Trump Administration Backs Archdiocese That Forced Catholic School to Fire Gay Employee

Today’s post includes three updates out of Indianapolis regarding church employment disputes. First, the Trump administration has stated its support for the Archdiocese of Indianapolis, which is being sued by an employee fired from a Catholic school because of a same-gender marriage. Second, a canon lawyer has said the Vatican’s lifting of ecclesiastical suspensions against Brebeuf Jesuit Preparatory School is “exceptional.” Third, Shelly Fitzgerald participated in a Democratic presidential debate.

Trump Administration Backs Archdiocese in Discrimination Lawsuit

In a Statement of Interest issued last week, the U.S. Justice Department (DOJ) expressed its support for the Archdiocese which faces a wrongful termination lawsuit filed by former Cathedral High School teacher Joshua Payne-Elliott. His suit claims the Archdiocese illegally interfered in Cathedral’s operations when it directed administrators to fire Payne-Elliott and threatened punishments if they did not (Payne-Elliott settled separately with Cathedral in the dispute). A DOJ press release explained the Trump administration’s position and decision to intervene:

“Supreme Court precedent clearly holds that the First Amendment protects the Archdiocese’s right to this form of expressive association, and courts cannot interfere with that right . . . The Statement of Interest also makes clear that courts cannot second-guess how religious institutions interpret and apply their own religious laws. Supreme Court precedent explains that the First Amendment forbids courts from engaging in ‘quintessentially religious controversies.’ Instead, as the Statement of Interest explains, ‘the legitimacy of the Archdiocese’s decision as a matter of Catholic law’ is committed exclusively ‘to the judgment of the Archdiocese.’ “

U.S. Attorney Josh Minkler added, “If the First Amendment’s Religion Clauses stand for anything, it is that secular courts cannot entangle themselves in questions of religious law.”

But the Indianapolis Star reported that Payne-Elliott’s lawyer, Kathleen DeLaney, pushed back against the Trump administration for “politicizing a legal dispute about an Indiana business tort.” She said the case is simple, given the Archdiocese’s “textbook interference in an employment relationship.” That the federal government would become involved in such a local dispute is “highly unusual.” DeLaney will ask the Marion Superior County court which is hearing the case to either remove the Trump administration’s statement or allow other third party opinions to be filed.

Professor Steve Sanders, an expert in constitutional law, said the Trump administration’s filing took a complex issue and “oversimplifies it in a way that might cause the court to disregard (it) as not a serious piece of legal argumentation.” The administration’s statement is much more a “political statement. . .more calculated to win favor with the president’s base of religious conservatives”  than an opinion specific to Payne-Elliott’s lawsuit.

Vatican’s Suspension of Sanctions Against Brebeuf Jesuit “Exceptional,” Says Canonist

Dr. Kurt Martens, a professor of canon law and expert in hierarchical recourse (or how disciplinary appeals occur in canon law), tweeted that the decision by the Vatican’s Congregation for Catholic Education to suspend sanctions against Brebeuf Jesuit Preparatory School while its case was being considered by the Vatican was “anything but common practice” and “exceptional.”

Archbishop Charles Thompson of Indianapolis issued a decree this summer that removed the school’s Catholic designation and barred it from holding school wide Masses all because Brebeuf administrators refused to fire an LGBTQ employee at the archbishop’s request. That employee happens to be Joshua Payne-Elliott’s husband, Layton. But those sanctions are now on hold because the USA Midwest Jesuits province, which operates Brebeuf Jesuit, appealed Thompson’s decree to Rome. Martens explained the suspension on Twitter:

“What does this mean from a canon law perspective? First of all, the case is not resolved yet. However, while a hierarchical recourse against a decree is pending, the execution of the decree can be suspended by higher authority.

“Only in a handful of limited cases, the suspension of the execution of a decree comes automatically when the recourse is filed. That automatic suspension did not apply here; the Congregation for Catholic Education granted it.

“Higher authority normally does not grant such a suspension easily. In fact, when asked, such a suspension is normally denied. Two conditions must be fulfilled before higher authority can grant such a suspension:

“(1) there must be a ‘fumus boni iuris’ of the recourse, meaning, there must be a probability that the recourse will be or can be successful; and, (2) the damage caused by the immediate execution of the decree must be irreparable.

“In other words, this suspension is anything but common practice. It is exceptional.”

Martens spoke with America earlier this year when the Jesuits’ appeal was first filed, suggesting it was unclear what level of control the bishop has over a school operated by a religious order. His latest tweets contradict the Archdiocese’s claims that the suspension was “standard canon-law procedures” and a “common, temporary measure.”

In a related note, DignityUSA released a statement applauding the Congregation’s decision to suspend sanctions while the appeal is being pursued. Executive Director Marianne Duddy-Burke said in a statement the move was a “hopeful sign” and that “students, faculty, and staff at Brebeuf deserve to continue to be sustained by the ability to celebrate liturgy together.” Bondings 2.0 recently published an account from DignityUSA Vice President Meli Barber about attending Brebeuf Jesuit’s prayer service for the start of the school year, which at the time was not allowed to be a Mass, and how that was an experience of hope and freedom. You can read Barber’s post here.

Shelly Fitzgerald Asks Presidential Candidates About Employment Equality

Shelly Fitzgerald, who was suspended in 2018 and then fired by Indianapolis’ Roncalli High School because of her same-gender marriage, joined former student Dominic Conover in asking a question about employment discrimination at the LGBTQ Presidential Forum last month. The Forum featured Democratic candidates for U.S. president. The Indianapolis Star reported further:

“Fitzgerald and Conover, a freshman at Butler University and Roncalli alum that helped found an advocacy group called Shelly’s Voice, were invited to attend the forum and pose a question by GLAAD.

” ‘I’ll be asking the candidates about workplace discrimination,’ Conover said, ‘and if, in first 100 days in office, they’ll make a commitment to ending LGBTQ-plus workplace discrimination.’ “

“Fitzgerald and Conover were asked to submit their question in writing. It will be read by one of the moderators, who will also share a bit of Fitzgerald’s story with the candidates.”

[Editor’s Note: To read a Catholic priest’s moving letter to Dominic Conover, a young gay advocate involved with Shelly’s Voice, click here.]

The Archdiocese of Indianapolis remains ground zero in church LGBTQ-related employment disputes. Payne-Elliott’s lawsuit is just one of three potential discrimination actions the Archdiocese of Indianapolis is facing. Fitzgerald has two filings with the U.S. Equal Employment Opportunity Commission that could become full lawsuits soon. Lynn Starkey has filed her suit against Roncalli High and the Archdiocese which fired her for being in a same-gender marriage. Given Archbishop Thompson’s refusal to stop the LGBTQ firings, it seems likely these disputes and potentially others will continue for quite awhile.

These three church employees in Indianapolis join the more than 80 church employees who have lost their jobs in LGBTQ-related disputes in the last decade. The following resources are available to learn more about such disputes and how Catholics can take action against the church employee firings:

• For Bondings 2.0’s full coverage of the Indianapolis employment disputes involving Roncalli High, Cathedral High School, and Brebeuf Jesuity Preparatory School, click here.
• For Bondings 2.0’s full coverage of church employment issues, click the “Employment” category on the right-hand side of this page.
• For New Ways Ministry’s resources on non-discrimination, church workers, and LGBTQ issues here.

—Robert Shine, New Ways Ministry, October 3, 2019