monuments and to sell inscription rights. Newark Star-Ledger reports on the decision.

White House Statement On Canonization of Popes John XXIII and John Paul II

Yesterday the White House issued a statement (full text) from President Obama celebrating Sunday's canonization of Pope John XXIII and Pope John Paul II. The statement reads in part:

We celebrate these Saints and the leadership of His Holiness Pope Francis, and we look forward to continuing to work with Pope Francis and Catholics around the world to advance peace and justice for all people.

U.S. Catholic Bishops Issue 2013 Report On Clergy Abuse Allegations and Costs

On March 28, the U.S. Conference of Catholic Bishops released its most recent report on the Church's ongoing efforts to deal with clergy sexual abuse of minors.  Its 2013 Annual Report on the Implementation of the “Charter for the Protection of Children and Young People" discloses that in 2013 there were 370 new credible allegations of sexual abuse of a minor made against 290 priests or deacons. Only nine of the allegations involved victims who were under 18 in 2013. The rest involved adults who claim abuse in the past. 80% of the victims were male while 20% were female.  Five of the 370 allegations involved only child pornography. 69% of the allegations involved conduct that occurred or began between 1960 and 1984. During 2013, dioceses and eparchies paid out $108.9 million as follows: $61 million in settlements; $6 million in therapy for victims; $10.4 million in support for offenders; $28.9 million in attorneys' fees; and $2.4 million in other costs. In the past ten years, costs related to claims have totaled $109 million. Insurance covered 21% of the amounts paid out in 2013. The report deals separately with abuse complaints directed to clerical and mixed religious institutes where 2013 saw 94 new credible allegations of abuse. Catholic World News covers the report. [Thanks to Pewsitter.com for the lead.]

Hearing This Week On Injunction Against New Jersey Archdiocese Selling Headstone and Mausoleum Rights

Yesterday's Newark Star Ledger reports that a hearing is scheduled April 1 in a New Jersey Superior Court on an action by three cemetery monument companies against the Roman Catholic Archdiocese of Newark seeking to enjoin the Archdiocese from selling monuments and private mausoleums at Catholic cemeteries.  The complaint (full text) in Monument Builders of New Jersey, Inc. v. Roman Catholic Archdiocese of Newark, (NJ Super Ct), filed last  year argues that the Archdiocese has engaged in unfair competition with private monument companies:

The sale of the monuments and the private mausoleums is in direct competition with Plaintiff entities and because of its tax-exempt status and the close contact with the family of the deceased before, at the time of, and after the burial give the Archdiocese preferred economic position and ease of access to prospective customers in promoting sales.

The complaint also alleges that the sale of monuments by the Archdiocese is ultra vires and against public policy.

The Archdiocese's answer (full text) filed Sept. 4, 2013, says that the Archdiocese is not selling monuments and mausoleums. Rather it is selling inscription rights to monuments and burial rights in mausoleums that the Archdiocese owns.  This arrangement makes it responsible for repairs when there is damage to headstones of mausoleums.  The Archdiocese admits that it is subject to New Jersey's 7% use tax on the monuments and mausoleums it purchases, even though apparently it has not yet paid the tax. (Deposition.)

New Lawsuit Challenging Contraceptive Mandate Filed By Multi-employer Catholic Organization and Others

Catholic News Service and a press release from Catholic Benefits Association report on the latest lawsuit that has been filed to challenge the Affordable Care Act contraceptive coverage mandate. Plaintiffs in the lawsuit filed yesterday in federal court in the Western District of Oklahoma are Catholic Benefits Association and its captive insurance company, the Archdiocese of Oklahoma City and its Catholic Charities, All Saints Catholic School in Oklahoma, Archbishop William E. Lori and the Archdiocese of Baltimore, Cathedral Foundation in Baltimore, Villa St. Francis Catholic Care Center in Kansas City, KS, and Good Will Publishers in North Carolina.

