Here’s the news story: Federal Court Dismisses Lawsuit Against Indianapolis Archdiocese. Lynn Starkey worked for a Catholic high school for 40 years; she was a guidance counselor since 1997, and co-director of guidance since 2007. She was fired in 2018 for marrying a woman. She sued. Recently, the federal court dismissed her lawsuit based on the ministerial exemption. This exemption allows religious organizations, including schools, to hire and fire persons who are ministers, for reasons related to their religious beliefs. A priest or deacon can be fired for not upholding the Catholic faith. That makes sense.
Attorneys for the school argued: “Catholic schools exist to teach the faith to the next generation, and they can’t do that effectively if the law forces them to employ teachers who oppose core aspects of the Catholic faith.” The attorneys also stated that the first amendment to the Constitution favored their side of the case: “The court ruled in favor of the archdiocese based on the ‘ministerial exception’ — a First Amendment doctrine that protects the right of religious groups to choose their key personnel without government interference,” Goodrich stated.
What’s wrong with that argument? First, the Catholic Church has over a billion members, and She always many members, including prominent lay persons, priests, Bishops and occasionally Cardinals who disagree with the teachings of the Church by the highest teaching authority: Popes and Ecumenical Councils. So it is rather absurd to claim that a guidance counselor, who does not teach religion at all, harms the ability of the 2000 year old, one billion plus member, worldwide Catholic Church by marrying a woman in her private life outside of the school. She is not accuse of teaching any religious error. She is not accused of heresy — a crime for which the Church in past ages burned persons at the stake for the same reason given by the attorneys, to protect the faith. The idea that she is standing in the way of the Church’s first amendment rights by availing herself of a legal contract is patently ridiculous.
Then the claim that she is a minister is not so much deserving of ridicule as it is deserving of condemnation as a blatant lie. Lynn Starkey was not a minister in the Catholic Faith. She was a guidance counselor. She was not tasked with spiritual guidance, but with the ordinary role in any secular school of a guidance counselor. She had no role at Mass in any parish in the diocese. She did not teach religion. She would not be able to enter a parish in the diocese and read the Scriptures or administer holy Communion or teach the children’s religion classes. She did not so much as have the role of cleaning the church after Mass. This extension of the ministerial exemption to non-Catholics who work at a Catholic school in a non-religious role is absurd; it is a patent lie that courts have chosen to pretend to believe, rather than rule against an organization with much power and influence.
A large multinational corporation goes to court against an individual plaintiff (or respondent) without his or her own attorney. Who will win? Courts have a bias in favor of large organizations with plenty of money for attorneys as opposed to an individual person with a single attorney. It’s an unconscious bias, but it has a real effect. Courts are reluctant to issue earth-shattering rulings against large organizations. And a ruling against the ministerial exemption would be very substantial. But it is also necessary to protect fundamental human rights: freedom of religion, due process, equal protection.
And it doesn’t matter that the Church teaches, correctly, that same-sex marriage is not a type of natural marriage and not a type of the Sacrament of marriage. It is a legal contract in the U.S. and citizens have a legal right to avail themselves of that type of contract, regardless of the religious beliefs of their employer. The idea that an employer would be able to prevent persons from entering into a legal marriage because of the employer’s religious beliefs is oppression, not freedom of religion. “You may not marry” or “We will fire you if you marry” because “your marriage harms our freedom of religion, our ability to preach against same-sex marriage.” Essentially, the court has ruled that Lynn Starkey must help the Church preach against same-sex marriage, by either refraining from that legal activity or by leaving her job.
And Lynn Starkey is not a minister. The main problem here is that this ministerial exemption has been extended by Catholic schools to everyone who works for the school, even those who have no role in teaching religion, even non-Catholics. Catholics schools are deliberately and knowingly hiring non-Catholics. They then require them to sign a contract which forces them to adhere to the Catholic faith, at least in their public lives. And if they do not live as if they were Catholic, despite being knowingly hired as a non-Catholic employee, they are fired.
