Catholic Church says having to defend itself against discrimination claims is a violation of its religious freedom

The religious freedom claims just keep getting more and more ridiculous. In the latest, the Catholic Church is arguing that its religious liberty rights protect them from even having to go to court at all if they’re accused of discrimination. Mother Jones reports on the case of teacher who was fired from her job at a Catholic school in Indiana for undergoing in vitro fertilization treatment. 

When Emily Herx first took time off work for in vitro fertilization treatment, her boss offered what sounded like words of support: “You are in my prayers.” Soon those words took on a more sinister meaning. The Indiana grade school where Herx was teaching English was Catholic. And after church officials were alerted that Herx was undergoing IVF—making her, in the words of one monsignor, “a grave, immoral sinner”—it took them less than two weeks to fire her.

Herx filed a discrimination lawsuit in 2012. In response, St. Vincent de Paul School and the Fort Wayne-South Bend Diocese, her former employers, countered with an argument used by a growing number of religious groups to justify firings related to IVF treatment or pregnancies outside of marriage: freedom of religion gives them the right to hire (or fire) whomever they choose. But the diocese took one big step further. It is arguing that, in this instance, its religious liberty rights protect the school from having to go to court at all.

“I’ve never seen this before, and I couldn’t find any other cases like it,” says Brian Hauss, a staff attorney with the American Civil Liberties Union Center for Liberty. The group is not directly involved in the lawsuit but has filed amicus briefs supporting Herx. “What the diocese is saying is, ‘We can fire anybody, and we have absolute immunity from even going to trial, as long as we think they’re violating our religion. And to have civil authorities even look into what we’re doing is a violation’…It’s astonishing.”

The crux of Herx’s case is “whether she was fired for religious reasons or her firing was an illegal act of sex discrimination.” While religious institutions are allowed to discriminate based on religion when it comes to hiring and firing, they don’t get to be exempted from the Civil Rights Acts that forbids discrimination based on gender — and Herx is arguing that the school’s response would have been different if she were a man. But the Church is claiming “the court doesn’t even have the legal authority to ask whether this was, in fact, sex discrimination.” It’s an extreme postition that, if successful, would open the door to allowing religious organizations the freedom to discriminate as much as they want, while being completely protected from lawsuits.

Most legal experts think the court won’t buy the Church’s claim. But on the other hand, we’ve been seeing a growing number of cases like Herx’s — including several in which Christian schools, apparently confused about what decade we’re living in, fired women for becoming pregnant outside of marriage — and, of course, the Supreme Court’s Hobby Lobby decision gave religious institutions expansive new rights to make their employees’ personal lives their business. So who knows what will happen.

St. Paul, MN

Maya Dusenbery is executive director in charge of editorial at Feministing. She is the author of the forthcoming book Doing Harm: The Truth About How Bad Medicine and Lazy Science Leave Women Dismissed, Misdiagnosed, and Sick (HarperOne, March 2018). She has been a fellow at Mother Jones magazine and a columnist at Pacific Standard magazine. Her work has appeared in publications like,, Bitch Magazine, as well as the anthology The Feminist Utopia Project. Before become a full-time journalist, she worked at the National Institute for Reproductive Health. A Minnesota native, she received her B.A. from Carleton College in 2008. After living in Brooklyn, Oakland, and Atlanta, she is currently based in the Twin Cities.

Maya Dusenbery is an executive director of Feministing and author of the forthcoming book Doing Harm on sexism in medicine.

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