06/19/2013 05:24 pm ET Updated Aug 19, 2013

Cincinnati Archdiocese Appeals Award to Teacher Fired for IVF Pregnancy: Examining the 'Religious Freedom' Arguments

When Christa Dias became pregnant, she was a
computer teacher for two schools in the Archdiocese of Cincinnati, Holy Family
and St. Lawrence. She shared the good news with her principal when she was
ready to plan her maternity leave, at five and a half months. Her principal
congratulated her, but other school and church officials did not think the
impending birth of this particular child was cause for celebration, because Dias
is not married. She was fired three days later.

The first reason given for Dias' termination was that she was pregnant and
unmarried. Federal law prohibits firing a woman for being pregnant, but in
these kinds of cases, Catholic schools sometimes get away with firing people
for violating a prohibition on premarital sex that applies to men and women
alike, pregnant or not. The pregnancy is the evidence, not the offense itself,
so schools argue it isn't pregnancy discrimination when they fire a pregnant woman.
Dias' pregnancy, however, was not the result of premarital sex. When she
explained she had undergone IVF to her employers, she learned that was grounds
for termination as well.

Dias sued for pregnancy discrimination and breach of
contract. Since she brought suit, the daughter the archdiocese contends never
should have been born has reached the age of two, and the Supreme Court decided
an important case concerning the rights of religious organizations to discriminate
against some employees. The jury awarded her $171, 000 in back pay,
compensatory damages and punitive damages. This is cause for some optimism, but
the arguments the archdiocese made in its attempt to keep the case out of court
are a distressing example of the larger trend in "religious freedom" claims being made
to deprive employees of the protections of the law.  And on June 17th, the Archdiocese

The archdiocese and schools argued Dias' firing was not the result of
pregnancy discrimination, but rather Dias' violation of her employment
contract, which required she "comply with and act consistently in accordance
with the stated philosophy and teachings of the Roman Catholic Church." But the
archdiocese also made the more audacious arguments that the First Amendment
protects its right to discriminate if it so chooses and bars the secular court
from interpreting the employment contract.

Dias won her lawsuit on the basis of the pregnancy discrimination claims,
not the contract claim; she was not permitted to argue her contract claims
because the court held that "that Plaintiff admitted she was in a long-term homosexual
relationship during her employment, and that she kept such fact secret from
Defendants as she knew Defendants would view her relationship as a violation of
the morals clause."  Thus she had "unclean
hands" could not sue on the contract "she knew she was breaching." 

Short of an explicit admission from Dias that she knew she was in breach of
the morals clause just by being gay, I think there should have been a finding
of fact by the jury as to whether being gay was forbidden by the contract, and
if it was, whether the archdiocese had waived that provision by either
employing Dias despite knowledge she was gay or employing other, if you will, "known
homosexuals."  It seems possible that is the case because Archdioceses across
the country are filled with people who are not anti-gay.

Regardless, the contract issue still comes into play (assuming the Archdiocese fails to show Dias is a "minister" with no anti-discrimination protections) because the Archdiocese argues it had a non-discriminatory reason to fire Dias--she breeched her contract by having IVF. 

The "Ministerial Exception" Defense: Protestant Computer Teachers
Are Ministers of the Catholic Church

The archdiocese claimed it was not beholden to anti-discrimination laws on
the basis of a constitutionally required exception recognized by last year's
Supreme Court decision in Hosanna-Tabor v. EEOC. In that case, a
teacher and "commissioned minister" at a Lutheran school alleged she was fired
in violation of the Americans with Disabilities Act. The Court held that the
First Amendment bars the enforcement of anti-discrimination laws when a
religious organization fires a minister. This "ministerial exception" had been
recognized by lower courts as a protection of the rights of a church to choose
its ministers and members without government interference. The question then
became whether the teacher in question was a "minister." The Court declined to
provide a definition of "minister" but looked to the nature of the plaintiff's
position as a "called" teacher. Though she taught mostly secular subjects, her
position required extensive religious training, entailed teaching religion and
leading her students in prayer, and included benefits not granted to "lay"
teachers. The Court concluded unanimously that she was a minister.

The ministerial exception is problematic, but justifiable insofar as
individuals have reason to know they are considered ministers and have
consented to religious control. Hosanna-Tabor protects the rights of
religious groups to choose "who will preach their beliefs, teach their faith
and carry out their mission." If they don't want ministers who are disabled, or
Black, or women, they are free to discriminate against them.

Justice Clarence Thomas, per his concurrence, would have the ministerial
exception apply to anyone an employer claims in good faith is a minister,
seemingly without regard to whether an employee knew his employer considered
him a minister. Justices Samuel Alito and Elena Kagan believe it "should apply
to any 'employee' who leads a religious organization, conducts worship services
or important religious ceremonies or rituals, or serves as a messenger or
teacher of its faith."

The Archdiocese of Cincinnati, however, argued that Dias is a minister
despite the fact that the schools hired her to teach computers, with full
knowledge that she is not even Catholic. It claimed that Dias is a
minister of the Catholic Church because she is a "role model." On this theory,
every employee of a Catholic school is a minister. So the school would enjoy
not just their existing right to decide, for example, they no longer want any
Hispanic nuns teaching religion, but also the right to fire all Hispanic
receptionists, crossing guards, or math teachers in violation of
anti-discrimination law. Anyone who works for them is a minister, and ministers
can be fired for any reason.

That is a claim to be outside the law. It is an example of the move from the
concept of church autonomy--non-interference into the affairs of people who
voluntarily join a religious group and wish to govern themselves--to claims for
religious power that trump laws protecting outsiders and dissenters.