Well, that is true in theory, but not in practice. A Catholic or non-Catholic employee of a Catholic school, and even a priest, deacon, religious, or lay leader in a parish, can openly contradict the Catholic faith, verbally attack the Roman Pontiff, reject the recent Ecumenical Council of the Church (Vatican II), and in other public ways contradict the Catholic faith, and not be fired by the Bishop. The only time that the ministerial exemption is used to fire an employee is if the person contracts a same-sex marriage. As a result, employees of Catholic schools can contradict Catholic teaching: by divorce and remarriage, by using IVF, and even by leaving the Catholic faith for another religion, and not be fired. One of the few, if not the only, ways to be fired under the ministerial exemption is if you contract a same-sex marriage. It is not really a ministerial exemption, but a same-sex marriage exemption. The Church is asking the Courts to carve out a section of society that cannot access same-sex marriage, so that Catholic schools can pretend that gay persons do not exist or at least that they cannot marry.
Note that in a case discussed here, a woman was fired from a Catholic school for using IVF. Usually, a firing would not occur in such cases because the school has no way of knowing that a person uses IVF unless they inform the school. Nevertheless, it is true that the most common use, and for some dioceses the only use of the ministerial exemption by schools is for gay marriage.
Selective Application of Contract Terms
You live in a housing development, run by an HOA (Home Owner Association). There is a rule against parking commercial vehicles in the driveways of these homes. But two of your neighbors have been parking commercial vehicles, with commercial plates, in their driveways, and the rules were not enforced for them. Then you park a large van for your pest elimination business, with a large picture of a cockroach on the side. People complain. The HOA enforces the rule in your case, but not in the case of your neighbors. In court, you should win your case. Rules cannot be applied selectively.
A school cannot have a rule against crop t-shirts, and only apply that rule to black students. A school cannot have a rule against shirts with political slogans, and only enforce the rule for slogans they dislike. And a school cannot require its employees to refrain from any public behavior that contradicts the Catholic Faith, and only enforce the rule for gay employees, never for straight employees.
The contracts used by Catholic schools to build the ministerial exemption into the signed agreement with employees are not enforced for any public behavior contrary to Catholic teaching other than same-sex marriage. That type of selective application of a rule is unjust and patently discriminatory.
Forced Religion and Hypocrisy
The Catholic Church is violating its own laws by its misuse of the ministerial exemption. Church law states the following:
Can. 748 §1. All persons are bound to seek the truth in those things which regard God and his Church and by virtue of divine law are bound by the obligation and possess the right of embracing and observing the truth which they have come to know.
§2. No one is ever permitted to coerce persons to embrace the Catholic faith against their conscience.
The first paragraph above means that a person has a right to freedom of religion. This was taught at length in the Second Vatican Council, in the document Dignitatis Humanae. The title means “the dignity of the human person”. The Council declared a fundamental human right to freedom of religion as part of the broader dignity of the human person. People have a right to embrace and observe what they believe to be religious and moral truth. They are not to be coerced to accept what the Catholic Church says is truth. And it doesn’t matter who is objectively right about those truths; people have a right to follow their conscience, even if they are sincere but mistaken.
If you believe that same-sex marriage is a human right and is acceptable and good before God, then (where it is also legal) you should be free to marry a person of the same sex. That is a part of freedom of religion. The idea that an employee of a Catholic school would be fired for following their conscience on religious and moral truth, in a behavior that is legal throughout the nation, is contrary to Catholic teaching. Yes, the Church does not approve of same-sex marriage as a Sacrament in the Church, nor as a type of “natural marriage”. However, the Church also teaches that people have a fundamental human right of freedom of religion.
And this extends so far that the Catholic Church has a law prohibiting anyone from being coerced to embrace the Catholic faith against their conscience. And yet that is what Catholic schools are doing throughout the U.S. They knowingly hire non-Catholics, and then they coerce them into following Catholic teaching, against their conscience. Catholic school employees lose their right to freedom of religion, and are forced to adhere to Catholic doctrine — so much so that their legal right to marry is prohibited to them, unless they wish to quit or be fired from their job.
This contract term, enforced by multiple Catholic schools across the nation, is contrary to Church law and contrary to the teaching of Vatican II in the document titled “The Dignity of Human Persons”. It is indeed contrary to the dignity due to all human persons to coerce them to adhere to the tenets of a religion that they do not follow.
