Filed: 9/27/2019 12:40 PM
Clerk
Marion County, Indiana

IN THE MARION SUPERIOR COURT, CIVIL DIVISION #1
STATE OF INDIANA, COUNTY OF MARION

JOSHUA PAYNE-ELLIOTT,
Plaintiff,
Cause No. 49D01–1907–PL–027728
v.
ROMAN CATHOLIC ARCHDIOCESE OF
INDIANAPOLIS, INC.,
Defendant.

THE UNITED STATES’ STATEMENT OF INTEREST

 The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C.
§ 517, which authorizes the Attorney General to send his officers “to any State . . . to attend to
the interests of the United States in a suit pending . . . in a court of a State.”1
PRELIMINARY STATEMENT
In 2015, the Supreme Court of the United States held that “same-sex couples may
exercise the fundamental right to marry in all States.” Obergefell v. Hodges, 135 S. Ct. 2584,
2607 (2015). In doing so, the Court took care to “emphasize[] that religions, and those who
adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by
divine precepts, same-sex marriage should not be condoned.” Id. “The First Amendment
ensures that religious organizations and persons are given proper protection as they seek to teach
the principles that are so fulfilling and so central to their lives and faiths, and to their own deep
aspirations to continue the family structure they have long revered.” Id.; accord Masterpiece
Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018). The “proper
protection” afforded to the Roman Catholic Archdiocese of Indianapolis by the First Amendment
requires that this action be dismissed.
The Archdiocese of Indianapolis acts through the Archbishop, who decides which
schools within the diocesan boundaries may deem themselves Catholic.

The Archdiocese

recognizes Cathedral High School, Plaintiff’s former employer, as a Catholic school (Compl.
¶ 8), and adheres to a conviction that same-sex marriage “should not be condoned,” Obergefell,
135 S. Ct. at 2607. (See Compl. ¶¶ 14, 16, 21, 23–24.) As alleged by Plaintiff, in May or June

1

“Courts have interpreted 28 U.S.C. § 517 broadly and have generally denied motions to
strike statements of interest.” Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1317 (S.D.
Fla. 2017). “The statute contains no time limitation and does not require the Court’s leave.”
Karnoski v. Trump, No. 18–51013, 2018 WL 4501484, at *2 (E.D. Mich. Sept. 20, 2018).

2

 of 2019, the Archdiocese presented Cathedral with a choice: terminate Plaintiff’s employment
on account of his public, same-sex marriage, or dissociate with the Catholic Church. (Id. ¶¶ 13–
18, 21–23.) Presented with the same choice, another school in the diocese chose the latter option,
and shed its Catholic identity. (Id. ¶ 14–15.) After much deliberation, Cathedral chose the
former option and terminated Plaintiff’s employment. (Id. ¶¶ 17–18, 21–22.) Plaintiff now sues
the Archdiocese in tort.
The First Amendment to the United States Constitution shields the Archdiocese in at least
two independent ways. Initially, the First Amendment precludes this Court, a state actor, from
cooperating in Plaintiff’s attempt to stifle the Archdiocese’s First Amendment right to expressive
association.

The First Amendment also precludes the Court from entangling itself in a

quintessentially ecclesiastical question:

whether the Archdiocese properly interpreted and

applied Catholic doctrine. The First Amendment commits that question exclusively to the
ecclesiastical tribunals of the Church.
The United States has no reason on this record to doubt that Plaintiff was an excellent
teacher. Cathedral’s heartfelt letter, attached to Plaintiff’s complaint, suggests as much. But like
this Court, the United States can cast no judgment on whether the Archdiocese’s decision is right
and proper as a matter of Catholic doctrine or religious faith. This action, accordingly, must be
dismissed.
INTEREST OF THE UNITED STATES
The United States has a substantial interest in religious liberty. Religious liberty is a
foundational principle of enduring importance in America, enshrined in the United States
Constitution and in other sources of federal law. The United States is strongly invested in
ensuring that its citizens’ religious freedoms are not impinged and, to that end, regularly files

