NEWARK, N.J. — The Catholic Archdiocese of Newark is fighting an anti-discrimination lawsuit in state court challenging a decision by one of their high schools to fire a guidance counselor, whom they discovered had entered into a legal marriage with another woman.

Kate Drumgoole, the former dean of guidance and girls’ basketball coach at Paramus Catholic High School, sued the archdiocese, the high school and its president, James Vail, in Bergen County Superior Court, alleging she had been unlawfully fired from her position in January 2016, after school authorities learned of the August 2014 same-sex union.

Drumgoole’s legal spouse, Elaine Vanore, had publicized the union on Facebook by posting pictures of the event.

On Aug. 22, superior court Judge Lisa Perez Friscia ordered that the case should proceed to the discovery phase, in order to determine the facts of whether Drumgoole served as a ministerial employee and thus prompt First Amendment and state jurisprudence that provides a “ministerial exception” for churches and other religious organizations from employment nondiscrimination statutes.

 

Opposing Positions

According to court documents, Drumgoole had been employed as an assistant girls’ varsity coach since 2005 and as a guidance counselor since 2010. Both in August 2010 and November 2014 — before and after her wedding to Vanore — she had signed the archdiocese’s “Policies on Professional and Ministerial Conduct,” which included a code of ethics stating that personnel will conduct themselves according to “the discipline, norms and teachings of the Catholic Church.” It later goes on to explain these standards must be upheld in both “their day-to-day work and personal lives.”

According to the court, Drumgoole’s duties as a guidance counselor were also explained in the faculty handbook as working collaboratively with the administration in fostering “Gospel values” at the school, providing counseling “consistent with authentic Catholic teaching” and projecting the “religious mission and vision of the school” by her work and actions.

However, Drumgoole asserted in her suit that she was not acting as a minister of the Church at Paramus Catholic in her duties as a counselor and coach and was not involved in teaching religion. She also argued the school was bound by its own sexual-harassment policy that she and other employees relied upon, which referenced state laws that it was illegal to discriminate against or harass an employee for a variety of factors that include “marital status” and “gender identity or expression.”

The archdiocese, however, has contended that Drumgoole was a ministerial employee of the Church in her duties at Paramus Catholic.

In an Aug. 31 letter provided to the Register and other media, Archbishop John Myers explained that the Catholic Church sees education as “an important ministry that supports and furthers the mission of the Church.”

“All involved in the ministry of Catholic education, regardless of the positions they may have or the duties and responsibilities they shoulder, are charged with forming young people into witnesses to Christ and opening their hearts to the spiritual transformation given by the Holy Spirit,” he said. “By their words and by their lives, they teach.”

Archbishop Myers stated that the U.S. Constitution, federal and state law back up the right of every religious organization to “promote and define its own identity, mission and message,” and to ensure its personnel do the same.

Having a Catholic educator in a same-sex union, he explained, creates a “public counter-witness to Catholic teaching” on marriage, which the Church teaches can only be the union of a man and a woman, and the Church needs to have the freedom to take “corrective steps” to protect the integrity and identity of its mission.

“The invitation to join in the life of the Church does not include an invitation to alter or redefine what the Church believes and teaches, nor is it an invitation to allow others to define the identity, mission and message of the Church,” he said.

The Register sought comment from Drumgoole’s legal counsel for this story but did not receive a response by deadline.

 

Shifting Legal Landscape

Claims involving the “ministerial exception” typically proceed to the discovery process when the position does not involve an obvious position such as a pastor, according to Eric Kniffin, a religious-institutions attorney at the Lewis Roca Rothgerber Christie firm in Colorado.

He explained that the controlling U.S. Supreme Court precedent for these cases, Hosanna Tabor, is “fact-dependent.” Just describing a position with the words “minister” or “ministerial” is not enough.

“Did she really function as a minister? Did she have that sort of job? Was she given these job responsibilities? Was her job evaluated on that basis? Did she understand that her job [included ministry?] — those are the sort of things that the court is going to look into,” he said.

Kniffin said that the ministerial exception is the strongest protection that religious institutions have in these kinds of cases, which is why he advises his clients to strengthen their policies along those lines and document it extensively.

The key issue for Catholic schools is whether they have the right to select the leadership they need to guarantee to parents that they are providing students with a Catholic education.

“That’s really what this is about,” he said.

Thomas Berg, a law professor at the University of St. Thomas School of Law in Minneapolis, told the Register that religious-liberty claims and same-sex “marriage” claims are coming more often into conflict, in an atmosphere of increasing political polarization and lack of sympathy on either side for the other’s concerns.

Individual cases like Drumgoole’s, he added, involve real conflict between the claims of religious freedom and freedom from employment discrimination. The cases will end up pushing the courts to clarify how broad the ministerial exception goes. While the courts are not inclined to let religious employers call everyone a minister, Berg explained, they are also wary of imposing a narrow definition of minister that could end up taking sides in a church or religious entity’s internal debate.

Berg added that the courts will have to address how religious-freedom critics have framed the issue by claiming that religion does not give a right to harm a third party. But it is a “complex question” because the cases involve people who freely seek employment at a school with its own expectations.

“If someone choses to associate with a Catholic school as an employee and carry out the school mission, we shouldn’t assume then that the school loses the ability to require that those employees follow the tenets of the organization,” he said.

However, religious schools and other entities are likely to face pressure from another source in these disputes: their own policies. Berg noted that Drumgoole had appealed to the school’s own anti-discrimination policy to infer that the moral expectations set out by her employer were waived when they came in conflict with the anti-discrimination language contained in the policies.

“Claims based on a policy shows the plaintiffs in these cases will try to exploit any ambiguity in the school’s policy,” Berg said. He added religious entities need to be clear in disclosing what those policies are, but they will likely face increasing pressure and scrutiny over whether those policies were clear and consistently applied.

 

What Would Jesus Do?

The archdiocese and the high school have come under fire from Paramus Catholic alumni who charged the decision to fire Drumgoole amounted to promoting hatred against people who identify as “lesbian, gay, bisexual, transgender and queer” in the “Open Letter to the Administration of Paramus Catholic High School.”

The letter, signed over the course of three days by more than 3,800 supporters, including more than 2,200 Paramus Catholic alumni, demanded that Paramus Catholic President Vail issue a formal apology to Drumgoole and the high- school students and then ban employment and student discrimination based on “biological sex, sex assigned at birth, gender identity, gender expression, sexual attraction, romantic attraction and marriage status” and establish “diversity workshop training” for administrators, teachers and students.

The letter accused the school’s president of spreading “misinformed hate” against people on the basis of gender and sexuality. It indicated his decision to fire Drumgoole denied “a psychologically safe learning environment” for students who identify with the opposite sex of their birth and was opposed to “Jesus Christ’s teaching to love one another.”

That particular charge seemed in mind when Archbishop Myers stated the Catholic Church teaches that all persons should be treated with mercy, dignity and respect. But he added it was a mistake to confuse the “Church’s position of welcoming sinners (for we are all sinners) with the notion that we accept teaching and lifestyles contrary to the principles of our faith that can create scandal in our Church.”

“Even Jesus recognized that some people could not or would not accept his teaching,” the archbishop said. “He was saddened when they walked away from him, but he never altered his teaching. Nor shall we do so today.”

 

Peter Jesserer Smith is a Register staff reporter.