And this should apply just as much to Catholic employees as to non-Catholic employees. A Catholic school should not be permitted to deprive even Catholic employees of their livelihood, simply because the employee has a different understanding of Catholic doctrine, of morality, or of marriage. For it often happens within the Church herself that successive Popes disagree (e.g. Pope Francis nullified the document of Pope Benedict XVI on the Latin Mass), Cardinals and Bishops disagree (e.g. Cardinal Ouellet wrote a letter rebuking Archbishop Vigano), priests and theologians disagree. It is even the case that some lay persons openly disagree with the Roman Pontiff and have accused him of heresy (e.g. Open Letter). Catholic politicians can vote in favor of abortion and speak in favor of abortion rights and still receive holy Communion from the Bishop of their diocese. Then those Catholic politicians who support same-sex marriage and who voted for it, still receive Communion and have been given no penalty whatsoever from any Bishop. Then, in the case of President Biden, he officiated at a same-sex marriage — an offense in the Catholic faith worse than contracting a same-sex marriage — and yet no penalty was issued against him. And this occurred when he was Vice President, not President.
In response to all of the above very public and substantial disagreements with Catholic teaching, by prominent influential Catholics, the Church did nothing. No action was taken against them. But Lynn Starkey and other employees of Catholic schools must lose their jobs because the way they live their lives supposedly undermines the ability of the Catholic Church, or specifically the Archdiocese, to teach its beliefs.
And the issue here is not that the school has a ministerial exemption. Schools have no ministers. The ministerial exemption applies to religions, and the school claims access to that exemption by its close association with the Catholic religion. So the basis for the use of this exemption is whether the action by the school employee interferes with the freedom of religion of the Catholic Church. The lawyers for the school said this is a part of the First Amendment right of the Catholic Archdiocese. It must be free to choose its “key personnel” in order to practice its religion. But that is a false claim. A guidance counselor or a math teacher are not key personnel in a religion. If they do their respective jobs well, the children benefit and the religion is in no way harmed by the way the teachers live their lives outside of the school.
The Catholic Church can take religious actions against Catholics who fail to live up to Catholic teaching, such as denying them Communion, or excommunication, or laicization of ordained persons. But as a matter of fact, priests who speak openly against the teachings of the Church by Pope Francis and by Vatican II are not penalized, even though they are Catholic ministers.
Thus, it is both highly selective, to fire a non-Catholic employee of a school for marrying someone of the same sex, as well as a type of coercion of religion. And the number of persons affected by this injustice is not small. This is not an isolated case. Catholic schools generally choose to employ non-Catholics as a matter of course. They make no attempt to hire only those persons who adhere to the Catholic Faith. Then they coerce those non-Catholic employees to follow the Catholic faith in their public behavior, only on certain issues. For the most part, the exemption is applied on this one issue of same-sex marriage.
The First Amendment to the Constitution guarantees freedom of religion. The Supreme Court of the United States ruled that “the Constitution’s guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages.” [Source]. But under the ministerial exemption, Catholic dioceses can ban same-sex marriage and coerce their non-Catholic employees to adhere to certain Catholic teachings in their public lives, denying those employees freedom of religion and the right to due process and equal protection. They lose that protection by being “ministers”.
Who is a Minister?
Under Church law, ministers are usually ordained persons. The non-Catholic employees being fired from time to time at dioceses around the U.S. are not ordained. Here is the section of Canon Law on Ministers. Then Canons 230 and 231 describe certain ministerial roles for lay persons: reading the Bible at Mass (“lector”), serving at the altar next to the priest (“acolyte”), and “to exercise the ministry of the word, to preside over liturgical prayers, to confer baptism, and to distribute Holy Communion” (Can. 230 n. 3). The persons being fired from Catholic schools do not fit any of the descriptions of ministers in Church law.
These persons are called ministers, but they are guidance counselors, math teachers, chemistry teachers, history teachers, and other clearly non-religious roles. If a guidance counselor, even the co-director for guidance at a Catholic school, showed up at Mass and wanted to read the Bible, preach a sermon, distribute Communion, or teach adult or child religious education classes, they would literally be laughed out of the church. They in fact have no ministerial role in the dioceses.
