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Editor’s note: This article has been updated with comments from Americans United for Separation of Church and State.
Addressing for the second time the case of a Roncalli High School counselor who was fired for being in a same-sex marriage, the 7th Circuit Court of Appeals has again upheld judgment for the Catholic school and the Archdiocese of Indianapolis under the ministerial exception.
Judge Amy St. Eve wrote the unanimous opinion Thursday upholding judgment for Roncalli and the archdiocese in Michelle Fitzgerald v. Roncalli High School, Inc. and Roman Catholic Archdiocese of Indianapolis, Inc., 22-2954.
Michelle Fitzgerald had been a longtime guidance counselor at the Indianapolis Catholic high school, including serving as co-director of guidance, when the school declined to renew her employment agreement in 2018. The decision came after the school learned Fitzgerald was in a same-sex marriage, which is contrary to the school’s Catholic faith.
Around the same time, Fitzgerald’s counterpart in the guidance office, Lynn Starkey, was also let go because she was in a same-sex marriage.
Both women filed suit under Title VII, and the U.S. District Court for the Southern District of Indiana granted summary judgment for the defendants in both cases, citing the First Amendment ministerial exception. The 7th Circuit upheld that decision in Starkey’s case last year.
In her appeal to the 7th Circuit, Fitzgerald argued the district court had misapplied the ministerial exception in ruling for the school and the archdiocese. In its ruling, the district court held, “To be sure, ‘[i]t is a stretch to call a high school guidance counselor a minister,’ as ‘the job is predominantly secular.’ But because Roncalli, through the employment agreement and faculty handbooks, expressly entrusted Fitzgerald with shaping the school’s religious policy, Fitzgerald’s position as co-director of guidance qualifies for the ministerial exception … .”
Upholding that decision, St. Eve wrote, “There is no dispute that the defendants fired Fitzgerald because of her same-sex marriage and that Title VII prohibits that kind of sex discrimination. See Bostock v. Clayton County, 140 S.Ct. 1731, 1744 (2020). But the defendants contend that certain exceptions, exemptions, and protections guard their actions from statutory liability. The district court granted summary judgment on the ministerial exception. Our analysis begins and ends there.
“… Just last year, we affirmed the application of the ministerial exception to Fitzgerald’s Co-Director of Guidance,” St. Eve continued. “… That decision goes a long way in resolving this case. As with Starkey, there is no genuine dispute that Fitzgerald played a crucial role on the (school’s) Administrative Council, which was responsible for at least some of Roncalli’s daily ministry, education, and operations.
“And like Starkey, Fitzgerald ‘helped develop the criteria used to evaluate guidance counselors, which included religious components like assisting students in faith formation and attending church services.’ Additionally, Fitzgerald held herself out as a minister, further supporting the district court’s finding. Considered together, these undisputed facts preclude a reasonable jury from finding that Fitzgerald was not a minister.”
More specifically, the appellate court said Fitzgerald held herself out as a minister in a self-evaluation, writing, in part, “I consistently use spiritual life and resources in my counseling conversations as well as sharing my own spiritual experiences. … I am faithful, and have no problems sharing my beliefs and my love of God. … In a faith-based school, I feel this is definitely a strength when working with young people who are seeking direction.”
“Considering all the evidence in the record,” St. Eve wrote, “we conclude that there is no daylight between this case and Starkey. Our precedent makes clear that Fitzgerald was a minister at Roncalli and that the ministerial exception bars this suit.
“But cases like today’s — involving two plaintiffs with the same title, at the same school, performing the same duties, and bringing the same claims in our court — are rare. A fact-specific inquiry is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution,” St. Eve added, citing Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).
In a separate concurrence, Judge Michael Brennan called back to Judge Frank Easterbrook’s concurrence in Starkey’s case, where he wrote that the Title VII claims could be resolved on statutory, rather than constitutional, grounds.
Brennan, like Easterbrook, pointed to Section 702(a) of the Civil Rights Act, which exempts religious organizations from having to comply with Title VII.
“So, when a covered employer demonstrates that an adverse employment decision was made because the relevant individual’s beliefs, observances, or practices did not conform with the employer’s religious expectations, the exemption would apply and bar a Title VII claim on that employment decision,” Brennan wrote. “But as in our sister circuits, a pretext inquiry — akin to step three of the McDonnell Douglas Corp. v. Green framework — should apply to the employer’s proffered religious rationale. … Such a pretext inquiry would mitigate concerns raised by Fitzgerald and amici that religious employers would have license to violate Title VII should they manufacture a religious reason for an adverse employment decision.
“… Here, the §702(a) exemption overlaps with the protections of the ministerial exception,” Brennan concluded. “But, no doubt, our circuit and its district courts will have occasion to address the statutory exemption in another case where a non-minister plaintiff asserts Title VII claims against a religious employer.”
Judge Joel Flaum also concurred.
The Becket Fund for Religious Liberty, which represented Roncalli and the archdiocese, celebrated the 7th Circuit’s ruling.
“Religious schools exist to pass on the faith to the next generation, and to do that, they need the freedom to choose leaders who are fully committed to their religious mission,” Joseph Davis, counsel at Becket, said in a statement Thursday. “The precedent keeps piling up: Catholic schools can ask Catholic school teachers and administrators to be fully supportive of Catholic teaching.
“Today’s ruling is common-sense: decisions about who conveys the Catholic faith to Catholic school children are for the Church, not the government,” Davis continued. “Many parents entrust their children to religious schools precisely because those schools help to pass on the faith, and this victory ensures they remain free to do so.”
Fitzgerald has 90 days to appeal to the U.S. Supreme Court. She is represented by Indianapolis attorney Mark Sniderman, Greenwood attorney David T. Page and attorneys with Americans United for Separation of Church and State.
In a statement, AU President and CEO Rachel Laser said, “Religious extremists are waging a crusade to undermine basic civil rights and won a disturbing victory before the Supreme Court in the 303 Creative LLC v. Elenis case just two weeks ago. Shelly Fitzgerald’s case was another line of attack. These religious extremists are trying to expand a narrow, commonsense rule — meant to allow houses of worship to select their own clergy according to their own faith — into a broad license to circumvent civil rights laws and to discriminate.
“Shelly Fitzgerald, like most employees at religious organizations, wasn’t hired to minister to students or to preach the Catholic religion,” Laser continued. “She was hired to provide secular guidance to students seeking to get into college. She should not have lost her civil rights simply because the secular work she performed was done at a religious school.”
A third teacher, Joshua Payne-Elliott, was fired in 2019 from another Indianapolis high school, Cathedral High School, for being in a same-sex marriage.
Payne-Elliott’s state-court case was dismissed in May 2021. The Court of Appeals of Indiana reinstated the lawsuit the following November, but the Indiana Supreme Court ruled in favor of the archdiocese last August.
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