Attorneys for Appellant
Attorneys for Appellee
Stephen M. Terrell William T. Hopkins, Jr.
Landman & Beatty Michael A. Scheer
Indianapolis, Indiana Barnes & Thornburg
Fort Wayne, Indiana
Edward N. Kalamaros & Associates
South Bend, Indiana
Appeal from the St. Joseph Superior Court, No. 71D07-9302-CP-10017
The Honorable Michael D. Cook, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0102-CV-55
September 25, 2003
Shepard, Chief Justice.
We conclude that even if this scenario occurred as she describes, her suit
fails under the First Amendments Free Exercise Clause.
Brazauskas sued the Diocese (which includes the Parish) and Father Martelli on a
variety of grounds, including breach of contract, breach of the covenant of good
faith and fair dealing, wrongful discharge, fraud, defamation, promissory estoppel, and infliction of
emotional distress. All these claims were eventually dismissed in various proceedings.
While her employment lawsuit was pending, Brazauskas applied for a position as Acting
Director of Notre Dames Program for Church Leaders (PCL), a sabbatical program.
In June 1993, a search committee recommended her for the job.
Father Malloy rejected the recommendation, believing that Notre Dame should not hire someone
who has an active lawsuit against the local bishop until that matter [is]
resolved. (Id. at 422.) He explained, I consider a [C]atholic university to
desirably have a positive and respectful relationship to the [C]atholic church community, including
the local bishop, and hiring someone who had a pending lawsuit would be
a gesture of ill will until such a matter was resolved by the
courts. (Id. at 423.)
This view is consistent with Ex Corde Ecclesiae, a 1990 directive of Pope
John Paul II based on Roman Catholic canon law that addresses the relationship
between Catholic universities and local diocesan bishops. Ex Corde Ecclesiae encourages close
personal and pastoral relationships between university and Church authorities characterized by mutual trust,
close and consistent cooperation and continuing dialogue. (Appellants App. at 1013.)
After she failed to receive the PCL position, Brazauskas added claims for blacklisting
and tortious interference with a business relationship to her lawsuit against Father Martelli
and the Diocese. See Ind. Code Ann. §§ 22-5-3-1, 2 (West 1991).
See footnote Brazauskas did not challenge Father Malloys or Notre Dames legal
right to deny her the PCL position for the reason Father Malloy gave.
In February 2001, the trial court dismissed both of these claims for lack
of subject matter jurisdiction. The Court of Appeals affirmed.
Fort Wayne-South Bend Diocese, Inc., 755 N.E.2d 201 (Ind. Ct. App. 2001).
We granted transfer, and now affirm, concluding that the trial court had jurisdiction
over the matter but that the Diocese defendants were entitled to judgment on
In 1997, the trial court denied the Diocese defendants motion for summary judgment
on the tortious interference and blacklisting claims. On appeal of this ruling,
the Court of Appeals noted sua sponte that the Diocese defendants should have
challenged subject matter jurisdiction via motions to dismiss for lack of subject matter
jurisdiction under Indiana Trial Rule 12(B)(1) rather than via summary judgment motions.
See Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 714 N.E.2d 253, 259 (Ind.
Ct. App. 1999). Following that guidance, the Diocese defendants accordingly argue that
the trial court lacked subject matter jurisdiction over the tortious interference and blacklisting
claims under Rule 12(B)(1).
Other courts have resolved this procedural question differently. In Bryce v. Episcopal
Church, 289 F.3d 648 (10th Cir. 2002), the Tenth Circuit dealt with an
analogous claim brought by two church members claiming sexual harassment in the form
of remarks made during parish meetings about homosexuals and the two members homosexual
activities. Id. at 651-53. The church responded that the remarks were
part of ecclesiastical discussions on church policy, so the claims were barred.
Id. at 651.
Applying rules of federal procedure, the Tenth Circuit treated the churchs challenge as
a Rule 12(B)(6) motion to dismiss for failure to state a sufficient claim.
