INDIANAPOLIS — A federal grand jury decided the Diocese of Fort Wayne-South Bend, Ind., will have to pay out nearly $2 million to a teacher it fired for violating the morals clause of her contract by using artificial means to get pregnant.

The jury found the diocese guilty of violating the Civil Rights Act as a result of its decision to uphold its Catholic identity by enforcing the morals clause, which applies to all teachers working in diocesan schools.

The jury of five women and seven men deliberated five and a half hours Dec. 19 before announcing that the Indiana diocese unlawfully discriminated against Emily Herx on the basis of her sex when it declined to renew her contract in June 2011.

Herx, a married Catholic woman, had been a junior-high language-arts teacher at St. Vincent de Paul School in Fort Wayne since 2003. She told diocesan officials that she was conceiving a child through in vitro fertilization (IVF) and was let go after rejecting the diocese’s attempts to reconcile her with Church teaching.

IVF is a technique where children are artificially conceived in a petri dish, with sperm mixed with human eggs. Several embryos are injected into the mother’s womb in the hope that one of them implants successfully. According to Church teaching stated in the Catechism of the Catholic Church, these artificial methods — even when they involve only the father and mother — are “morally unacceptable” because “they dissociate the sexual act from the procreative act” (2376).

IVF treatments also can involve additional moral problems, most notably the creation and destruction of additional human embryos along with those allowed to survive and be born.

According to local media, the jury ordered the diocese to pay Herx $1.75 million for emotional and physical damages, $125,000 for medical expenses, $75,000 for lost wages and $1 in punitive damages.

Herx’s attorney, Kathleen DeLaney, told reporters after the decision that it had been a “very long and difficult fight” with the diocese and that she hoped “this can make some changes for women in the workplace.”

The Register reached out to DeLaney for comment but received none as of publication time.

 

Almost 7% of Diocesan Assets

The damages are a hefty sum. During the trial, the diocese testified it had net assets of $30 million. That puts Herx’s $1.9 million award from the jury at almost 7% of the diocese’s overall financial worth. In comparison, Herx’s salary had been $28,000 a year.

A diocesan statement emailed to the Register stated the Fort Wayne-South Bend Diocese is “disappointed with the outcome of the trial and is considering an appeal to the U.S. 7th Circuit Court of Appeals. 

“The diocese considers it important to defend its constitutional and statutorily granted freedom to make faith-based employment decisions without inappropriate interference.”

Eric Kniffin, a religious-institutions attorney in Colorado, said the case appears to clash with the “ministerial exception” in the unanimous Hosanna Tabor precedent set by the U.S. Supreme Court in 2012.

“The key issue in this case is whether federal law requires a Catholic school to employ an elementary-school teacher that disobeys the pastor and commits a gravely immoral act. The jury said ‘Yes,’ but the First Amendment says otherwise,” Kniffin said.

He added that the high court made clear “the First Amendment protects a church’s right to select who will teach its faith and carry out its mission,” especially when the court ruled in Hosanna Tabor, “The church must be free to choose those who will guide it on its way.”

“Parents understandably want to know that Catholic-school teachers will teach and model the Catholic faith,” Kniffin said. “But that is very hard for Catholic schools to maintain if plaintiffs’ lawyers can threaten them with expensive discovery, let alone million-dollar jury awards.”

 

Clear Contractual Language

In the contract Herx signed, it stated, ”Acknowledging and accepting the religious and moral nature of the Church’s teaching mission, the undersigned agrees to conduct herself or himself at all times, professionally and personally, in accordance with the episcopal teaching authority, law and governance of the Church in this diocese.”

It adds that the “bishop or his designee” is ultimately responsible for resolving “charges of immoral behavior or of conduct violative of the teachings of the Church.”

The case is complicated by the fact that Herx was fired after her second round of IVF treatments. According to court documents, Herx informed the school’s principal, Sandra Guffey, in March 2010, during the first round of treatment — part of which was paid for by the diocese’s health plan — and her contract was renewed. Guffey registered no objections at the time, explaining during the trial that she had been unaware of the Church’s teaching on IVF and only learned about it when reading a magazine a year later.

Herx underwent a second IVF round in April 2011. Guffey, now aware of the Church’s teaching, then related Herx’s IVF treatments to St. Vincent de Paul’s pastor, who asked the diocese for guidance.

The pastor, Father John Kuzmich, related at the trial that he fired Herx after she had been informed that IVF was a “grave, immoral” violation of the Church’s teachings on the dignity of the human person, and she decided to go through with IVF anyway; that, he said, sealed the decision not to renew her contract for the 2011-2012 school year.

“I wanted her to express remorse or regret for going against the teachings of the Church,” he said.

Herx’s attorneys also alleged a double standard at work when it came to addressing “scandal,” since three male staffers at St. Vincent de Paul went to a strip club and were thrown out for harassing one of the strippers. As a consequence, they only received copies of the morality clause in their mailboxes. As reported by the Journal Gazette, at least one of the confronted staffers did express remorse; Herx, in her case, did not.

According to the Journal Gazette, Bishop Kevin Rhoades appeared to agree that Herx may have felt blindsided, as she went through IVF in 2010 believing the Church had no problem with it and then learned a year later that the IVF treatments she started would cost her her job.

But the bishop testified that while this would diminish her moral culpability, he did not believe it would have changed the ultimate decision not to renew Herx’s contract after she had been informed that continuing with IVF treatments would violate Church teaching.

 

Better Formation of Teachers Needed

According to Patrick Reilly, president of the Cardinal Newman Society, the case “never should have gone to trial.”

“There is no religious freedom if a court or a jury can decide for the Catholic Church what is morally appropriate for those who are hired to teach in a Catholic school,” he said.

Reilly said the Church’s failures in the past to “teach the truth about human sexuality and marriage” are now creating a “substantial threat” to Catholic schools’ religious liberty.

“The teachers filing these lawsuits seem to be largely ignorant of Catholic teaching — despite being entrusted to teach the next generation of Catholics — and such ignorance is widespread in the Church.”

He said the solution to lawsuits such as the one Herx filed “is more and better Catholic education” — including making sure prospective teachers for Catholic schools know or understand Church teaching when they sign their contracts. 

“We need to do an even better job of hiring and ensuring that teachers know what they are signing up for.”

 

Peter Jesserer Smith is the Register’s Washington correspondent.