3

 statements of interest and amicus briefs in courts at every level, from trial courts to the Supreme
Court of the United States.
The Attorney General has issued comprehensive guidance interpreting religious-liberty
protections available under the United States Constitution and federal law. (See Memorandum
from the Attorney General re: Federal Law Protections for Religious Liberty (Oct. 6, 2017),
available at https://www.justice.gov/opa/press-release/file/1001891/download.) As relevant here,
the Attorney General has explained that religious employers are entitled to employ only persons
whose beliefs and conduct are consistent with the employers’ religious precepts, and, more
broadly, that the United States Constitution bars the government from interfering with the
autonomy of a religious organization. (Id. at 3 & 6.)
This case presents an important question: whether a religious entity’s interpretation and
implementation of its own religious teachings can expose it to third-party intentional-tort liability.
The First Amendment answers that question in the negative.
BACKGROUND
In 2017, Plaintiff Joshua Payne-Elliott, then a teacher at Cathedral High School, civilly
married his now-husband. (Compl. ¶¶ 7, 10.) Cathedral High School is recognized as a Catholic
school by the Roman Catholic Archdiocese of Indianapolis, Inc. (Id. ¶ 8.) Cathedral was
incorporated in 1972 “for the sole purpose of maintaining and operating a Roman Catholic
secondary school.” (Compl. Ex. C.) Its bylaws “state that the essential Holy Cross character of
Cathedral as a Catholic high school shall be at all times maintained and that a mission priority is
to be an educator in the faith.” (Id.)
The Archdiocese is led by its Archbishop, the Most Reverend Charles C. Thompson. (Id.
¶ 9.) “It is Archbishop Thompson’s responsibility to oversee faith and morals as related to

4

 Catholic identity within the Archdiocese of Indianapolis.” (Compl. Ex. C.) See generally 1983
Codex Iuris Canonici cc.381–402 (authority and obligations of diocesan bishops).
In May or June of 2019, the Archdiocese issued a “directive” to Brebeuf Jesuit
Preparatory School, another school within the diocese. (Compl. ¶¶ 14, 16.) In Brebeuf’s words,
the Archdiocese directed that it “dismiss a highly capable and qualified teacher”—Plaintiff’s
husband—“due to the teacher being a spouse within a civilly-recognized same-sex marriage.”
(Id. ¶ 14.) Brebeuf declined to obey the Archdiocese’s directive. (Id.) On behalf of the
Archdiocese, the Archbishop issued a decree stating in part that Brebeuf “can no longer use the
name Catholic and will no longer be identified or recognized as a Catholic institution by the
Archdiocese.” (Id. ¶ 15 & Compl. Ex. B.)
The Archdiocese issued the same directive to Cathedral. (Compl. ¶ 16.) According to
Cathedral’s President, “‘the Archbishop directed that [Cathedral] can’t have someone with a
public same-sex marriage here and remain Catholic.’” (Id. ¶ 21.) Like Brebeuf, Cathedral could
have “‘forfeit[ed] [its] Catholic identity’” and continued to employ Plaintiff. (Id. ¶ 23 & Compl.
Ex. C; see Compl. ¶¶ 14–15.) Alternatively, Cathedral could follow the Archbishop’s direction.
However unpleasant for the school, the choice was Cathedral’s to make.
On June 23, 2019, Cathedral’s Chairman and its President issued a joint letter to the
Cathedral community describing the school’s “agonizing decision.” (Compl. Ex. C.) The letter
made clear that “Cathedral’s continued employment of a teacher in a public, same-sex marriage”
would result in its forfeiture of its Catholic identity “due to [its] employment of an individual
living in contradiction to Catholic teaching on marriage.” (Id.)
If stripped of its Catholic identity, the letter explained, Cathedral would suffer in a variety
of ways, both spiritual and secular: (i) it would “lose the ability to celebrate the Sacraments as