Id. at 654. It found no abuse of discretion by
the trial court in considering evidence beyond the pleadings, thereby converting the motion
to dismiss into a summary judgment motion, and affirmed judgment for the church.
Id. at 654, 660. See also McKelvey v. Pierce, 800 A.2d
840, 844 (N.J. 2002) (applying state rules of procedure and treating contract and
tort suit by former seminarian claiming damages stemming from unwanted homosexual advances as
motion for judgment on the pleadings that effectively became a summary judgment motion).
We agree with the approach taken by these two courts, and hold that
the trial court erred in concluding that it lacked jurisdiction over this matter.
A court with general authority to hear matters like employment disputes is
not ousted of subject matter or personal jurisdiction because the defendant pleads a
religious defense. Rather, pleading an affirmative defense like the Free Exercise Clause
may under certain facts entitle a party to summary judgment.
We will proceed with our review using the standard applicable to summary judgment,
as the trial court did not exclude matters submitted outside the pleadings.
See Ind. Trial R. 12(B), 56. We will therefore consider whether there
is any genuine issue of material fact and whether the Diocese defendants as
the moving parties are entitled to judgment as a matter of law.
T.R. 56. In doing so, we construe all facts and reasonable inferences
in the light most favorable to Brazauskas as the nonmoving party. See
State Farm Fire & Cas. Co. v. T.B., 762 N.E.2d 1227 (Ind. 2002).
Ind. Code Ann. §§ 22-5-3-1, 2 (West 1991).
In 1995, however, the General Assembly added an important exception:
An employer that discloses information about a current or former employee is immune from civil liability for the disclosure and the consequences proximately caused by the disclosure, unless it is proven by a preponderance of the evidence that the information disclosed was known to be false at the time the disclosure was made.
Ind. Code Ann. § 22-5-3-1(b) (West 2002).
Brazauskas does not claim that any of the alleged disclosures that led to her denial of the PCL position were false. She would therefore have no claim for blacklisting under the revised statute.
She would likewise not have a claim for tortious interference, because in Indiana
this tort requires some independent illegal action. See, e.g., Watson Rural Water
Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131 (Ind. Ct. App.
1989). Brazauskas only other allegation of illegal conduct is the blacklisting claim
(Appellants Br. at 18) so both would fail with no need to reach
the Diocese defendants constitutional argument.
In early November, Father Martelli sent copies of these letters to Father Malloy,
along with his own letter saying that the Trembath letters include charges and
accusations so alarming in nature that I would be remiss not to bring
them to your attention. (
Id. at 1081.) Martellis letter mentioned Brazauskas
only to explain that her termination had precipitated this verbal assault, and did
not criticize her or her actions. (Id.) Father Martelli stated that
he was writing for your information and not with the intent of causing
more trouble for anyone. (Id.) He copied the correspondence to Bishop
DArcy, among others.
Brazauskas does not explain how such a letter could support a reasonable inference that by making others aware of Trembaths accusations Father Martelli prevented her from getting the PCL position.
Her allegations against the Bishop are on similarly shaky factual ground. Both
Bishop DArcy and Father Malloy deny that they ever discussed the PCL position,
much less Brazauskas candidacy. (Appellants App. at 139-40, 422-24.) Brazauskas says
she can prove otherwise, through circumstantial evidence such as records of telephone calls
between the Bishop and Father Malloys office. (See Appellants Br. at 9-10.)
The evidence she offers is at most marginally sufficient to raise a
genuine issue of material fact, but for reasons explained below her claim would
fail in any event.
This argument is somewhat circular. We cannot simply accept that Ex Corde
Ecclesiae governed the alleged action without some review of the document.
Draskovich v. Pasalich, 151 Ind. App. 397, 401, 280 N.E.2d 69, 72 (1972)
(Notwithstanding the limitations imposed on the civil courts . . . the civil
courts can (and indeed must in some cases) look at ecclesiastical documents and
related evidence concerning religious rites, doctrines, polity and practices for the limited purpose
of determining the nature of the church organization.)