Catholic Benefits Association is a recently-formed organization comprised of nearly 200 Catholic employers and 1000 parishes from around the United States.  The organization makes self-insurance plans with back-up stop loss insurance (with coverage consistent with Catholic values) available to members, and "provides a cost-effective strategy for Catholic employers seeking protection from the HHS contraception, abortion-inducing drugs or devices, sterilization, or related counseling ... Mandate and other similar state or federal mandates." (CBA FAQs).

With the U.S. Supreme Court about to hear arguments in the Hobby Lobby case on whether corporations can assert free exercise rights, it is interesting to note Catholic Benefits Association's criteria for becoming an employer member:

For-profit employers can become CBA members if (i) Catholics (or trusts or other entities wholly controlled by Catholic) own 51 percent or more of employer; (ii) 51 percent or more of the members of the employer’s governing body, if any, is comprised of Catholics; and (iii) either the employer’s owners or governing body has adopted a written policy stating that the employer is committed to providing no benefits to the employer’s employees or independent contractors inconsistent with Catholic values.

UPDATE: The complaint (full text) in Catholic Benefits Association v. Sebelius,(WD OK, filed 3/12/2014) is now available.

Fired Gay Catholic School Vice-Principal Sues

Last Friday, a lawsuit was filed in state court in Seattle, Washington by a former Catholic high school vice-principal Mark Zmuda who was fired after he married his same-sex partner last December.  According to The Guardian, the suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference.  The Guardian reports:

Zmuda does not dispute that he signed an employment contract that required him to uphold Catholic teachings. However, his complaint claims that the school misrepresented its employment environment as being one of inclusion and anti-discrimination both on its website and in its employee handbook.

The school's president, Sister Mary Tracey knew earlier on that Zmuda is gay. He complied with her request not to bring his partner to school events. After the marriage, Sister Mary told Zmuda that if he would divorce his husband, the school would pay the costs of a commitment ceremony in place of a wedding, and would allow him to keep his job. The school is seeking dismissal of the suit on the basis of its 1st Amendment right to make its own decisions on matters of faith and doctrine.

Affidavit Does Not Establish Applicability of Ministerial Exception Doctrine

Hough v. Roman Catholic Diocese of Erie, (WD PA, March 4, 2014), is an Age Discrimination In Employment suit brought by three former Catholic parochial school teachers who were not hired into a consolidated Catholic school system created when their school closed. The Diocese moved for summary judgment claiming that the "ministerial exception" doctrine precludes plaintiffs' lawsuit.  The only evidence that plaintiffs qualify as "ministers" for purposes of the exception were affidavits from the diocese's Vicar for Education stating that all parochial school teachers are considered to be ministers of the faith-- instruction in religious truth and values is infused in all parts of the curriculum. The Pennsylvania federal district court denied defendants' the motion for summary judgment, saying in part:

Although the Supreme Court refused to provide a bright line test for a determination of when someone is accorded ministerial status, Defendants’ argument – that all teachers are considered to be ministers by Defendants – was not enough, in and of itself, for the high court in Hosanna-Tabor.

Ukrainian Religious Organizations Impacted By Russian Actions

Not surprisingly, the rapidly developing conflict between Ukraine and Russia is impacting Ukraine's religious institutions.  The Orthodox Church-- the dominant religion in Ukraine-- is split between three factions. These are the pro- Russian Ukrainian Orthodox Church (Moscow Patriarchate); the Ukrainian Orthodox Church (Kiev Patriarchate) which dominates Kiev and the central region of the country; and the Ukrainian Autocephalous Orthodox Church whose membership is mainly in the western half of Ukraine. According to The Economnist, this past Monday Moscow moved to assure its control over the Ukrainian Church that is part of the Moscow Patriarchate:

On Monday, the ruling synod of the UOC met and named a "locum tenens" to run the institution's headquarters in Kiev because of the incapacity of its elderly leader, Metropolitan Volodymyr.... The synod said it had ascertained that Metropolitan Volodymyr was definitely too ill to carry out his duties. The new acting leader, a certain Metropolitan Onufry from the southwest of Ukraine, certainly looks, from his biography, like a man who will remain in step with Moscow....

