It is a case that has never been seen in this country before - and a harbinger of the religious right's attacks on America yet to come. If you thought Hobby Lobby was extreme, you haven't seen anything yet.
The St. Vincent de Paul School in Fort Wayne, Indiana is a small Catholic school of about 800 students. In 2012, Emily Herx was an English teacher there, and had been trying for a year to conceive. Like many women, she decided to try in-vitro fertilization, which required her to request some time off. At first, as Mother Jones reports, she was met with what she thought was support from her supervisor. "You are in my prayers." Not even two weeks later, she was met with a pink slip.
Herx was labeled by one monsignor a "grave, immoral sinner," merely for trying to have a family.
And so she's suing the St. Vincent de Paul School and the Fort Wayne-South Bend Diocese for firing her.
Of course, the school and diocese are arguing "freedom of religion" allows them to hire and fire at will.
But they are also using an argument that has never been tried before, at least in America: Freedom of religion and the First Amendment mean they don't even have to show up in court. In short, they are arguing the State has no jurisdiction over them, because of the First Amendment.
"[If] the diocese is required to go through a trial," attorneys for the diocese and school argued, it would "irrevocably" deny Fort Wayne-South Bend the benefits of religious protection. Herx's attorneys are fighting the appeal.
If they are successful - and yes, this could conceivably go to the Supreme Court - it would mean an entirely separate State exists, in essence, for religious institutions in America. Not only would they be tax-exempt, they would be law-exempt.
"I've never seen this before, and I couldn't find any other cases like it," Brian Hauss, a staff attorney with the American Civil Liberties Union Center for Liberty told Mother Jones.
"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," Hauss adds.
Louise Melling, a deputy legal director at the ACLU, was more critical: "It's an unusual and extreme argument, to be saying the court doesn't even have the legal authority to ask whether this was, in fact, sex discrimination. I can't imagine they would prevail on that. It's too extreme."
Than again, Melling says she never would have predicted the recent wave of cases in which religious institutions asserted that they have an expansive right to discriminate. One of those cases was Burwell v. Hobby Lobbyâ€”the Supreme Court case that struck down the contraception mandate in the Affordable Care Act. The ACLU has also seen a climb in the number of Christian schools arguing that Title VII allows them to fire women who undergo IVF or become pregnant outside of marriage, or to fire employees who engage in same-sex relationships. "Hobby Lobby was just one case in this wave," Melling says.
Conservatives, however, don't see it as "extreme" at all.
Douglas Laycock, a professor at the University of Virginia Law School, says the diocese's assertion is a "perfectly sensible argument." Laycock, who has successfully argued numerous religious liberty cases before the Supreme Court, notes there is precedent for immunizing certain organizations from trial, although not necessarily under Title VII's religious protections. "I think it's going to be a hard sell," he says. "But I don't know that it's 'extreme.'"
Many Americans believe the Hobby Lobby case was extreme as well.
But as it turns out, Hobby Lobby was just the beginning.
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