We also cannot accept without question an assertion that the courts may not
review the legality of an action because that action was pursuant to a
directive from higher church authority. See Employment Div. v. Smith, 494
U.S. 872 (1990). In Smith, the plaintiffs ingested peyote during a sacramental
ceremony of their Native American Church. Id. at 874. They
were consequently fired from their jobs at a drug rehabilitation organization and denied
unemployment benefits. Id.
The Supreme Court upheld the denial of benefits, holding that the Free Exercise
Clause does not exempt religiously motivated action from neutral laws of general applicability.
Id. at 881-82, 890. Therefore, under Smith, church directives such as
Ex Corde Ecclesiae are not the end of the story, because they do
not automatically insulate the faithful from such neutral laws of general applicability as
Indianas blacklisting statute.
This is not to say that Ex Corde Ecclesiae is wholly irrelevant to
this case. It establishes that higher church authority (namely, the Pope) has
directed Catholic universities such as Notre Dame and local Catholic diocese officials to
cooperate closely, communicate, and develop an environment of mutual trust. Bishop DArcy
and other diocesan personnel would therefore be acting in accordance with ecclesiastical directive
in keeping Father Malloy apprised of diocesan developments, including pending lawsuits, and in
coordinating with him on administrative and policy matters.
Smith is distinguishable in another important respect, because it did not implicate the
church autonomy doctrine. This doctrine deals with a churchs First Amendment right
to autonomy in making decisions regarding [its] own internal affairs, including matters of
faith, doctrine, and internal governance. Bryce, 289 F.3d at 655.
The Bryce court cited Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952),
in which the Supreme Court applied the First Amendment and struck down a
statute that reassigned control over a cathedral among church officials. In Kedroff,
the Court said that religious freedom encompasses an independence from secular control or
manipulation, in short, power [of churches] to decide for themselves, free from state
interference, matters of church government as well as those of faith and doctrine.
Id. at 116-17.
The Tenth Circuit concluded, and we agree, that [t]he Supreme Courts decision in
Employment Division v. Smith . . . does not undermine the principles of
the church autonomy doctrine. Bryce, 289 F.3d at 656. See also
EEOC v. Catholic Univ. of Am., 83 F.3d 455, 462 (D.C. Cir. 1996)
(Free Exercise clause forbids governmental action that encroaches on a churchs ability to
manage its internal affairs).
This doctrine does, of course, have limits. As the New Jersey Supreme
Court recently said, The First Amendment does not immunize every legal claim against
a religious institution and its members. The analysis in each case is
fact-sensitive and claim specific, requiring an assessment of every issue raised in terms
of doctrinal and administrative intrusion and entanglement. McKelvey, 800 A.2d at 844
(finding genuine issues of material fact as to whether former seminarians claim that
unwanted homosexual advances damaged his career prospects could be litigated without offending First
Brazauskas would have us apply the blacklisting statute and tort law to penalize communication and coordination among church officials (all answerable to higher church authority that has directed them to work cooperatively) on a matter of internal church policy and administration that did not culminate in any illegal act. Such a holding would violate the church autonomy doctrine and run counter to the Courts declaration in Cantwell v. Connecticut, 310 U.S. 296, 307 (1939): The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. See footnote
We therefore conclude that under these facts the Free Exercise Clause entitles the
defendants to summary judgment on Brazauskas blacklisting claim. Her tortious interference claim
fails for similar reasons, as well as the fact that she has not
proven any illegal conduct by the Diocese defendants.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in part and dissents in part with separate opinion.
Employment Div. v. Smith, 494 U.S. 872, 881 (1990), announced that the First
Amendment rarely bars application of a neutral, generally applicable law to religiously motivated
action. The Indiana blacklisting statute and common law tort of interference with
prospective advantage at issue here are neutral laws of general applicability. The
majority holds that, notwithstanding Smith, the Diocese is entitled to summary judgment as
a matter of law for two reasons. First, the majority finds that
the challenged activity here was communicative and that Smith contains an exception to
its general rule for Free Exercise claims connected with communicative activity. Second,
the majority finds that the challenged activity here is protected by the "church
autonomy doctrine" that survived Smith.