However the synod also accepted a proposal from the Kiev Patriarchate for dialogue.  Some think this is an attempt to continue to be a player should the Ukrainian government move toward creating a single national church.

Meanwhile, as reported by RIA Novosti, on Wednesday in the northern Ukrainian city of Sumy, a dozen backers of the Kiev Patriarchate attempted to seize a UOC-MP cathedral and threatened to set it on fire.  Other religious groups are also responding.  Yesterday's Catholic Sun reports that the Catholic bishop whose diocese includes Crimea issued a statement calling for "all believers and nonbelievers to refrain from extremism, and not to allow the fraternal bond between people living in Crimea to break."

New York Jewish Week this week reports on the uncertain situation of the Jewish community in Ukraine. There have been a few anti-Semitic incidents, including the fire bombing of a synagogue.  Several outside agencies are providing aid, including funds for increased security, for the Jewish community.

Protester At Center of SCOTUS Decision On Military Base Protests Was Catholic Worker Movement Adherent

Yesterday the U.S. Supreme Court in United States v. Apel, (US Sup. Ct., Feb. 26, 2014), held that a federal statute which makes it a crime to re-enter a military installation after the base commander orders a person not to do so applies to a protest area at Vandenberg Air Force Base that is open to the public.  The Court describes John Dennis Apel, the protester involved in the case, as an antiwar activist. It says nothing about the religious basis for Apel's protests found in his involvement in the Catholic Worker Movement. Here is some insight into Apel's religious beliefs from a Dec. 2013 article reprinted on the Pacific Life Community's website:

[Apel] and a dedicated core of volunteers — including his wife of 15 years, Tensie — provide food and clothes to the community’s poor. They run a summer children’s program and a weekly free medical clinic.

The couple are devotees of the Catholic Worker movement, a social reform cause committed to social justice, pacifism and voluntary poverty that they’ve dedicated most of their adult lives to promoting.

They receive no salary — the couple and their two young children survive on his Social Security income, as well as donations and the charity of others.

For more than a dozen years, as part of Mr. Apel’s deep peace-oriented belief system, he has regularly stood outside the gates of Vandenberg, protesting what he believes is an immoral military mission. He has been arrested 15 times, and received “ban and bar” citations that restrict his ability to protest near the classified military installation.

Court Says Parents Who Lost Custody of Child Have Only Limited Control Over Child's Religious Exposure

In In re T.K, (OH Ct.. App., Feb. 19, 2014), an Ohio appeals court held that when legal custody of a child is given to the child's grandparents, there are limits on the extent to which the child's mother can dictate the boy's religious upbringing.  The boy was originally placed with the grandparents when he tested positive for marijuana at birth, and custody was made permanent 9 months later with the parents' consent.  However the boy's mother objected to the grandparents raising her son in their Catholic faith. An Ohio statute (RC 2151.353(A)(3)(c)) provides that when legal custody is transferred, parents retain the residual "privilege to determine the child's religious affiliation."

The court of appeals upheld the trial court's implementation of the mother's preference by an order providing that  "the grandparents not engage the child in church activities or rituals designed for ... membership, including those required for membership into the Catholic Church."  The mother had wanted a broader order prohibiting the grandparents from in any way, teaching, indoctrinating, or actively exposing the child to any religion, Catholic or otherwise. The court however focused on the statute's use of the term "affiliation" and agreed with the trial court that exposure to religion is not tantamount to affiliation.

Catholic Bishops In Various Countries At Odds Over Anti-Gay Laws

Religion News Service reported yesterday on "unusually stark and public fissures" among Catholic bishops in various countries over whether to support or oppose harsh anti-gay laws being enacted or revived in some countries of Africa, Asia and elsewhere. For example, after Nigerian President Goodluck Jonathan recently signed new anti-gay legislation, the Nigerian Catholic hierarchy  praised the president's "courageous and wise decision."  However, a few days later an editorial in a newspaper run jointly by the bishops of South Africa, Botswana and Swaziland, took a very different view, calling on the Catholic Church in Africa "to stand with the powerless" and "sound the alarm at the advance throughout Africa of draconian legislation aimed at criminalizing homosexuals." Similar disagreements can be seen among bishops in Europe and Asia.