5

 [it has] in the past 100 years with [its] students and community”;2 (ii) it “would lose the privilege
of reserving the Blessed Sacrament in [its] chapel’s tabernacle”; (iii) it “could no longer refer to
Cathedral as a Catholic school”; (iv) its “diocesan priests would no longer be permitted to serve
on [its] Board of Directors”; (v) it “would lose [its] affiliation with The Brothers of Holy Cross”;
and (vi) it “would lose its 501(c)(3) status thus rendering Cathedral unable to operate as a
nonprofit school.” (Id.)
Ultimately, “after 22 months of earnest discussion and extensive dialogue with the
Archdiocese of Indianapolis about Cathedral’s continued Catholic identity,” Cathedral decided
“to remain a Catholic Holy Cross School” and to “follow the direct guidance given to [it] by
Archbishop Thompson and separate from the teacher.” (Id.) Cathedral terminated Plaintiff’s
employment (Compl. ¶ 17), and Plaintiff now sues the Archdiocese in tort.
ARGUMENT
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. amend. I. The First Amendment applies
to the states by the Fourteenth Amendment, e.g., Louisiana ex rel. Gremillion v. NAACP, 366
U.S. 293, 296 (1961), and thus applies to Indiana and its court system.
The First Amendment bars this action for at least two independent reasons.

First,

Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for
2

According to Catholic canon, “[t]he sacraments of the New Testament were instituted by
Christ the Lord and entrusted to the Church.” 1983 Codex Iuris Canonici c.840. “[T]hey are
signs and means which express and strengthen the faith, render worship to God, and effect the
sanctification of humanity.” Id. Marriage is one of the seven Sacraments recognized by the
Catholic Church.

6

 deciding which schools may identify as Catholic under its associational umbrella.

The

Archdiocese has determined that a Catholic school operating within its diocesan boundaries may
not employ a teacher in a public, same-sex marriage and that allowing such schools to do so
would detract from the Catholic teachings on marriage. The Supreme Court has made plain that
the First Amendment protects the Archdiocese’s right to this form of expressive association, and
that right cannot be frustrated by state actors, such as the Court.
Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s
application of Catholic law, in violation of the church-autonomy doctrine.

Specifically,

Plaintiff’s claims are rooted in the assertion that the Archdiocese’s decision was pretextual in
nature. He thus calls upon this Court to divine what Catholic doctrine says about same-sex
marriage, and what the Church regards as the religious Sacrament of Marriage. This Court
would necessarily have to decide other religious topics, such as whether the Archdiocese’s
application of Catholic doctrine is properly applied as a religious matter, and whether the
Archdiocese’s application of Catholic doctrine here was justified by Archbishop Thompson’s
religious beliefs, or whether its application was pretextual in nature. The church-autonomy
doctrine, however, prevents secular courts from second-guessing religious institutions’
interpretation and application of religious doctrine.
For both of these independent reasons, this action must be dismissed as a matter of law.
I.

THE FIRST AMENDMENT RIGHT TO EXPRESSIVE ASSOCIATION BARS
PLAINTIFF’S CLAIMS
A.

“[I]mplicit in the right to engage in activities protected by the First Amendment

[is] a corresponding right to associate with others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622
(1984).

This implicit freedom of expressive association exists because “[a]n individual’s

7

 freedom to speak, to worship, and to petition the government for the redress of grievances could
not be vigorously protected from interference by the State unless a correlative freedom to engage
in group effort toward those ends were not also guaranteed.” Id. In other words, freedom of
association “is crucial in preventing the majority from imposing its views on groups that would
rather express other, perhaps unpopular, ideas.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 647–
48 (2000).
Freedom of association “plainly presupposes a freedom not to associate.” Roberts, 468
U.S. at 623. “The forced inclusion of an unwanted person in a group infringes the group’s
freedom of expressive association if the presence of that person affects in a significant way the
group’s ability to advocate public or private viewpoints.” Boy Scouts, 530 U.S. at 648. Thus,
explaining that “the Constitution looks beyond written or spoken words as mediums of
expression,” the Supreme Court unanimously held that freedom of association allowed private
parade organizers to exclude from the parade “a group imparting a message the organizers do not
wish to convey.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 559, 566,
569 (1995). The Supreme Court likewise held that the freedom of association allowed the Boy
Scouts to revoke the membership of an assistant scoutmaster whose conduct, that organization
believed, “would derogate from [its] expressive message.” Boy Scouts, 530 U.S. at 661.
B.

“To determine whether a group is protected by the First Amendment’s expressive

associational right,” a court must first “determine whether the group engages in ‘expressive
association.’” Boy Scouts, 530 U.S. at 648. If a group engages in expressive association, the
court must then “determine whether the forced inclusion” of an individual “would significantly
affect the [group’s] ability to advocate public or private viewpoints.” Id. at 650.

8

 1.
association.

Plaintiff does not dispute that the Archdiocese engages in expressive

“[A]n association that seeks to transmit . . . a system of values engages in

expressive activity.” Boy Scouts, 530 U.S. at 650. Churches, like other religious entities, are
“dedicated to the collective expression and propagation of shared religious ideals.” HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 200 (2012) (Alito, J.,
concurring).
The Decree issued by the Archdiocese to the Brebeuf Jesuit Preparatory School, and
attached by Plaintiff to his complaint, demonstrates that the Archdiocese both engages in
religious expression and seeks to safeguard that religious expression by expelling from its
associational umbrella entities that do not conform to its expressive message. (Compl. Ex. B.)
In the Decree, the Archbishop explained that “it is [his] canonical responsibility to oversee faith
and morals as related to Catholic identity within the Archdiocese of Indianapolis.” (Id.) After
noting that the Brebeuf Jesuit Preparatory School had “chosen not to implement changes in
accord with the doctrine and pastoral practice of the Catholic Church,” the Archbishop decreed
that the school “can no longer use the name Catholic and will no longer be identified or
recognized as a Catholic institution by the Archdiocese of Indianapolis.” (Id.)
Courts must “give deference to an association’s assertions regarding the nature of its
expression.” Boy Scouts, 530 U.S. at 653. The Archdiocese states in its motion to dismiss that it
views marriage as being “between one man and one woman” and that it believes “that the
Church’s teaching on male-female marriage is particularly necessary to provide to children.”
(Archdiocese Mem. at 5.) The Archdiocese’s representation to the Court constitutes, as a matter
of law, “the nature of [its] expression with respect to” marriage. Boy Scouts, 530 U.S. at 651
(accepting the Boy Scouts’ statements in its Supreme Court briefs as sufficient “to determine the

9

 nature of the Boy Scouts’ expression”). The Archdiocese’s position on marriage is, of course,
not universally held. See, e.g., Obergefell, 135 S. Ct. at 2608. But “it is not the role of the courts
to reject a group’s expressed values because they disagree with those values.” Boy Scouts, 530
U.S. at 651.
2.

The Archdiocese argues that permitting Catholic schools within its

boundaries to employ teachers who have openly entered into same-sex marriages “would
‘significantly affect [its] ability to advocate public or private viewpoints’” with respect to its
views on marriage. (Archdiocese Mem. at 16–17 (quoting Boy Scouts, 530 U.S. at 641, 650).)
The Court “must . . . give deference to an association’s view of what would impair its
expression.” Boy Scouts, 530 U.S. at 653.
The Archdiocese’s position—that its expression of its views on marriage would be
significantly impaired—is supported by binding Supreme Court precedent. In Boy Scouts, the
Supreme Court held that “the presence of” an openly-gay man “as an assistant scoutmaster
would . . . interfere with the Boy Scouts’ choice not to propound a point of view contrary to its
beliefs.” 530 U.S. at 654. Similarly here, Plaintiff is in a “public, same-sex marriage.” (Compl.
Ex. C; see also Compl. Ex. A at 4 (noting Plaintiff’s “relatively new role as a husband”).) “It
would be difficult for” the Archdiocese “to sincerely and effectively convey a message of
disapproval of certain types of conduct if, at the same time, it must accept members who engage
in that conduct.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 863 (7th Cir. 2006).
To be sure, as Plaintiff was not employed by the Archdiocese, Plaintiff has not directly
been excluded from the Archdiocese in the way that the assistant scoutmaster was excluded from
the Boy Scouts. Rather, in this case, the assistant scoutmaster is analogous to Cathedral, and Boy

10

 Scouts affirms that the First Amendment protects the Archdiocese’s constitutional right to expel
schools whose presence would interfere with the Archdiocese’s expressive message.
Many people may disagree with the Archdiocese’s actions. But, as the Supreme Court
has explained, “public or judicial disapproval of a tenet of an organization’s expression does not
justify . . . effort[s] to compel the organization to accept members where such acceptance would
derogate from the organization’s expressive message.” Boy Scouts, 530 U.S. at 661.
C.

Even though Plaintiff is not a government actor, the First Amendment shields the

Archdiocese from Plaintiff’s claims, as allowing his claims to proceed would cause a
government actor—the Court—to subvert the Archdiocese’s constitutional rights.
The Supreme Court long ago held that “the action of state courts and of judicial officers
in their official capacities is to be regarded as action of the State,” which is why the United
States Constitution prohibits courts from enforcing racially restrictive covenants. Shelley v.
Kraemer, 334 U.S. 1, 14 (1948). Accordingly, “the application of state rules of law in state
courts in a manner alleged to restrict First Amendment freedoms constitutes ‘state action’ under
the Fourteenth Amendment.” Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991); see
Barlow v. Sipes, 744 N.E.2d 1, 9 (Ind. Ct. App. 2001) (same); accord NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 916 n.51 (1982); cf. Boy Scouts, 530 U.S. at 645–46 (private action
by aggrieved individual under state public-accommodation law barred by First Amendment).
This doctrine applies equally in private-party tort suits. See, e.g., Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 50 (1988). “The Supreme Court has established that the imposition of
tort liability constitutes state action which implicates the First and Fourteenth Amendments.” In
re Factor VIII or IX Concentrate Blood Prods. Litig., 25 F. Supp. 2d 837, 840 (N.D. Ill. 1998)
(citing N.Y. Times v. Sullivan, 376 U.S. 254, 265 (1964)). “Imposition of civil liability, such as

11

 the award of money damages, is treated no less stringently than direct regulation on speech.” In
re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 792 (3d Cir. 1999). And “the
presence of activity protected by the First Amendment imposes restraints on the grounds that
may give rise to damages liability and on the persons who may be held accountable for those
damages.” Claiborne Hardware Co., 458 U.S. at 916–17.
This doctrine makes logical sense. By seeking money damages from the Archdiocese,
Plaintiff’s lawsuit invokes the Court’s power in a manner that, if successful, will inhibit the
Archdiocese and other expressive associations in Indiana from exercising their constitutional
rights. In the landmark case of New York Times v. Sullivan, the Supreme Court explained that
“[t]he fear of damage awards . . . may be markedly more inhibiting than the fear of prosecution
under a criminal statute.” 376 U.S. at 277; see also Snyder v. Phelps, 562 U.S. 443, 451 (2011)
(“The Free Speech Clause of the First Amendment . . . can serve as a defense in state tort suits.”).
So, too, here.
II.

THE CHURCH-AUTONOMY DOCTINE BARS PLAINTIFF’S CLAIMS
A.

“The church-autonomy doctrine respects the authority of churches to select their

own leaders, define their own doctrines, resolve their own disputes, and run their own
institutions free from governmental interference.” Korte v. Sebelius, 735 F.3d 654, 677 (7th Cir.
2013) (internal quotation marks omitted). “This dimension of religious liberty has a foothold in
both Religion Clauses, and is perhaps best understood as marking a boundary between two
separate polities, the secular and the religious, and acknowledging the prerogatives of each in its
own sphere.” Id. (citation omitted).
“The Supreme Court has long held that the First Amendment requires civil courts to
refrain from interfering in matters of church discipline, faith, practice and religious law.”
McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334, 336–37 (Ind. Ct. App. 1999) (citing
12

 Watson v. Jones, 80 U.S. (13 Wall.) 679, 727 (1871)). “Thus, civil courts are precluded from
resolving disputes involving churches if ‘resolution of the disputes cannot be made without
extensive inquiry . . . into religious law and polity . . . .’” Id. (quoting Serbian E. Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 709 (1976)). The church-autonomy doctrine affords
religious organizations “an independence from secular control or manipulation, in short, power
to decide for themselves, free from state interference, matters of church government as well as
those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.
Am., 344 U.S. 94, 116 (1952). Indeed, not only are secular courts prohibited from interfering in
faith-based disputes, “[w]hen ecclesiastical tribunals decide such disputes . . . the Constitution
requires that civil courts accept their decisions as binding upon them.”

