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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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In Vitro Firing Suit Advanced in Indiana

CHICAGO (CN) - A Catholic diocese must fight sex-discrimination claims related to its firing of a teacher who underwent in vitro fertilization, the 7th Circuit ruled.

Emily Herx taught language arts at the St. Vincent de Paul School in Fort Wayne, Ind., from 2003 to 2011.

After she was diagnosed with a medical condition that causes infertility in 2008, Herx began fertility treatments that proved unsuccessful.

She then underwent in vitro fertilization in 2010, and the school principal gave her time off for the procedure.

Just as she was about to undergo a second round of in vitro fertilization the next year, however, Monsignor John Kuzmich met with Herx and informed her that Catholic teaching prohibits the practice.

The church believes that in vitro fertilization immorally separates the loving act of sex from its procreative side. It also frowns upon the discarding of additional embryos that are fertilized in the procedure.

Finding that Herx had violated the church's moral standards, the monsignor informed her Herx that her teaching contract would not be renewed for the 2011-12 school year.

In Herx's ensuing federal discrimination complaint, U.S. District Judge Robert Miller upheld her Title VII claim.

A three-judge panel of the 7th Circuit dismissed the diocese's appeal for lack of appellate jurisdiction Monday.

"Invoking the exemptions in the context of this case raises a question of first impression in this circuit," Judge Diane Sykes wrote for the court. "Are the religious employer exemptions in Title VII applicable only to claims of religious discrimination or do they apply more broadly to other employment-discrimination claims?" (Emphasis in original.)

The decision notes that Judge Miller was sensitive to the diocese's concern that a jury might "conduct[] its own secular analysis of Roman Catholic doctrine on in vitro fertilization."

Miller said he would instruct the jury not to consider "whether [the diocese's] actions were wise, reasonable, or fair," but only whether Herx had been fired because of her sex.

These assurances formed the basis for the 7th Circuit's decision not to entertain the diocese's interim appeal.

"The District Court has not ordered a religious question submitted to the jury for decision," Sykes wrote. "To the contrary, the judge promised to instruct the jury not to weigh or evaluate the church's doctrine regarding in vitro fertilization. The judge would do well to be quite explicit in these instructions."

The panel noted that it had no intention of diminishing the importance of the diocese's First Amendment concerns.

As a procedural matter, however, the collateral-order doctrine does not apply "because the district court's decision is not effectively unreviewable on an appeal from a final judgment," the judgment concludes.

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