A Chicago appeals panel has rejected an attempt by lawyers representing a lesbian woman, who is suing the Catholic Archdiocese of Indianapolis for discrimination, from blocking the church’s accomplished attorney from arguing on the church’s behalf in front of the appellate court, because the church’s lawyer has not received a Covid-19 shot.
Last week, a three-judge panel of the U.S. Seventh Circuit Court of Appeals ruled attorney Luke Goodrich, senior counsel with the prominent religious liberty legal defense organization, The Becket Fund, would be allowed to present arguments in person on behalf of the Indianapolis Archdiocese.
The court did not explain the decision, issuing only a short order granting Goodrich permission to appear in person, so long as he tests negative for Covid using a PCR test within 48 hours of the scheduled May 16 oral arguments.
Luke Goodrich
| Becket Fund for Religious Liberty
The court had days earlier earlier found itself at the center of a brief tussle over the ability of unvaccinated lawyers to practice law, and the rights of their clients to select their counsel to represent them.
Since 2019, Goodrich and other attorneys from the Becket Fund have represented the Roman Catholic Archdiocese of Indianapolis against a lawsuit brought by Lynn Starkey.
Starkey had sued the Archdiocese, claiming the church illegally discriminated against her when they fired her from a guidance counselor position at Roncalli High School, a Catholic school run by the Archdiocese, in Indianapolis, because she married a woman.
The case tests the limits of the so-called “ministerial exception,” a constitutional law concept created in prior U.S. Supreme Court decisions that generally shields religious organizations from discrimination lawsuits, on the principle that churches and other explicitly religious organizations should be generally free to hire and fire for minister roles, in keeping with their own religious doctrines.
In recent years, for example, the Seventh Circuit has interpreted the Supreme Court’s rulings to determine that a Catholic church in Chicago was protected from a discrimination lawsuit brought by a gay man after he was fired from his position as a music director in that church.
In recent years, the Supreme Court has ruled the ministerial exception also can apply to teachers at religious schools.
Starkey’s lawsuit may be the first in the country to test whether the ministerial exception should also apply to guidance counselors.
In her lawsuit, Starkey claims the church exceeded its constitutional protections in firing her from a job that is not religious in nature.
An Indiana federal judge, however, sided with the Archdiocese, determining Starkey’s lawsuit should not be allowed under the ministerial exception. The judge agreed with the church that, in her role providing counseling to students at a Catholic high school, Starkey should be considered a “minister of the faith," according to a report published by the Indianapolis Star.
Starkey then appealed the decision to the Seventh Circuit Court in Chicago, which hears appeals in federal cases from Illinois, Indiana and Wisconsin.
After months of filing briefs, the two sides were preparing for oral arguments that had been set for Monday, May 16.
On May 2, Goodrich and the Archdiocese filed a motion, asking the court to allow Goodrich to present the church’s arguments remotely, via video conferencing.
That same day, without explanation, however, the court denied that request.
The ruling came despite a Seventh Circuit standing order in place since 2021 giving parties the option to ask permission to appear remotely, citing concerns for the transmission of Covid.
The court also had a standing order in place requiring all lawyers who appear in person for oral argument to be fully vaccinated against Covid. This rule requires all lawyers who are not vaccinated to present their arguments remotely.
The court’s standing order and its rulings in the Starkey case come against the backdrop of scientific data indicating those who are vaccinated against Covid can become infected with Covid and transmit the virus to others.
On May 3, Goodrich and the Archdiocese filed a new motion, asking the court to reconsider its denial. In that motion, Goodrich explicitly stated for the first time in these proceedings that he has not received a Covid vaccine.
In the motion to reconsider, the church noted the court’s refusal to allow Goodrich to present oral arguments on behalf of the Archdiocese “would cause significant prejudice,” as it would deprive the church of their attorney of choice with less than two weeks before scheduled oral arguments.
They further noted Goodrich is not easily replaceable. They pointed to his deep experience in religious liberty law, including his role as co-counsel in two recent landmark Supreme Court decisions regarding the ministerial exception. This includes the decision extending the ministerial exception to private school teachers.
They asked the court, alternatively, to allow Goodrich to argue in person, without receiving a Covid vaccine.
In response, attorneys for Starkey objected. Those lawyers, from the firm of DeLaney & DeLaney, of Indianapolis, argued no grounds existed to give Goodrich an exception to the court’s rule barring unvaccinated lawyers from presenting arguments in person.
The Archdiocese and Goodrich “have been aware of this Court’s vaccination requirements since at least April 11,” Starkey’s lawyers wrote.
The Archdiocese “could have avoided the predicament it finds itself in if it had chosen a fully vaccinated lawyer to present oral argument on its behalf. Any prejudice (the Archdiocese) may suffer is of their own making,” Starkey’s lawyers argued.
However, the court relented, allowing Goodrich to present arguments on May 16, subject to the Covid test.