The court rejected the ministerial exception argument finding that Dias,
having no religious duties, was not a minister and is protected from
discrimination by the law. The archdiocese has also amended its standard employee contract
since Dias signed it, explicitly characterizing school employees as
"Ministerial." This change will alert prospective employees who've read Hosanna-Tabor
to the archdiocese's intention to deny them the protection of
anti-discrimination laws, but will be of limited use to any primary school
teachers who have not found the time to keep up with the latest in the Supreme
Court establishment jurisprudence.

The Lack of Jurisdiction Argument: Interpreting the Employment
Contract Would Entangle the Secular Court in Religion

The archdiocese made a further claim to be outside the law in arguing the
case must be dismissed because, even if Dias wasn't a minister, the court
could not interpret the contract since doing so would unconstitutionally
entangle the court in religious matters. (The lawsuits challenging the
contraceptive coverage regulation include similar entanglement arguments.) The
argument basically goes like this: The contract requires compliance with
Catholic teaching. The courts can't say what Catholic teaching is. Only we
can say what Catholic teaching is, so only we can say if the contract was

Here's the thing: A contract is an exchange of promises enforceable at law.
If the archdiocese reserved the right to fire Dias at any time for any
reason, un-reviewable by the courts, it didn't actually make her a promise to
employ her for any period of time. In Hosanna-Tabor, the Court
explicitly declined to address whether ministers could sue their employers for
reasons other than discrimination, such as breach of contract. The
archdiocese's entanglement argument here isn't just an attempt to extend Hosanna-Tabor
to deprive ministers of contract protections, but to deprive
non-ministers of any remedy at law as well.

The court rejected the archdiocese's entanglement argument, holding that a
determination as to whether there was a "meeting of the minds" that agreeing to
comply with church teaching was agreeing not to have a child through artificial
insemination required a factual finding by a jury.

However, the archdiocese did have a point about the difficulty of
determining whether any particular action breaches an agreement to "comply with
Catholic teaching." Dias didn't know the Catholic Church opposed IVF and thought she was only agreeing to try "to be a
Christian woman and follow the Bible."

The archdiocese argued she agreed to something very different. To prove that
Catholic teaching forbids IVF, the archdiocese attached as exhibits to one
brief paragraphs 2,373 to 2,379 of the Catechism of the Catholic Church and a
23-page 1987 Vatican document on biomedical issues. So the archdiocese
essentially claimed that through the term "Catholic teaching," Dias'
employment contract incorporates each of the over 600 pages of the Catechism,
every papal encyclical, a statement by the Committee on the Doctrine of the
Faith, and who knows what else.

That can't be a reasonable interpretation of a contract. And even the new
version of the employee contract on the archdiocese's website, now explicitly
incorporating and linking to the Catechism, won't solve the problem. Even for an
employee with an encyclopedic knowledge of the Catholic Catechism, whether or
not a particular action complies with Catholic teaching is not necessarily
black and white. Understanding, explaining, debating Catholic doctrine is
something theologians dedicate whole careers to. And checking the Catechism
website won't give you answers that require an exercise of individual

The point of a contract is that you can rely on the promises made. A
contract that leaves what is permissible up to the ad hoc theological
determinations of Human Resources regarding a religion you don't practice does
not provide certainty on which one can rely. The archdiocese itself
acknowledges that secular courts are not competent to decide what does and does
not violate Catholic teaching, so how in the world is Protestant Christa Dias
supposed to?

Examples of fireable offenses from real life and lawsuits include:
advocating for the ordination of women, refusing to recant your support for gay marriage, admitting disagreement with Church dogma to your principal
in private, being pregnant a suspiciously short time after your wedding,
declining to document for your boss what your pastor thinks of you, being overheard discussing your wedding plans, and
including the name of your partner of the same sex in your mother's obituary. (It isn't the basis of Dias'
discrimination claim, but she is gay and lives with her partner, which the
archdiocese predictably argued undermines her credibility.)

Also, consider this: If you run into your boss at the drugstore with a box
of condoms in your hands, you are going to have a pretty tough time arguing you
didn't know you were violating Catholic teaching in light of the bishops
ongoing, widely-reported scorched earth campaign against the contraceptive
coverage mandate in the Affordable Care Act.

Other, violations of Catholic teaching might include advocating for the Paul
Ryan budget,
ending treatment of a family member in a vegetative
state, driving a friend to get contraception, having a vasectomy, openly
supporting the death penalty, opposing immigration reform, criticizing the
Vatican's treatment of U.S. nuns, and skipping mass. Something that would
definitely not be in keeping with Catholic teaching would be attending a mosque
or a synagogue on a regular basis and denying the divinity of Jesus Christ.

But even the most orthodox of Catholics are sinners. If every violation of
Catholic teaching can cost you your job, you can't rely on having one. If
claims like those made by the archdiocese are accepted in other cases, then it
is essentially impossible to enter into a contract with a religious
organization; you can only be an at-will employee. And it isn't only in the
employment context that the trend in religious freedom claims suggests one can"t
on the representations of a Catholic-affiliated organization.

Claims that whatever a Catholic-affiliated organization does is what you
should have expected, that its contracts can't be adjudicated, and its religious
freedoms trump any objective by the government add up to a larger vision of the
Catholic-affiliated organization as a black box, unaccountable to individuals
and unregulated by the government.

Telling people who don't like that to stay away from the black box isn't
enough. These organizations are too dominant in their fields (education, social
services, health care), involved in the public sphere, and entrusted with
taxpayer funds to just avoid. Certainly, as critics hear regularly, "the
Catholic Church is not a democracy." Indeed, it is an anti-democratic hierarchy
that rejects the equality norms of the United States, but it and its affiliates
are operating within a democracy with a system of laws. That those laws protect
people like Christa Dias and entitle her to make her case to a jury is not a
violation of religious freedom.

This article was originally published at RH Reality Check.