As to the communicative activity defense, the phrase from Smith cited by the
majority is part of a larger discussion in which the Supreme Court stated
its precedents could not be read to allow individuals to engage in otherwise
prohibited conduct merely because the conduct is accompanied by religious conviction. See
Smith, 494 U.S. at 882 (Our cases do not at their farthest reach
support the proposition that a stance of conscientious opposition relieves an objector from
any colliding duty fixed by a democratic government.) (quoting Gillette v. United States,
401 U.S. 437, 461 (1971)). As such, it does not establish an
exception from Smiths general rule for all communicative activity. At most, the
term "communicative activity" encompasses merely that communicative activity that is protected by constitutional
provisions other than the Free Exercise Clause. Smith, 494 U.S. at 881-82
(discussing prior cases). In my view, the communicative activity that forms the
basis of Brazauskass claims does not meet this standard.
As to the church autonomy doctrine defense, the Supreme Court has not yet
had occasion to make clear whether this doctrine survived
2 I find
it hard to reconcile
Smith with the doctrines continued vitality, at least as
applied to the facts of this case.
Smith held to be constitutional a law banning the sacramental use of peyote
because the law was both neutral and generally applicable. 494 U.S. at
878-82, 890. A central concern behind Smiths neutrality principle is the notion
that a private right to ignore neutral and generally applicable laws is, and
should remain, a constitutional anomaly. See Smith, 494 U.S. at 879, 885.
The arguments used to support the neutral and generally applicable standard cut
against the continued vitality of the church autonomy defense. Mere religious belief
has never been a cognizable shield from compliance with an otherwise valid law
prohibiting conduct the State is free to regulate. Smith, 494 U.S. at
879. Indeed, in the few cases where the U.S. Supreme Court applied
the church autonomy defense, the law in question was neither neutral nor generally
applicable. See Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church
in N. Am., 344 U.S. 94 (1952) (invalidating 1925 New York statute that
effectively put the Russian Orthodox churches of New York under the administration of
the Russian Church in America).
Even if the church autonomy defense survived Smith, I do not believe it
bars Brazauskass claim.
The church autonomy doctrine prohibits the government from lend[ing] its power to one
or the other side in controversies over religious authority or dogma. Smith,
494 U.S. 877. Since its inception, the doctrine has resonated most strongly
in cases involving members of the clergy because these are the cases that
run the greatest risk of forcing the government to take sides in a
factional religious dispute. But courts have not used the Free Exercise Clause
to bar claims by non-ministerial employees of a religious institution. See Shawna
Meyer Eikenberry, Note, Thou Shalt Not Sue the Church: Denying Court Access to
Ministerial Employees, 74 Ind. L.J. 269, 276 (1998).
Moreover, the church autonomy defense does not prohibit a state court from resolving
church disputes if the court can and does resort to neutral principles of
law and applies them in a secular fashion. See Jones v. Wolf,
443 U.S. 595, 602-04 (1979) (analyzing church property dispute by using neutral principles
of law). This is because in so doing, a state court avoids
making determinations of the underlying religious dispute.
In the present case, Brazauskas claims that certain individuals unlawfully denied her the
opportunity to work at a university. Neither party suggested, as the church
autonomy defense has traditionally required, that her prospective position would have involved ministerial-type
duties. To the extent that Brazauskass claim can be characterized as a
religious dispute at all, the church autonomy defense does not bar a claim
where neutral principles of law are available to resolve the case. The
Indiana blacklisting statute and the tort of interference with prospective advantage are religiously
neutral and generally applicable. Far from advantaging any particular religious faction or
group, the laws provide for the general welfare by protecting an open and
free market of labor in all spheres. The Legislature could have accommodated
custom by providing an exception to the law but it did not.
Neither the Indiana blacklisting statute nor the tort of interference with prospective advantage
benefits any one religious faction over any other. And just as there
was no contention in Smith that the Oregon drug law was an attempt
to regulate religious beliefs, neither is there any similar contention here. See
Smith, 494 U.S. at 882.