The Archdiocese of Chicago Defends Harassment

Sandor Demkovich brought a lawsuit against St. Andrew the Apostle Parish and the Archdiocese of Chicago, alleging that he was subject to harassment based on his disabilities and sexual orientation. He had worked as a music minister at the parish but was fired after his marriage to his same-sex partner. During oral arguments, the attorney for the Archdiocese laid out the Church’s position on First Amendment protections and the ministerial exception, arguing at various points that racist behavior should be protected in Church employment contexts.

The audio for the oral argument can be found here. I have also transcribed much of the argument below. It’s worth review from those watching the Church’s approach to religious liberty.

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Judge Rovner: Let’s say that an African American man is hired as music director and his supervisor is a bigot. The supervisor uses racial epithets, tells him that a black person has no business in the Church, hangs a noose over the music director’s desk. You get the idea. Would you still be invoking the ministerial exception, even if in the Ninth Circuit… case the Church disavows such behavior? Or suppose a woman is hired for the position, and she is verbally and physically harassed on a daily basis. The exception would still apply in your view? 

Archdiocese Attorney: Well, I don’t think the ministerial exception would necessarily would apply if somebody hung a noose over the desk. That’s a threat of physical violence, and it would not apply to bar such a claim. 

Judge Hamilton: It’s a claim brought under Title VII.

Archdiocese Attorney: Yes. It would. Yes, it would. And the reason is this. It has to do with the structure of the law. The claims brought under Title VII exist solely by virtue of the decision to retain the minister in the first place. Allowing claims brought under Title VII burdens that choice. It actually burdens the selection of the minister. And although there may be some cases were one might imagine less intrusion into the Church’s management, discipline, and control of its ministers, as a whole, as a category of cases, allowing those cases to proceed invites that kind of intrusion. The cases on which — 

Judge Rovner: Does the Archdiocese have a workplace code of conduct or a non-discrimination policy?

Archdiocese Attorney: Some churches do. And the Archdiocese has policies of that nature. But as the cases hold, the ministerial exception is not waivable. It is a barrier to the Court acting. And, again, because the employment–

Judge Rovner: Was the conduct that was alleged here consistent with the Archdiocese’s policy?

Archdiocese Attorney: I don’t know that the Archdiocese has a policy regulating the kinds of words a pastor might use to discuss the physical fitness, the weight…

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Archdiocese Attorney: The discipline imposed by a superior-minister over a subordinate can include care for that person.

Judge Hamilton: Can it include corporal punishment? 

Archdiocese Attorney: No. It’s an act of violence. And the ministerial exception does not apply to claims outside the employment discrimination laws, such as battery, a tort. It’s a good example of the distinction. 

Judge Hamilton: So Judge Rovner asked you a few minutes ago about a case of a sexually hostile environment which includes unwelcome touching. 

Archdiocese Attorney: And the answer is that an unwelcome touching that is litigated as a battery would proceed on its merits.

Judge Hamilton: As a tort.

Archdiocese Attorney: As a tort… The cases on which the [ministerial exception] doctrine is built… do not talk about tangible and intangible employment actions or specifically whether the Church has teachings that allow or don’t allow the conduct involved. They are built on the Church-minister relationship and the fact that the state has no business interfering with it. The manner in which a superior-minister interacts with the subordinate-minister is not the business of the state and when you are talking about the regulation —

Judge Hamilton: But in some cases it can be, right? 

Archdiocese Attorney: It can be, when it involves behavior or actions that are independent of the Church-minister relationship, i.e., the employment relationship when it comes to a ministerial employee. That is the key distinction. Nobody is endorsing bad conduct or bad words. But what is justiciable in court has to do with whether the Court is relying on the decision to make the person a minister as a basis for there to even be a claim in the first place or not, number one. And number two, whether allowing this type of claim to proceed would, by necessity, involve officious investigation into and interference with the Church-minister relationship, which was at the core of holdings like Sherron and McClure. 

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Archdiocese Attorney: The reason a bright line rule is justified is where the ministerial exception comes from and what it’s based on. It’s meant to keep the government out of the Church-minister relationship, not just the hiring and the firing, the beginning and the end, but the middle as well, which is the management of the minister, the discipline of the minister… The problem with employment claims, as opposed to independently standing tort and contract claims, is that they are just integrally entwined with the employment relationship with the minister. It’s a place the state has no business being. In Milivojevich where the Court said, where the subject matter of the dispute is essentially religious, the defence has to be to the church in adjudicating the question, including the management of one of its ministers… Now, if within that relationship the church commits a bad act against the minister that exists independent of the church-minister relationship as such, such that that decision to employ the minister is not burdened, but rather the conduct independent of that is tortious, is criminal, is a breach of a contract, that’s how you address the parade of horribles that is suggested by the hypotheticals. And that is how you still allow people who have been injured to seek some kind of a remedy. On the other hand, if you have to commandeer the decision to make the person a minister as a basis to even have a claim, if you have to use the relationship as an employment relationship to the minister even as a rubric to bring the claim, such as investigating the work environment of a minister to decide if it was hostile, when the underlying alleged discriminatory conduct is immunized under the ministerial exception… One of the examples that Judge Rovner gave me was, imagine you have a racist bigoted supervising minister who does a number of offensive things. But on the other hand, in a case called Young, this Court dismissed the claims of a United Methodist minister who brought race discrimination claims against the United Methodist Church. Not that that’s a good thing to believe, not that that’s a good thing to do if it was true. But the church actually was entitled to conduct itself in a racist way in its relationship with the minister. No one’s endorsing that, of course. But that’s because the only basis for the claim was the employment relationship with the minister. If some other act, like threatening act, like putting a noose on someone’s desk were to occur, that’s independently actionable. 

I’d also recommend reading this commentary by Patrick Hornbeck.

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Chris Damian is a writer, speaker, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops.