The Volokh Conspiracy
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First Amendment Protects Catholic Archidocese's Pressuring Catholic School to Fire Same-Sex-Married Teacher
From a two-Justice opinion in the Indiana Supreme Court case Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., written by Justice Geoffrey Slaughter and joined by Justice Mark Massa. Justices Christopher Goff and Derek Molter concurred in the judgment (without a separate opinion), and Chief Justice Loretta Rush didn't participate, so Justice Slaughter's opinion is not a majority, but it's likely to prove influential:
Joshua Payne-Elliott sued the Roman Catholic Archdiocese … for intentional interference with his contract and employment with Cathedral High School, a Catholic school in Indianapolis….
More specifically, he alleges as follows. Cathedral, founded in 1918, was initially owned by the archdiocese, which later turned over care of Cathedral to the Brothers of Holy Cross. Cathedral was incorporated in 1972 "for the sole purpose of maintaining and operating a Roman Catholic secondary school." In substance, Cathedral's bylaws state as follows: "the essential Holy Cross character of Cathedral as a Catholic high school shall be at all times maintained and [ ] a mission priority is to be an educator in the faith." The archdiocese exercises "significant control" over Cathedral, including "its recognition of Cathedral as a Catholic school."
From 2006 until June 2019, Cathedral employed Payne-Elliott as a world-language and social-studies teacher under a contract that was renewed annually. Payne-Elliott, "a homosexual male," married his same-sex spouse in 2017; his spouse teaches at Brebeuf Jesuit Preparatory School, also in Indianapolis. Cathedral continued renewing Payne-Elliott's teacher contract through May 2019 for the 2019–2020 school year. The archdiocese knew about Payne-Elliott's contract with Cathedral.
In June 2019, Brebeuf announced that despite pressure from the archdiocese, it would not fire Payne-Elliott's spouse. Brebeuf explained it declined the archdiocese's directive that Brebeuf dismiss the spouse "due to the teacher being a spouse within a civilly-recognized same-sex marriage." The next day, Archbishop Charles C. Thompson issued a decree stating that, after extensive dialogue between the archdiocese and Brebeuf, the archdiocese no longer recognizes Brebeuf as a Catholic institution. The decree states that, in accord with Canon 803 of the 1983 Code of Canon Law, Brebeuf, "by its own selection, can no longer use the name Catholic and will no longer be identified or recognized as a Catholic institution by the Archdiocese of Indianapolis nor included in the listing of The Official Catholic Directory." The decree explains that the archbishop accepted and respected a school's right and responsibility to make decisions, but that it is his "canonical responsibility to oversee faith and morals as related to Catholic identity within the Archdiocese of Indianapolis" and that Brebeuf "ha[d] chosen not to implement changes in accord with the doctrine and pastoral practice of the Catholic Church[.]"
The complaint alleges further that the archdiocese gave Cathedral the same directive it gave Brebeuf. Cathedral chose differently. On June 23, 2019, Cathedral's president informed Payne-Elliott that, according to this directive, Cathedral was terminating his employment. The president stated that the sole reason for his firing was that "the Archbishop directed that we [Cathedral] can't have someone with a public same-sex marriage here and remain Catholic."
Cathedral then posted a letter addressed to the "Cathedral Family" on its website. The letter stated, in part, that "after 22 months of earnest discussion and extensive dialogue" between Cathedral and the archdiocese, "Archbishop Thompson made it clear that Cathedral's continued employment of a teacher in a public, same-sex marriage would result in our forfeiting our Catholic identity due to our employment of an individual living in contradiction to Catholic teaching on marriage."
It continued: "Cathedral has been a Catholic school for the past 100 years and our Catholic faith is at the core of who we are and what we teach at Cathedral. We are committed to educating our students in the tenets of the Catholic faith[.]" It stated further that "to remain a Catholic Holy Cross School, Cathedral must follow the direct guidance given to us by Archbishop Thompson and separate from the teacher." During oral argument, Payne-Elliott's counsel told us that his client "threatened" to sue Cathedral for breach of contract, and Cathedral settled….
[U]nder the church-autonomy doctrine a civil court may not (1) penalize via tort law (2) a communication or coordination among church officials or members (3) on a matter of internal church policy or administration that (4) does not culminate in a criminal act. Here, based on the complaint's allegations, the church-autonomy doctrine bars the case. First, the complaint alleges tort claims, i.e., intentional interference with contract and employment.
Second, the complaint rests on communications between church officials and members, here the archbishop and Cathedral. It alleges that the archdiocese "directed" Cathedral to fire Payne-Elliott in accordance with the archbishop's "directive"; that the archbishop "directed" Cathedral that it could not have Payne-Elliott on staff and remain Catholic; that the archbishop "made it clear" that if Cathedral were to continue to employ Payne-Elliott, it would forfeit its status as a Catholic school; and that Cathedral must "follow the direct guidance given to us by [the] Archbishop."
Third, the archdiocese's decision whether a school maintains its Catholic identity is an internal matter that concerns both church policy and administration. The gist of Payne-Elliott's claims is communication between the archbishop and Cathedral, a Catholic school, over a matter involving church discipline and doctrine: whether and when the archdiocese would continue to recognize Cathedral as Catholic is at the heart of the communication (i.e., the "directive" to Cathedral). The complaint and attachments show the directive was, like the one to Brebeuf, a choice the archdiocese gave Cathedral. It could either retain its recognition as a Catholic school by following the archdiocese's instruction on what was required to be recognized as a Catholic school or forfeit continued recognition. This choice reflects the archdiocese's authority to declare which schools are Catholic, consistent with Dwenger.
Fourth, the complaint does not allege the archdiocese's tortious conduct ended in a criminal act. {[C]riminal conduct is not protected by the church-autonomy doctrine—even if carried out using communications about church doctrine or policy. [The court cited for this proposition a precedent that noted that "the Free Exercise Clause would [not] prevent prosecution for an agreement with another person to commit a felony, even if that other person is another church member or official and the agreement implicates ecclesiastical issues, if the state also proves an overt act in furtherance of that agreement in accordance with Indiana's conspiracy statute. For example, a defendant charged with conspiracy to commit murder via terroristic attacks could not insulate himself from liability merely by claiming that the agreement element of the crime occurred within a protected discussion of church doctrine or policy. -EV]} Thus, Payne-Elliott's complaint establishes the church-autonomy defense and requires dismissal ….
Congratulations to John S. (Jay) Mercer and Paul J. Carroll of Wooton Hoy, LLC, and Luke W. Goodrich, Daniel H. Blomberg, and Joseph C. Davis of The Becket Fund for Religious Liberty.