Hosanna-Tabor

Evangelical Lutheran Church & Sch., 565 U.S. at 187 (internal quotation marks omitted).
That being said, “the First Amendment does not entirely prohibit courts from opening
their doors to religious organizations.” Matthies v. First Presbyterian Church of Greensburg
Indiana, Inc., 28 N.E.3d 1109, 1113 (Ind. Ct. App. 2015) (internal quotation marks omitted). “A
court can apply neutral principles of law to churches without violating the First Amendment.” Id.
“Application of neutral principles of law to a church defendant, however, has occurred only in
cases involving church property or in cases where a church defendant’s actions could not have
been religiously motivated.” Id. at 1113–14 (citing Brazauskas v. Fort Wayne–S. Bend Diocese,
Inc., 714 N.E.2d 253 (Ind. Ct. App. 1999)) (emphasis added).
B.

This case cannot be resolved applying only neutral principles of law. Plaintiff’s

own filings demonstrate that Plaintiff will ask this Court to “review and interpret” the
Archdiocese’s interpretation and application of the Catholic faith, thus resulting in the forbidden
“excessive entanglement between church and state.” Id. at 1113.

13

 Both of Plaintiff’s tort claims against the Archdiocese require Plaintiff to demonstrate
that the Diocese’s actions were not “justified.” See, e.g., Winkler v. V.G. Reed & Sons, Inc., 638
N.E.2d 1228, 1235 (Ind. 1994) (intentional interference with contract); Dietz v. Finlay Fine
Jewelry Corp., 754 N.E.2d 958, 970 (Ind. Ct. App. 2001) (intentional interference with
employment relationship). In determining whether conduct is justified, Indiana courts consider
seven factors, including “the nature of the defendant’s conduct”; “the defendant’s motive”; “the
interests sought to be advanced by the defendant”; and “the social interests in protecting the
freedom of action of the defendant and the contractual interests of the plaintiff.” Winkler, 638
N.E.2d at 1235 (quoting Restatement (Second) of Torts § 767 (1977)). Although “[t]he weight
to be given [to] each consideration may differ from case to case . . . [t]he existence of a
legitimate reason for the defendant’s actions provides the necessary justification to avoid
liability.” Bilimoria Computer Sys., LLC v. Am. Online, Inc., 829 N.E.2d 150, 157 (Ind. Ct. App.
2005).
C.

At their core, Plaintiff’s claims challenge the legitimacy of the Archdiocese’s

decision. For example, in evaluating the Archdiocese’s motive and interests as required by
Indiana law, the finder of fact would necessarily need “to review and interpret [the Catholic
Church’s] constitution, laws, and regulations” in deciding whether Archbishop Thompson
properly applied Catholic doctrine, or whether his decision was pretextual in nature. Matthies,
28 N.E.3d at 1113. A finder of fact would also necessarily need to review and rule upon entirely
religious texts, such as the Code of Canon Law and the Catechism of the Catholic Church. The
Sacrament of Marriage alone spans no fewer than 111 canons, and 66 sections of the Catechism
of the Catholic Church.

See 1983 Codex Iuris Canonici cc.1055–1165; Catechism of the

14

 Catholic Church §§ 1601–1666. In short, Plaintiff’s suit asks this Court to conduct an “extensive
inquiry . . . into religious law and polity.” Milivojevich, 426 U.S. at 709.
This the Court cannot do. Rather, the First Amendment “mandate[s] that civil courts
shall not disturb the decisions of the” Archdiocese, and instead “must accept such decisions as
binding on them.” Id. In sum, the United States Constitution forbids the Court from questioning
the legitimacy of Archbishop Thompson’s interpretation of the Catholic faith. The churchautonomy doctrine accordingly demands that this action be dismissed.
D.

