Herx Lawsuit: A Matter of Church v. State

By Rachel Martin
By Megan Trent
By Maureen Mespell

April 26, 2012 Updated Apr 27, 2012 at 7:31 PM EDT

FORT WAYNE, Ind. (Indiana’s NewsCenter) – Emily Herx, the Former Fort Wayne Catholic school teacher waging a legal war after being fired for using in vitro fertilization, spoke out in Indianapolis Friday.

With her lawyer and husband beside her, Herx spoke passionately about her recently filed lawsuit against Saint Vincent De Paul School and the Fort Wayne-South Bend Diocese.

The 31 year old Hoagland woman says the school knew about her IVF treatments as far back as 2008 and was initially supportive before failing to renew her contract in April 2011.

Herx says this is despite excellent reviews as a language teacher at the school for eight years.

The Diocese has said as a teacher Herx was required to respect and follow the church's teachings which doesn't condone IVF.

Even though the U.S. Supreme Court recently ruled that ministers have no discrimination protection against religious employers, Herx says she was never trained as a minister or warned about the possible consequences of going through IVF.

She says it's about discrimination, "Basically, right now my point to get across is how this was handled and how it has affected me and my entire family and how much I loved my teaching job."

Herx's attorney says the Catholic Church is expected to legally respond to the suit within sixty days.
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The separation of Church and State and their conflicting views could make for a tough lawsuit for Emily Herx and Diocese.

Although Emily Herx taught at St. Vincent de Paul Catholic School, she says she is not Catholic. Despite the fact, the Fort Wayne-South Bend Diocese argues that Herx must have knowledge of, respect, and abide by the Catholic Church's teachings upon employment. Herx and her lawyer have taken the stance of discrimination in her lawsuit, but the court may or may not see it that way. When it comes to lawsuits with religious institutions, things can be difficult to understand. This issue could be the separation of Church and State.

The Catholic Church has its own set of beliefs called doctrine. Often times, Catholic doctrine and common law don't match. For example, the biggest debate between the White House and the Catholic Church, right now, is the requirement of health insurance plans to cover birth control. The White House calls it a common right, Catholic doctrine has long opposed oral contraceptives.

A rule called the, "Ministerial Exception,” is another example. In January, the Supreme Court ruled that religious institutions have the right to choose or dismiss leaders at their discretion. This rule can apply to ministers, or anyone who carries out the beliefs of the institution—including teachers and professors.

Carter Snead, a law professor at the University of Notre Dame, says the outcome of Herx’s lawsuit could depend on how both the Church, and the court, labels her professional role.

“If a court were to conclude that a first grade teacher at a school like this is involved in the moral formation of the kids that is religiously significant, I could imagine them extending the protection to the diocese,” Snead said. “If the court, however, thinks of this employee as a secular employee that's not engaged at all in the mission of the institution, and this constitutes discrimination in other contexts, then the diocese might have a problem.”

Snead says the lawsuit could rule favorable for either party, however, he did bring up a recent case where a Lutheran school teacher with narcolepsy was fired. The teacher sued the Lutheran Church Missouri Synod for discrimination based on disability, but the court recognized the Ministerial Exception and ruled in favor of the church.




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