Lectors and ministers of holy Communion are given training, and there is a ceremony admitting them to those roles. Their names are published by the parish or diocese as persons with those ministerial roles. Some parishes gather their religious education teachers at a particular Mass, and the priest blesses them. Ordained ministers — Bishops, priests, deacons — take vows or promises of chastity, poverty, and obedience. Calling a guidance counselor or a math teacher a minister is just a lie. They have no role of ministry in the diocese.
I have a degree in theology. I’ve translated the entire Latin Vulgate Bible into English (SacredBible.org). I’ve written over three dozen books and booklets of Catholic theology. And yet I’m not a minister in my parish or diocese. So it confuses me as to how a guidance counselor or a math teacher could be considered a minister. Do they have any role in the local parishes? No. Do they work at the diocesan offices? No. Can they preach? No, even priests need permission to preach from their Bishop. Can they distribute holy Communion? Not if they are non-Catholics. Not unless they are Catholics who apply for that role, are accepted, and are trained.
The claim that a non-Catholic with no role whatsoever touching on religion should be considered a minster is an abuse of the ministerial exemption. Bishops should be permitted to fire a Catholic priest who marries (anyone), in violation of his vow or promise of chastity. Bishops should not be permitted to fire non-Catholic teachers of non-religious subjects for contracting a legal marriage, which the courts in the U.S. have found to be part of the constitutional right to due process and equal treatment. And it is a blatant denial of freedom of religion to coerce non-Catholic employees of a Catholic school system to adhere to the Catholic faith in their public lives.
Obviously, a non-Catholic is in no sense a minister of the Catholic religion. The ministerial exemption is being misused to a severe extent. And it is inexplicable as to why judges have not yet struck down this type of employment contract clause and misuse of the ministerial exemption. I suppose no judge wants to be the one who issued an earth-shattering decision against the Catholic Church in the U.S.
Discrimination against Gay Persons
Teacher contracts of this type state that all employees are required to refrain, in their public lives, from contradicting Catholic teaching. This is stated with different wording in different dioceses. But it is always stated broadly, as applying to all public acts contrary to the Catholic faith and to all employees. But it is never applied broadly. It is only ever enforced on gay persons who marry a person of the same sex. A straight employee who divorces, without an annulment from the Church, and then remarries is not fired. An employee who obtains a child by IVF is not fired. A priest who speaks out against the Pope, accusing him of heresy or idolatry is not fired. No public behavior by any actual ministers (clergy and lay persons with specific training and titles in parishes) results in any action against them from the Bishop or the school system — except gay persons who marry.
So the clause of the contract as it is written does not appear to be discriminatory. But its application is solely to gay employees who marry. Straight employees can safely ignore that clause entirely.
The Catechism of the Catholic Church states the following in the section titled “Chastity and homosexuality”
“2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God’s will in their lives and, if they are Christians, to unite to the sacrifice of the Lord’s Cross the difficulties they may encounter from their condition.”
The Church wishes gay persons to refrain from all sexual activity and to never marry a person of the same sex. That is the right of the Church, under the first amendment, to teach whatever the Church wishes to teach. And it is the right of U.S. citizens to believe and follow that teaching, if they wish. But the Catholic Church lacks the legal authority in the U.S. to impose this teaching on gay persons and to prevent them from marrying.
This discriminatory use of the ministerial exemption contradicts the above Catholic teaching that gay persons must be free from “unjust discrimination”. Instead, Catholic schools use the ministerial exemption solely to prevent gay employees from marrying, and not to enforce any other aspect of Catholic teaching in public behavior. The way the clause is written, it openly states coercion to follow Catholic religion very broadly, contradicting the first amendment. But the way that it is applied, is to only prevent gay persons from marrying. All other behaviors contrary to Catholic teaching, public or private, are ignored.
This reaches to such an extent that Catholic schools often hire and retain teachers whom they know to be gay, and sometimes even whom they know to be living with a person of the same sex as their partner. The school does not enforce the clause of the contract requiring persons to adhere to Catholic teaching in their public lives, even for gay cohabitating employees, unless they marry.
The sole application of the contract clause restricting public behavior that contradicts Catholic teaching is against gay persons who marry. No one else is restricted in any way in any behavior under that clause. That is discrimination.
Do Catholics Have Freedom of Religion?
