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Music Director Barred from Suing Catholic Church For Hostile Environment Harassment Under Anti-Discrimination Laws

Posted on: July 11th, 2021 by Art Leonard No Comments

A ten-judge bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 9 by a vote of 7-3 that the religion clauses of the 1st Amendment of the U.S. Constitution give churches total immunity from hostile environment claims by their ministerial employees.  Demkovich v. St. Andrew the Apostle Parish, 2021 U.S. App. LEXIS 20410, 2021 WL 2880232 (7th Cir. en banc).

Rejecting a decision by a three-judge panel of the court that Sandor Demkovich, the gay former Music and Choir Director and Organist at St. Andrew the Apostle Parish in Calumet City, Illinois, could bring a hostile environment claim against the church under the Civil Rights Act of 1964 and the Americans with Disabilities Act, the en banc court held that allowing such claims would violate the religious autonomy of the church protected by the religion clauses of the 1st Amendment.  Judge Michael Brennan, appointed by President Donald Trump, wrote the court’s opinion.

The 7th Circuit is among the most Republican-dominated of the federal appeals courts.  Of the eleven active members of the Court, eight were appointed by Republican presidents (four by Trump).  President Joseph Biden’s first appointee to the court, Judge Candace Jackson-Akiwumi, was only recently confirmed by the Senate and did not participate in this case.  One of President Trump’s appointees recused himself, and a senior (retired) judge appointed by Ronald Reagan, Joel Flaum, who was the dissenter on the three-judge panel, was entitled under 7th Circuit rules to participate.

Judge David Hamilton, appointed by Barack Obama, wrote the panel decision and the dissenting opinion, joined by Judge Ilana Rovner, a moderate appointed by George H. W. Bush in 1992, who was the other member of the three-judge panel majority.   Judge Diane Wood, appointed by Bill Clinton, joined the dissent.

Demkovich was hired in September 2012.  His supervisor was Reverend Jacek Dada, a priest who is the church’s Pastor.  According to Demkovich, who has various physical disabilities, Dada was constantly subjecting him to verbal abuse because of his sexual orientation and his disabilities, adversely affecting his physical and mental health.  In 2014, after Illinois had legislated to allow same-sex marriages, Demkovich let the church know that he planned to marry his same-sex partner.  Dada told him that he had to resign from the church because his marriage would violate Catholic doctrine.  When Demkovich refused to resign, Dada fired him.

Demkovich sued the St. Andrew church and the Archdiocese of Chicago under Title VII of the Civil Rights Act and the Americans with Disabilities Act, claiming that his discharge was unlawful discrimination because of his sexual orientation and disabilities.  The church moved to dismiss the case, citing the “ministerial exception” under the 1st Amendment, and the district court granted the motion, determining that Demkovich was a “ministerial employee” under the Supreme Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171.  In Hosanna-Tabor, an ADA case involving a school teacher, the Supreme Court ruled that it would violate the 1st Amendment to allow a ministerial employee to challenge their discharge in a federal court, because religious institutions have an absolute right under the Free Exercise Clause to decide whom to employ as ministers without any interference from the courts.  Under Hosanna-Tabor, the district court’s decision to dismiss Demkovich’s unlawful discharge claims was undoubtedly correct.

Demkovich came back to court with an amended complaint, alleging that he was unlawfully subjected to a hostile environment by Dada, his supervisor, because of his sexual orientation and disabilities.  Again, the church invoked the “ministerial exception” and moved to dismiss. District Judge Edmond E. Chang decided that Hosanna-Tabor, a discharge case, did not necessarily apply to a hostile environment claim, drawing a distinction, as the San Francisco-based 9th Circuit Court of Appeals had previously done in a similar situation, between tangible and intangible employment actions, finding that the exception applied only to the former.

Judge Chang held that the proper approach in a hostile environment case was to balance the church’s religious freedom concerns with the employee’s statutory anti-discrimination rights, taking into account the nature of the employer’s conduct and the reasons for it.  Based on this “balancing of rights,” Chang dismissed the sexual orientation claim but refused to dismiss the disability claim, distinguishing between hostility that could be motivated by religious doctrine and hostility that had no basis in religious doctrine.  Demkovich v. St. Andrew, 343 F. Supp. 3d 772 (N.D. Ill. 2018).

But Chang then certified a request by the church to have the court of appeals consider the issue before the case went further.  Last summer, the Supreme Court issued another ministerial exception decision, Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which took a broader view of the definition of a ministerial employee in the context of religious schools. This case also involved two teacher discharges, allegedly in violation of the ADA and the Age Discrimination in Employment Act.

The three-judge 7th Circuit panel ruled in 2020 that Demkovich should be allowed to litigate both of his hostile environment claims, finding that the reasoning behind Hosanna-Tabor did not require a dismissal in a case such as this, following the lead of the 9th Circuit.  See 973 F. 3d 718 (7th Cir. 2020).  The church then petitioned the 7th Circuit for rehearing en banc.  The 7th Circuit vacated the panel decision, heard arguments before a panel of 10 judges earlier this year, and issued its July 9 decision holding that Judge Chang should have dismissed the case completely.

