September 8, 2020 at 6:50 pm EDT | by Chris Johnson
Trump administration: It’s OK for a Catholic school to fire a teacher for being gay
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The Justice Department under President Donald Trump has filed a legal brief siding with a school that fired a teacher for being gay. (Screen capture via C-SPAN)

The Trump administration on Tuesday filed a legal brief with the Indiana Supreme Court, formally making the case a Catholic school has a First Amendment right to fire a teacher for entering into a same-sex marriage.

The 36-page brief, signed by U.S. Attorney Josh Minkler for the Southern District of Indiana, asserts the Archdiocese of Indianapolis had a constitutional right to terminate Joshua Payne-Elliott from his job as a world language and social studies teacher at Cathedral High School, despite contractual obligations he had with the school.

Although a trial court in Indiana in May 2020 rejected a request from the Archdiocese of Indianapolis to throw out the lawsuit, saying the First Amendment only applies to the “highest authority” of jobs within a church on certain issues, the litigation is now before the Indiana Supreme Court because the archdiocese has since appealed.

Minkler makes his case based on legal principles under the First Amendment — the church-autonomy doctrine, the archdiocese’s right to expressive association and the ministerial exception — which he says prevent a former Catholic high school teacher from suing the archdiocese over his termination.

“[T]he First Amendment right of expressive association protects the Archdiocese’s right not to associate with Cathedral, whose forced presence within the Archdiocese’s associational umbrella if it continued to employ Payne-Elliott as a teacher would interfere with the Archdiocese’s public expression of Church doctrine regarding marriage,” Minkler writes.

Much of the legal precedent on which Minkler bases his brief is the Supreme Court’s recent decision in Our Lady of Guadalupe School v. Morrissey-Berru. Although the ruling stopped short of defining the ministerial exemption under the First Amendment, it did assert a variety of factors can determine whether it applies to a Catholic school employee.

Minkler argues the Our Lady decision — which sided with Catholic schools asserting a First Amendment exception in lawsuits filed by teachers asserting wrongful termination — applies to the Payne-Elliott case because the plaintiffs in both cases are teachers at schools that “entrusts a teacher with the responsibility of educating and forming students in the faith.”

“Although, Payne-Elliott, like the teachers in Our Lady, lacked a special ministerial title differentiating him from other teachers at the school, the Archdiocese designates all teachers as responsible for its ministry of training students in the faith, titling their expectations document for teachers as ‘Ministry Description[:] Teacher’, and Cathedral specifies that teaching is a ‘vocation,” Minkler writes.

Minkler also cites in the legal brief guidance from former U.S. Attorney General Jeff Sessions in October 2017 urging federal departments to accommodate in their policy and actions religious freedom, which critics at the time said would essentially green light anti-LGBTQ discrimination.

Eric Dreiband, assistant attorney general for the Civil Rights Division, hailed the legal brief in a statement as an example of the Trump administration’s commitment to religious liberty.

“Our ancestors arrived on our shores to establish a country where the people would be secure to practice their faiths and to gather freely with their religious communities,” Dreiband said. “To that end, the First Amendment to the United States Constitution protects the right of religious institutions and people to decide what their beliefs are, to associate with others who share their beliefs, and to determine who will teach the faithful in their religious schools. Let there be no doubt: The Department of Justice will continue to defend the First Amendment rights to believe, worship and associate in a manner that respects the dignity and choice of all individuals.”

According to the filing, the Cathedral High School where Payne-Elliott taught had initially declined to obey the directive from the archdiocese to terminate him after he entered into a same-sex marriage. However, after the archdiocese informed the school it must either fire Payne-Elliott or disassociate with the Catholic Church, the school in June 2019 decided to terminate him, informing the Cathedral family the decision was an “agonizing decision, made after 22 months of earnest discussion.”

Another Catholic school where Payne-Elliott taught, Brebeuf Jesuit Preparatory School, was given the same directive from the archdiocese in June 2019, but declined to comply. As a result, the archdiocese issued a decree stating in part Brebeuf “can no longer use the name Catholic and will no longer be identified or recognized as a Catholic institution by the Archdiocese,” according to the Justice Department filing.

The Trump administration’s participation in the case isn’t new. When the case was before the trial court, the Justice Department last year filed a statement of interest siding with the Archdiocese of Indiana based on similar arguments.

Although the case is before the Indiana Supreme Court, it may soon reach the U.S. Supreme Court because of the federal questions involved in the case. Once the Indiana Supreme Court reaches its decision, the losing party can file a petition for review before the U.S. Supreme Court, which could make a determination on whether a religious entity can fire an individual being LGBTQ nationwide.

The Washington Blade has placed a request with the White House and the Justice Department seeking comment on how it can square purporting to support the LGBTQ community when the Trump administration has filed a legal brief saying a Catholic school teacher can be fired for being gay.

CORRECTION: An initial version of this article misstated Brebeuf Jesuit Preparatory School terminated Payne-Elliott. The school stood by him. The Blade regrets the error.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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