Will the U.S. Courts force Catholic citizens to adhere to the decisions of Catholic Bishops and the Catholic Church, or will the Courts allow Catholic citizens to adhere to their own understanding of religion and morals? If a Catholic disagrees with a Catholic teaching, such as the teaching against cohabitation or divorce and remarriage or same-sex marriage, should the U.S. Courts force Catholics to follow Catholic teaching? Should the Courts refuse to hear these types of cases, and permit Catholic Church leaders to coerce Catholics to follow their teachings and decisions? Or should the Courts protect the right of freedom of religion, due process, and equal protection under the laws, even to the extent of preventing Catholic Church leaders from penalizing Catholics who disobey a teaching or a ruling of the Church (except in so far as the penalties are solely within the religion itself)?
My position is the latter. Catholics have a duty under faith and morals to believe and practice the Catholic Faith, and the Church should penalize those who refuse, in grave matters, especially publicly. But that applies only within the Catholic Church. As far as secular society is concerned, Catholics should be afforded the full measure of freedom of religion and freedom of conscience as given to any other citizen or resident of the U.S. — even if a particular Catholic decides to depart from a Catholic teaching or ruling based on his or her own conscience or own understanding of religion.
Otherwise, the Courts would have to abandon citizens who are Muslim to Sharia law, and also abandon citizens who belong to fundamentalist “Christian” congregations to the vagaries of their leadership. I know that, to some extent, Courts have already ruled that some persons are under the religious rules of their own religion. But I disagree with those rulings. The rights and freedoms of the U.S. Constitution should not be restricted or watered down by the entirely arbitrary rules that can be devised by anyone claiming to be a religious leader or to represent a religious community. The Courts cannot authorize only certain religions to have this authority over their members, to deprive them of fundamental rights. If the Courts then rule that any citizens are under Catholic Church law or Sharia law or the laws of a very small fundamentalist group, there is no real basis for distinguishing one set of religious laws from another. And the end result is a type of ownership of the human person by the religion.
Do Catholic teachers in a Catholic school system who teach religion — which is one of the strongest examples of the ministerial exemption — have the right to marry a person of the same sex? Yes, they have a legal right to do so, under the U.S. Constitution. It is against Catholic teaching, and so the Church can issue a penalty within the religion, such as denial of Communion or excommunication or laicization. But under U.S. constitution and law, the same rights should apply equally to everyone. Therefore, I think the Courts should strike down the ministerial exemption, with the sole exception of ordained (or otherwise formally enrolled) ministers and those directly engaged in a religious ceremony or other religious activities within a religious sanctuary. Catholic schools should not be permitted to fire Catholic teachers, even those who teach religion, for not following the Catholic faith in their public lives. The only requirement should be that these teachers, while teaching the students, present the material as the school system and the diocese decides.
The reason that the ministerial exemption should not be applied to public behavior of teachers of religion in Catholic schools is that it deprives Catholic citizens of rights afforded to all other citizens. The right of the Church to teach its own belief system to its members is fulfilled by requiring teachers of religion to teach what the Church, the Bishop, and the school wish to be taught. It is not necessary for the school to control the behavior of the teacher, even one who teaches religion, outside of the school day. Do the children think that gay persons do not exist? Or do the children not realize that same-sex marriage is legal? Should they not be taught these facts of the state of our society?
Teachers of any subject should not tell the children about their private lives. A math teacher should not be telling his students about his divorce. A history teacher should not be telling her students about her problem with her children. It is well-known that sometimes Bishops and priests behave in a way that is contrary to Catholic teaching. But the religion continues to exist. There is no existential threat to the Catholic faith if a teacher of any subject, even of religion, were gay and married.
So the government interest in protecting the First Amendment rights of the teachers to live according to their own religious and moral beliefs, within the laws of the U.S., is greater than the value of the ministerial exemption in this case. For allowing teachers to live their lives as they see fit does no real and substantial harm to the Catholic Church. Scandals often arise with Bishops and priests, and the Church often does not fire them. Catholics speak out against the Pope, and they are not penalized. So it is a far lesser matter for a religion teacher to go against Catholic teaching in their life outside of the school. In this case, the ministerial exemption should be limited to the school’s ability to require the teachers of religion to teach the material approved by the Church, the Bishop, and the school. Extending the school’s authority over religion to control of the lives of the teachers is first of all not a principle or law in the Catholic Faith, and is, secondly, contrary to equal treatment under the laws, due process, and freedom of religion for the teacher.