In his opinion for the court, Judge Brennan, while acknowledging that the Supreme Court’s two precedents, Hosanna-Tabor and Guadalupe, both involved discharges of religious school teachers, found various statements in those decisions that he said could be construed to have embraced more general principles that the courts should not be interfering in any personnel-related disputes between religious institutions and their ministerial employees.  He drew two “principles” from the Supreme Court’s decisions: “The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between.  Second, we cannot lose sight of the harms – civil intrusion and excessive entanglement – that the ministerial exception prevents.  Especially in matters of ministerial employment, the First Amendment thus ‘gives special solicitude to the rights of religious organizations,’” quoting from Hosanna-Tabor.

Brennan pointed out that in a hostile environment case, discovery could be wide-ranging, and would involve an inquiry into the reasons why, in this case, the priest in charge was treating the music director – both ministerial employees because of the role they play in the religious life of the church – in a particular way. To the majority of the en banc court, this would raise the specter of judicial interference in matters of religion, regardless whether the claim arose under Title VII or the ADA.  The court found that a central theme of the Supreme Court and lower federal court rulings involving discrimination claims by ministerial employees was that churches must enjoy autonomy in making personnel decisions about their ministerial employees, whether they could be characterized as tangible or intangible actions.

“Demkovich’s hostile work environment claims challenge a religious organization’s independence in its ministerial relationships,” wrote Brennan.  “A judgement against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers.”  While the employment discrimination statutes have been interpreted to hold employers liable for fostering a discriminatory employment atmosphere, Brennan wrote that the Supreme Court’s ministerial exception cases “teach that ministerial employment is fundamentally different.”  And, he continued, “Just as a religious organization ‘must be free to choose those who will guide it on its way,’ so too must those guides be free to decide how to lead a religious organization on that journey,” once again quoting from the Hosanna-Tabor opinion.

Judge Hamilton’s dissent began by noting that the Supreme Court’s ministerial exception cases all involved discharge decisions, not hostile environment claims, and that federal circuit court and state courts are “split on the question before us,” noting not only the 9th Circuit’s prior rulings, but also several district court decisions.  He insisted that “the majority’s rule draws an odd, arbitrary line in constitutional law,” and argued that “the line between tangible employment actions and hostile environment fits the purposes of the ministerial exception.”

He accused the majority of departing “from a long practice of carefully balancing civil law and religious liberty,” and pointed out the severe consequence of holding that religious employers would be immune from any liability for mistreating their employees under anti-discrimination laws.  “We know that people who exercise authority within churches can be all too human,” he wrote.  “Casebooks and news reports tell us of cases of sexual harassment by ministers, sometimes directed at parishioners, sometimes at non-ministerial employees, and sometimes at other (typically less senior) ministers.  In briefs and oral argument, defendants have acknowledged that a religious employer could be held civilly liable for a supervisor’s criminal or tortious conduct toward a ministerial employee. . .  Such cases would not violate the supervisor’s or the employer’s First Amendment rights.  If criminal or tort cases do not, then it is hard to see why a statutory case based on the same conduct would necessarily violate the First Amendment, whether or not the supervisor claims a religious motive.”

“The hostile environment claims before us present a conflict between two of the highest values in our society and legal system: religious liberty and non-discrimination in employment,” wrote Hamilton.  “The Supreme Court has not answered this question, nor does the First Amendment itself.  Circuits and state courts are divided.  For the reasons explained above and in the panel majority, I submit that the majority’s absolute bar to statutory hostile environment claims by ministerial employees is not necessary to protect religious liberty or to serve the purposes of the ministerial exception.”

The next step for Demkovich could be to file a petition for review with the Supreme Court.  Depending on the details of his factual claims, he might try to pursue a state court tort suit for intentional infliction of emotional distress against Jacek Dada individually, but it is possible that it would be barred by the state statute of limitations, since all the conduct at issue took place in 2012-2014.

 

Unanimous 7th Circuit Panel Strikes Down Wisconsin and Indiana Same-Sex Marriage Bans

Posted on: September 4th, 2014 by Art Leonard No Comments

Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059  (September 4, 2014), striking down the bans on same-sex marriage in those states.  Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change.  Both states promptly signified that they would petition the Supreme Court for review.

Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis.  His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition.  And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States.  But at a deeper level, as we shall see, they are about the welfare of American children.  The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.  Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest.  Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route.  That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.

Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments.  When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues.  He cuts to the chase and calls ’em as he sees ’em.  Herewith some choice examples:

“Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.  Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . .  Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.  Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.  At least we think they’re distinguishable.  But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not.  He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”

Nothing like enlisting Scalia on your side in a gay rights decision. . .

After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed:  “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage.  Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage.  He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers.  “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive.  The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’?  The state recognizes that family is about raising children and not just about producing them.  It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”

He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children.  “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).  Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.  If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.  Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”

Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban.  “Tradition per se has no positive or negative significance,” he wrote.  “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween).  Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”  He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”  Posner helpfully added that the English King Henry IV died in 1413.  To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”

Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.”  “But suppose the assertion is correct?” he asked.  “How does that bear on same-sex marriage?  Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’  Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?  Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”

As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.”  He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban.  Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.

As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts.  The marriage amendment passed in Wisconsin would surely argue otherwise.  Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation.  While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.

With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8.  Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion.  (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.)  Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana.  On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state.  There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order.  The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending.  The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006.   The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean.  But one dissenting circuit would virtually guarantee Supreme Court review.

Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General.  It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage.  Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?