2 Minnesota Catholic Dioceses Sued In Demand For Files of Abusive Priests

In a suit filed in a Minnesota state trial court on Wednesday against two Catholic dioceses, plaintiff who claims to have been abused as a 13-year old boy by Catholic priest James Vincent Fitzgerald is seeking release by the dioceses of the complete files of priests who have been credibly accused of abuse. As reported by Forum News Service, the alleged victim, identified only as "Doe 30", has sued the Diocese of Duluth and the Diocese of New Ulm saying that the abuse occurred in 1976. This is the third suit by various victims against the Diocese of Duluth demanding release of files.  So far the diocese has only released the names (along with basic biographical data) of accused priests. Fitzgerald worked at 6 parishes of the Diocese of Duluth from 1957 to 1983, and worked in the New Ulm diocese from 1977-78. Plaintiff's attorney claims the Duluth Diocese knew of should have known of Fitzgerald's actions and moved him between parishes where he continued to have access to children. The Diocese however says that no abuse complaints against Fitzgerald surfaced prior to late last year.

Milwaukee Archdiocese Files Reorganization Plan; Criticized As Inadequate By Victims

AP reports that the Catholic Archdiocese of Milwaukee yesterday filed its Plan of Reorganization with federal bankruptcy court. Under the Plan, $4 million will be set aside to compensate 125 clergy sex abuse victims-- the smallest per victim payments yet in any of the 11 bankruptcy reorganizations of dioceses around the country. Over 400 individuals filing claims as victims will not receive payment-- including those beyond the statute of limitations, claimants who already received a settlement from the archdiocese and those abused by priests from religious orders or by parish employees. Also $500,000 will be set aside in a lifetime Therapy Fund for victims.  A Q&A on the Plan of Reorganization posted on the Archdiocese's website gives details on the plan. In a letter posted on the Archdiocese's website, Archbishop Listecki said that the Archdiocese will emerge from bankruptcy with at least $7 million in debt, adding:

The archdiocese has historically operated on a balanced budget, so the burden of paying off this debt will certainly be part of our penance.  I wish we wouldn’t have had to spend the past three years and millions of dollars on attorneys’ fees to get to this point, but now we have a Plan that moves us forward.

Abuse victims strongly criticized the Plan as insufficient, one saying: "It is much like being raped all over again...." The victim advocacy group SNAP issued a statement calling the Plan "breath-taking in its callousness, selfishness and arrogance."

Scottish Appeals Panel Upholds Catholic Agency's Adoption Criteria

In St. Margaret's Children and Family Care Society v. Office of the Scottish Charity Regulator, (SCAP, Jan. 31, 2014), the Scottish Charity Appeals Panel overturned the decision of the Office of the Scottish Charity Regulator that had directed a Catholic adoption agency to end its adoption placement preference for Catholic couples who have been married for at least two years and its placing on low preference non-Catholics and same-sex couples (since they can only enter civil partnerships). The Appeals Panel held that the agency is a religious organization that can assert its, and its members, right to freedom of religious expression under Art. 9 of the European Convention on Human Rights. Discussing application of the Equality Act, the Appeals Panel said:

The Panel has decided that there is indirect discrimination but that indirect discrimination is allowed in terms of The Equality Act because it is a proportionate means of achieving a legitimate aim. The Panel found both the charities exception and the religious exception as contained in The Equality Act to apply....

BBC News reports on the decision. Law & Religion UK blog discusses the opinion at greater length.

Chicago Archdiocese Settles Sex Abuse Case For $3.2M

The Chicago Sun-Times reported yesterday that the Catholic Archdiocese of Chicago has reached a settlement of nearly $3.2 million with the victim of sex abuse by former priest Daniel McCormack. The suit charges that the archdiocese and Cardinal Francis George failed to remove McCormack from contact with children even though they knew that he had sexually abused minors.