Arbitrary and Insincere
The rule that teachers must adhere to Catholic teaching in their public lives outside of the school is applied arbitrarily by the dioceses of the United States. Teachers of religion in Catholic universities are permitted to speak out against any teaching of the Church, and even to sign petitions and open letters against the Pope, usually without any firing or other action being taken against them. Priests are often able to speak against the teaching of the Church, without penalty. Teachers in K-12 schools are able to violate any teaching of the Church in their public or private lives, except same-sex marriage.
If this were truly a sincere application of the ministerial exemption — whose purpose is to protect the first amendment rights of religions — then the religion would apply this contractual restriction as it is written, to every public expression contrary to Catholic teaching. They do not. A gay person can cohabitate with their lover for years, with the full knowledge of school officials and students. But if that person then marries their live-in lover, they are fired. This is clearly not a way to protect the religious doctrine of the Catholic Church, since many different doctrines can be violated without any fear of firing.
Instead, the firing of gay employees of Catholic schools who marry is an arbitrary and insincere application of the ministerial exemption. It is not exercised to protect the freedom of religion of the Catholic Church.
What Is Catholic Teaching?
It is well-known that within Catholicism today, Catholic Bishops, priests, theologians and many of the laity more generally argue about what is and is not a correct understanding of Catholic teaching. And this applies to issues of faith as well as morals. Those persons who disagree with the common theological position on an issue, or who propose a different understanding than the traditional view, are not cast out of the Church as heretics, as in past centuries. The Church permits a broad discussion of what is and is not a correct understanding of its doctrine. The Church does not view disagreement as harmful to Her ability to teach and preach the Faith.
So then, how can a teaching contract contain a clause that requires the teachers to adhere to Catholic teaching in their public lives, when persons in the Church with far greater expertise than a guidance counselor or a math teacher (or even a high school religion teacher) cannot agree on what is and is not correct doctrine? This fact that almost every teaching of the Catholic Church is a matter of dispute, to one extent or another, makes these types of contracts in teaching contracts arbitrary to enforce and impossible to comply with — except for the fact that such clauses are never enforced, except in regard to same sex marriage.
Why don’t the dioceses simply put a clause in the contract, denying the right of gay teachers whom they hire to marry? That is what the clause means, for all intents and purposes. But such an honestly worded contract clause would be struck down before the ink were dry. It in no way harms the freedom of religion of the Catholic Church to have Catholic schools hire non-Catholics who are gay and married.
But if the school would like to only have believing and practicing Catholics as teachers in their school system, why don’t they only hire believing and practicing Catholics? The reason is that there are not enough believing and practicing Catholics, who are also qualified as teachers, to fill every position. Therefore, due to the failures of the Catholic Church to convince its own members to abide by its teachings, the Church must then hire non-Catholics and coerce them to live as if they were Catholics. And that is fundamentally unjust and contrary to the rights of those teachers, including teachers who are Catholic and who teach religion.
The ministerial exemption, properly understood, is not designed to allow a religion to compel non-members to follow its teachings, especially when most members of that religion do not follow its teachings. The ministerial exemption has become a tool of oppression and discrimination. On the absurd pretext that a guidance counselor, a math teacher, or a chemistry teacher is a religious minister, teachers who have served the school system faithfully and without any complaints for as many as 40 years are summarily fired for exercising the same legal rights as any other citizen. This type of firing in no way benefits the freedom of religion of the Church, and is at the same time a grievous denial of that same first amendment right to the teachers in Catholic schools.
I hope that the U.S. Supreme Court will eventually hear this type of case and will strike down this misuse of the ministerial exemption.
* Is It Against Canon Law For Catholic Schools To Require Non-Catholic Employees To Obey Catholic Teaching?
* Dear SCOTUS, a Math Teacher is not a Minister
* The Limits of Church Authority in Catholic Schools
* Are some Catholic School Teacher Contracts hypocritical, immoral, or illegal?
* Archbishop Cordileone: Whitewashing the Tombs
Ronald L. Conte Jr.