The question whether Plaintiff’s suit will require an “excessive entanglement

between church and state,” Matthies, 28 N.E.3d at 1113, is not hypothetical. In his opposition to
the Archdiocese’s motion to dismiss, Plaintiff argues that discovery is necessary “to determine
whether the Archdiocese has instructed schools to terminate teachers alleged to violate [other]
Church teachings, such as divorce and re-marriage without annulment, unmarried co-habitation,
marriage without the sacrament, or other practices.” (Pl. Opp. To Mot. To Dismiss at 10.)
Plaintiff thus asks this Court to: (i) determine what Catholic doctrine says with regard to these
and other Catholic teachings; (ii) determine how, under Catholic doctrine, violation of these
teachings compares to violation of Catholic teaching on same-sex marriage; and (iii) decide
whether the Archdiocese’s decision to enforce Catholic teaching in this manner is consistent with
the Catholic faith or is pretextual.
The First Amendment forbids secular courts from wading into such “quintessentially
religious controversies.” Milivojevich, 426 U.S. at 720. This Court cannot “substitute[] its
interpretation” of Catholicism “for that of the” Archdiocese and Archbishop Thompson. Id. at

15

 721. Rather, “the First Amendment commits exclusively” the legitimacy of the Archdiocese’s
decision as a matter of Catholic law to the judgment of the Archdiocese. Id. at 720.3
CONCLUSION
The First Amendment demands that this lawsuit be dismissed. Perhaps anticipating
lawsuits like this one, the Supreme Court, in cementing Plaintiff’s constitutional right to civilly
marry the person of his choosing, took care both to emphasize that “[m]any who deem same-sex
marriage to be wrong reach that conclusion based on decent and honorable religious or
philosophical premises,” and to reinforce the longstanding right of religious organizations to
freely exercise their faith, which may include “advocat[ing] . . . that, by divine precepts, samesex marriage should not be condoned.” Obergefell, 135 S. Ct. at 2602, 2607.
The Archdiocese has done exactly that. The Archdiocese determined that, consistent
with its interpretation of Church teachings, a school within its diocesan boundaries cannot
identify as Catholic and simultaneously employ a teacher in a public, same-sex marriage. Many
may lament the Archdiocese’s determination. But the First Amendment forbids this Court from
interfering with the Archdiocese’s right to expressive association, and from second-guessing the
Archdiocese’s interpretation and application of Catholic law. For these reasons, this action must
be dismissed.

3

This lawsuit may also be precluded by the ministerial exception, which “bar[s] the
government from interfering with the decision of a religious group to fire one of its ministers.”
Hosanna-Tabor Evangelical Lutheran Church, 565 U.S. at 181; see also id. at 190 (noting that
“the ministerial exception is not limited to the head of a religious congregation,” but declining
“to adopt a rigid formula for deciding when an employee qualifies as a minister”). At this stage
of the litigation, the United States does not take a position on whether the ministerial exception
precludes this lawsuit.

16

 Dated: September 27, 2019

Respectfully submitted,
/s/ Josh J. Minkler
JOSH J. MINKLER (Ind. Bar
#18483-49) United States Attorney
United States Attorney’s Office
for the Southern District of Indiana
10 W. Market St., Suite 2100
Indianapolis, IN 46204
Telephone: (317) 226-6333
Email:
josh.minkler@usdoj.gov
ERIC S. DREIBAND
Assistant Attorney General
/s/ Elliott M. Davis (per 28 U.S.C. § 517)
ELLIOTT M. DAVIS
Acting Principal Deputy
Assistant Attorney General
ERIC W. TREENE
Special Counsel
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave. NW
Washington, DC 20530
Telephone: (202) 514-4609
Email:
elliott.davis@usdoj.gov

17

 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon the following by this
Court’s electronic filing system, and by mailing to them a copy through the United States mail,
first class, this 27th day of September, 2019:

Kathleen A. DeLaney
Christopher S. Stake
DeLaney & DeLaney LLC
3646 North Washington Blvd.
Indianapolis, IN 46205

John S. (Jay) Mercer
Mercer Belanger
One Indiana Square
Suite 1500
Indianapolis, IN 46204

Attorneys for Plaintiff

Attorney for Defendant

/s/ Josh J. Minkler
JOSH J. MINKLER

18