Not so long ago I wrote about a case from Cincinnati where a woman who had taught in a Catholic school asserts that she was fired for using ART to conceive a child. On the Today Show this morning there’s another similar case. It’s also in the newspapers and you can find it on-line, too. It does make me wonder about whether there’s a real effort by the Catholic Church to draw a public line in the sand around these issues.
Emily Herx taught literature and language arts at St. Vincent de Paul Catholic school. She taught for eight years and by all accounts was very good at her job. But Herx and her husband (for she was married) were having trouble conceiving a second child. So they turned to IVF. (I’m going to assume they were using their own gametes but I’m not sure it matters for the lawsuit.)
Now from the stories it seems likely that some people at the school knew about her use of IVF but somehow at some point things went bad. IVF is, according to Catholic teaching, “an intrinsic evil, which means that no circumstances can justify it.” (I think that’s a quote from the lawsuit rather than a direct quote from the Archdiocese, so take it with a grain of salt. I do think it reflects church teaching, though.) And as Herx is a teacher at a Catholic school, she’s contractually obligated to ” have knowledge of and respect for the Catholic faith and abide by the tenets of the Catholic Church.” So Herx lost her job and has sued.
The school asserts it is entitled to fire Herx because she acted in a way inconsistent with church law and that she should have known about church law because that is what she agreed to. It asserts that as a religious institution it has a right to make decisions on a religious basis as long as the decisions are impartial.
There are, to my mind, two levels of problems with the Archdicese’s response. First, according to the lawsuit, the church has teachers who are divorced and has male teachers who have had vasectomies (covered by the school’s insurance–as were the fertility treatments.) Divorce is also against Church teaching and while I don’t specifically know about vasectomies, I would guess that it is not okay if you have the surgery so that you can more freely engage in non-procreative sex.
Indeed, Church teaching forbids use of contraceptives generally. So it would seem that any teacher who uses contraceptives ought to be fired just as Herx was. If that’s not happening (and I’ll guess there are a few working teachers who are using contraceptives), then Herx is being treated differently than other and that’s a basis for a discrimination claim.
It does seem to me there are reasons to suspect discrimination here. There are extensive Church teachings about many topics around human sexuality and reproduction. Surveys generally show that even practicing Catholics don’t follow some of them. This being the case, it would follow that many teachers at Catholic schools are in violation of at least some of the tenets of the Church. But there aren’t wholesale firings. (Yet?) This means the Catholic Church is picking and choosing and that could be a bit of a problem.
But there is a second and larger issues here, one that I touched on in that earlier post. It’s a critical issue that is coming up a lot these days in many contexts.
We all know that the Church is entitled to discriminate in contravention of general laws when it is acting as a Church–that’s required by our commitment to religious freedom. No civil authority can force the Church to ordain women, even though systematically excluding women from some jobs is generally prohibited.
But the Catholic Church is a vast a sprawling enterprise that engages in a host of activites–it provides public housing, it gets state funding to place children for adoption, it runs schools and hospitals. Does the right to discriminate based on religious teachings follow it to all those places? Could the Church fire a hospital cafeteria worker for using IVF? Could it decline adoption services to a woman who had tried IVF? Where does the right to make decisions on a religious basis end?
The relevant legal lingo here is probably the language of that recent Supreme Court case (see the earlier post)–the “ministerial exception.” The Church can make decisions in the employment of those deemed ministers–but presumably not everyone employed by the Church is a minister. Is a language arts teacher at a Catholic school a minister? I guess we shall see. Ditto the cafeteria worker.
In the end, though, I want to tie the two objections I’ve raised together. Given the Church teachings I don’t think the Church can practically refuse to hire all those who don’t comport with all the tenets of Catholicism. I don’t think there are enough people who play by all the rules to staff all the jobs. So the broader the invocation of the right to discriminate, the more likely the Church will be picking and choosing which violations of doctrine warrant firing. That’s something I don’t think they get to do.