A federal appeals court in Chicago has slammed the door on an attempt by a gay Catholic former church music director, who was fired for marrying another man, from using a “hostile work environment” claim to sidestep the Catholic Church’s First Amendment religious freedom protections to sue the Chicago Archdiocese over his termination.
On July 9, a split 10-judge panel of the U.S. Seventh Circuit Court of Appeals overturned an earlier decision from a divided three-judge appellate panel, which had sided with plaintiff Sandor Demkovich in the constitutional legal gambit.
Seventh Circuit Judge Michael B. Brennan authored the opinion for the 7-3 majority. Seventh Circuit Chief Judge Diane S. Sykes and circuit judges Joel M. Flaum, Frank H. Easterbrook, Michael S. Kanne, Amy J. St. Eve and Thomas L. Kirsch concurred in that opinion.
Circuit Judge David F. Hamilton dissented, joined by circuit judges Ilana D. Rovner and Diane P. Wood.
“This case concerns what one minister … said to another…,” Brennan wrote in the majority opinion.
“Adjudicating Demkovich’s allegations of minister-on-minister harassment would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere. Judicial involvement in this dispute would depart from (U.S. Supreme Court precedent) and threaten the independence of religious organizations ‘in a way that the First Amendment does not allow,’” Brennan wrote.
In dissent, Hamilton said the majority’s decision goes too far in favor of religious liberty, and uses the First Amendment to create “a constitutional shelter from generally applicable laws, at the expense of the rights of employees.”
The decision comes as the latest step in a long legal fight in Chicago’s federal courts between Demkovich and the Roman Catholic Chicago Archdiocese.
Demkovich, who is gay, served as church organist and director of music at St. Andrew the Apostle Church in Calumet City from 2012-2014.
Demkovich sued after the church’s pastor, the Rev. Jacek Dada, fired him several days after Demkovich married his longtime partner.
In the original lawsuit, Demkovich, of Whiting, Ind., claimed his firing violated employment discrimination laws on the basis of sex, marital status and disability.
According to court documents, Demkovich is overweight and diabetic. In his complaints, Demkovich said he suffered repeated offensive comments from Dada, particularly targeted at his physical condition, and the cost to the church of providing him with health insurance.
A federal district judge dismissed that original action, saying the church had the right to fire Demkovich under the so-called ministerial exception. The exception shields churches and other religious organizations from most employment discrimination claims, as the U.S. Supreme Court has declared churches are and should be free under the First Amendment to hire and fire people in ministerial roles to protect the sanctity of their beliefs and mission.
Demkovich’s attorneys, however, then reformatted their complaint to instead focus on Dada’s alleged mistreatment of Demkovich, saying the priest had improperly forced Demkovich to endure a hostile work environment.
The federal district judge partially sided with Demkovich on the hostile work environment claim, prompting the Archdiocese to appeal.
At the Seventh Circuit, a split three-judge panel sided with Demkovich. In a decision authored by Judge Hamilton, with support from Judge Rovner, determined “supervisors within religious organizations have no constitutionally protected individual rights … to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.”
The decision then allowed the Seventh Circuit to weigh in on a question which had vexed and divided other federal courts, as well. For instance, the Ninth Circuit Court of Appeals in San Francisco said hostile work environment claims should be allowed against churches. But the Tenth Circuit Court in Denver said the ministerial exception should terminate such claims.
Following the Hamilton panel’s ruling in the Seventh Circuit, the Archdiocese asked the Seventh Circuit’s full contingent of judges to take another look.
This time, the larger group of judges – known as an en banc panel – overruled Hamilton’s take.
The new opinion pointed to two recent U.S. Supreme Court opinions – the 2012 decision in Hosanna Tabor Evangelical Lutheran Church & School v EEOC, and the 2020 decision in Our Lady of Guadalupe School v Morrissey-Berru – which together confirm the Supreme Court’s opinion that the First Amendment guarantee of religious freedom should be read to bar virtually all interference by the government or the courts in church-related employment matters.
While the Supreme Court has not yet ruled directly on the constitutionality of discrimination suits against churches centered on hostile work environment claims, the Seventh Circuit said the principles fostered in the Hosanna Tabor and Lady of Guadalupe decisions confirm the Supreme Court’s intent to require that hostile work environment claims aimed at churches over its treatment of ministerial workers “be treated differently” than those involving “nonministers.”
“Given a minister’s role in the religious organization’s practice of the faith, allowing hostile work environment claims here ‘intrudes upon more than a mere employment decision,’” Brennan wrote.
“Put differently, analyzing a minister’s hostile work environment claim based on another minister’s conduct is not just a legal question but a religious one, too.”
And that is territory that the courts cannot tread, Brennan said, as the courts must allow religious organizations to determine for themselves who is and is not able to serve as ministers.
“To render a legal judgment about Demkovich’s work environment is to render a religious judgment about how ministers interact,” Brennan wrote.
“… It would be incongruous if the independence of religious organizations mattered only at the beginning (hiring) and the end (firing) of the ministerial relationship, and not in between (work environment).”
Hamilton and the dissenting judges, however, said such findings are not necessary to preserve either the autonomy and independence of religious organizations, or religious liberty, in general.
He chided the majority, claiming they largely ignored the arguments in favor of Demkovich’s position.
He said the “absolute bar” on hostile work environment claims against churches and religious organizations established by the majority’s decision in Demkovich’s case would essentially force the courts to ignore mistreatment claims brought by an expanding number of people who are deemed “ministers” by religious organizations.
He said the decision “threatens to leave many without basic legal protection of their dignity and employment.”
Hamilton said the courts should instead take a case-by-case approach, and “intervene if the specific case poses a serious threat to religious liberty.”
Hamilton did not attempt to define such a “serious threat.”
Demkovich has been represented in the case by attorneys David L. Franklin, of the firm of Massey & Gail, of Chicago, and Kristina B. Alkass, Patti S. Levinson and Thomas J. Fox, of the firm of Lavelle Law, of Schaumburg.
The Chicago Archdiocese and related defendants have been represented by attorneys James C. Geoly, of the Archdiocese; Alexander D. Marks, of Burke Warren MacKay & Serritella, of Chicago; and Eric C. Rassbach, Daniel H. Blomberg, Daniel D. Benson and Christopher Mills, of The Becket Fund for Religious Liberty, of Washington, D.C.