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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe 7th Circuit Court of Appeals has again sided with the Archdiocese of Indianapolis in an employment discrimination lawsuit filed by Lynn Starkey, a Roncalli High School guidance counselor who was fired for being in a same-sex marriage.
In a 23-page opinion issued Thursday, the appellate court affirmed the Southern Indiana District Court’s finding that the Archdiocese was protected from the discrimination claim by the ministerial exception. Judge Frank Easterbrook concurred but chastised his colleagues for starting their review with U.S. Supreme Court precedent rather than by looking at the federal statute.
Starkey filed her lawsuit against the Archdiocese in July 2019 after the Catholic Church terminated her contract because she was married to a woman. She alleged the Archdiocese violated Title VII of the Civil Rights Act of 1964.
The Archdiocese countered it was exempt from such claims under Title VII’s religious exemption, the Religious Freedom and Restoration Act of 1993, 42 U.S.C. § 2000bb, et seq. Roncalli identified Starkey as a “minister of the faith” in her job description and employed her under a “Ministry Contract” beginning in the 2017-18 school year.
Starkey countered by arguing she should not be considered a minister because she never engaged in religious matters or held a formal religious title. She did not speak on religious topics during meetings of the Administrative Council, the main leadership body at the high school, and she did not pray or discuss religion with students during individual counseling sessions. She asserted she did not act in a ministerial capacity even if she were entrusted to do so.
The 7th Circuit was not convinced in Lynn Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., and Roncalli High School, Inc., 21-2524.
The panel found the Archdiocese had the right under the Constitution’s freedom of religion provision to hire and fire whomever it wanted.
“(Starkey’s) argument misunderstands the ministerial exception. What an employee does involves what an employee is entrusted to do, not simply what acts an employee chooses to perform,” Judge Michael Brennan wrote, citing Our Lady of Guadalupe, 140 S. Ct. at 2055. “Under Starkey’s theory, an individual placed in a ministerial role could immunize themself from the ministerial exception by failing to perform certain job duties and responsibilities. Religious institutions would then have less autonomy to remove an underperforming minister than a high-performing one.”
In its opinion, the 7th Circuit cited to Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), which held the ministerial exception was “not limited to the head of a religious congregation.”
Easterbrook concurred with the majority conclusion while adding, “It is a stretch to call a high school guidance counsellor a minister.”
However, he did express concern for what he sees as the norm in cases invoking the ministerial exception: Courts are starting with the constitutional question under Hosanna-Tabor rather than following the proper sequence by beginning with the statute.
Easterbrook asserted the principal statutory question in the Starkey case is whether the Archdiocese is entitled to the benefit of the exemption in §702(a) of the Civil Rights Act. That subchapter excuses religious organizations from having to comply with Title VII.
He noted some ambiguity around the subchapter in rulings from other circuits. Namely, some appellate courts have said the exemption permits religious discrimination “but no other kind.”
“Maybe what these decisions are getting at is that §702(a) does not exempt all employment decisions by religious organizations,” Easterbrook wrote. “The decision must itself be religious, as that word is defined in Title VII. This means, for example, that sex discrimination unrelated to religious doctrine falls outside the scope of §702(a).
“But when the decision is founded on religious beliefs, then all of Title VII drops out,” he continued. “I cannot imagine any plausible reading of ‘this subchapter’ that boils down to ‘churches can discriminate against persons of other faiths but cannot discriminate on account of sex.’”
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