March 2023 Church & State Magazine - March 2023

Americans United Files Appeal In Case Of Fired Ind. Counselor


Americans United in late January urged a federal appeals court to recognize that religious employers are not above civil rights laws and allow to proceed the civil rights lawsuit of Shelly Fitzgerald, a high school guidance counselor fired by Roncalli High School and the Roman Catholic Archdiocese of Indianapolis because she is married to a woman.

Fitzgerald was a beloved and trusted guidance counselor at her alma mater, Roncalli High School, for 14 years. Fitzgerald and her wife, Victoria, have been together for 25 years, marrying in 2014 as soon as Indiana recognized marriage equality. After four years of marriage, school administrators summoned Fitzgerald to a 2018 meeting and gave her four heartbreaking “options”: resign; be fired immediately; be fired at the end of her one-year contract if she would “keep quiet” about why she was being fired; or dissolve her marriage.

Fitzgerald refused to divorce her wife or resign, and within days was placed on administrative leave and banned from campus. Her contract was not renewed in spring 2019. Fitzgerald sued for this violation of her civil rights. Americans United is representing her in court. 

The school and its lawyers are trying to prevent the courts from considering Fitzgerald’s case by exploiting a court-created doctrine known as the “ministerial exception,” which is meant to protect the ability of houses of worship to choose their clergy. But the ministerial exception applies only to certain religious leaders and teachers of the faith; it was never intended to be a free pass for any religious employer to discriminate against its entire workforce. Fitzgerald was not a minister and never performed in any religious capacity; as a guidance counselor, she assisted and advised students on their academic, professional and vocational options.

An appeal brief filed on Jan. 26 with the 7th U.S. Circuit Court of Appeals in Fitzgerald v. Roncalli High School contends that a federal district court judge in Indiana was wrong to dismiss Fitzgerald’s case on Sept. 30, 2022. 

“The First Amendment rightly gives religious employers special solicitude to choose important religious figures to teach and preach the faith. It does not give them the power to choose what laws apply to them and when,” the brief notes.

AU President and CEO Rachel Laser called on the appeals court to protect Fitzgerald’s rights.

“Shelly Fitzgerald was a loved and trusted guidance counselor providing academic and career advice to students at her alma mater,” Laser said. “She was not a minister when she was fired for being married to the woman she’s loved for more than 25 years. The courts should not give the school a free pass to ignore civil-rights laws and discriminate against her and other non-ministerial employees. We urge the court to affirm that Catholic schools and other religious employers are not above civil rights laws.

“According to these religious employers, they can strip every worker — from janitor, to cook, to P.E. teacher, to nurse, to guidance counselor — of the protection of basic civil rights laws by requiring every employee to sign a ministerial contract, regardless of the duties they are actually expected to perform each day. If the courts allow this to continue, the expanded doctrine could be exploited to fire, refuse to hire, or mistreat for any reason the more-than-a-million employees who work at religious schools, hospitals and nonprofits. That is not what our Constitution intended.”

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The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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