June 2012 Church & State | People & Events


A teacher at a Catholic school in Indiana has been fired for doing something that the church normally applauds: trying to have a baby with her husband.

Emily Herx, who is married and unable to conceive without outside help, relied on in vitro fertilization (IVF) in an effort to bear a child and was told she was no longer welcome at St. Vincent de Paul Catholic School in Fort Wayne.

Herx’s use of  IVF makes her a “grave immoral sinner,” she says a pastor at the church school told her. (The Catholic hierarchy is against IVF because the process often requires the creation of extra embryos, which are later destroyed.)

Herx, who taught language arts for eight years and received outstanding performance reviews, is now suing in federal court for unlawful termination. But her case is clouded by a recent U.S. Supreme Court decision granting religious institutions wide latitude to hire and fire personnel who perform religious duties.

The Supreme Court said last year in Hosanna-Tabor Evangelical Luther­an School v. EEOC that ministers who have been fired can’t sue their churches for violation of employment discrimi­nation laws, saying they fall under a “ministerial exception” to civil rights laws.

Herx’s attorney, Kathleen Delaney, told ABC News that Herx is a different type of employee because she had no religious duties.

“The facts in this case are distinguishable,” Delaney said. “There is no ministerial exception. Ms. Herx didn’t have religious training, did not teach religious doctrine.” 

Officials at the diocese say they fired Herx for “improprieties.”  A statement said in vitro fertilization is “not morally licit according to Cath­olic teaching.”

It’s ironic that Herx’s case came out of Indiana, because the state legislature there recently passed a massive voucher scheme to subsidize religious and other private schools. Like so many similar programs, it allows students to attend private schools, including religious ones, using taxpayer funds.

The Indiana Supreme Court is currently reviewing the constitutionality of the voucher plan. Americans Uni­ted says the Herx case is one more reason why taxpayers should not be forced to pay for religious school tuition.

Many students who receive vouchers will inevitably attend sectarian schools, which are free to teach religion, to discriminate on religious grounds in admissions and even claim a right to fire teachers based on adherence to religious doctrine.

Gregory M. Lipper, senior litigation counsel at Americans United, said the Herx case is “Exhibit A of what goes wrong if the [ministerial] exception becomes too broad.”

Lipper told CNN, “If a teacher of purely secular subjects is considered a minister, then the implication of that is that everyone who works for a Catholic school would be considered a minister. It becomes an open license to discriminate.”