UPDATE, June 18, 11:30 a.m.: On June 17, the Archdiocese of Cincinnati filed a Notice of Appeal. The defendants’ appeal will likely focus on the determination that the “ministerial exception” does not apply because Dias is not a minister.

Dias won her lawsuit on the basis of the pregnancy discrimination claims, not the contract claim; she was not permitted to argue her contract claims because the court held that “discovery also yielded facts that Plaintiff admitted she was in a long-term homosexual relationship during her employment, and that she kept such fact secret from Defendants as she knew Defendants would view her relationship as a violation of the morals clause. Under such circumstances, the Court finds Plaintiff, with ‘unclean hands,’ cannot invoke a cause of action based on a contract she knew she was breaching.”

When Christa Dias became pregnant, she was a computer teacher for two schools in the Archdiocese of Cincinnati, Holy Family and St. Lawrence. She shared the good news with her principal when she was ready to plan her maternity leave, at five and a half months. Her principal congratulated her, but other school and church officials did not think the impending birth of this particular child was cause for celebration, because Dias is not married. She was fired three days later.

The first reason given for Dias’ termination was that she was pregnant and unmarried. Federal law prohibits firing a woman for being pregnant, but in these kinds of cases, Catholic schools sometimes get away with firing people for violating a prohibition on premarital sex that applies to men and women alike, pregnant or not. The pregnancy is the evidence, not the offense itself, so schools argue it isn’t pregnancy discrimination when they fire a pregnant woman. Dias’ pregnancy, however, was not the result of premarital sex. When she explained she had undergone in vitro fertilization (IVF) to her employers, she learned that was grounds for termination as well.

Dias sued for pregnancy discrimination and breach of contract. Since she brought suit, the daughter the archdiocese contends never should have been born has reached the age of two, and the Supreme Court decided an important case concerning the rights of religious organizations to discriminate against some employees. A jury awarded Dias more than $170,000 in back pay and punitive damages on June 3. While that is cause for some optimism, the arguments the archdiocese made in its attempt to keep the case out of court are a distressing example of the larger trend in “religious freedom” claims being made to deprive employees of the protections of the law. And the archdiocese is likely to appeal.

The archdiocese and schools argued Dias’ firing was not the result of pregnancy discrimination, but rather Dias’ violations of her employment contract, which required she “comply with and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church” by having a child through IVF. But the archdiocese also made the more audacious argument that the religion clauses of the First Amendment protect its right to discriminate if it so chooses and bar the secular court from looking into Dias’ contract claims at all.

The “Ministerial Exception” Defense: Protestant Computer Teachers Are Ministers of the Catholic Church

The archdiocese claimed it was not beholden to anti-discrimination laws on the basis of a constitutionally required exception recognized by last year’s Supreme Court decision in Hosanna-Tabor v. EEOC. In that case, a teacher and “commissioned minister” at a Lutheran school alleged she was fired in violation of the Americans With Disabilities Act. The Court held that the First Amendment bars the enforcement of anti-discrimination laws when a religious organization fires a minister. This “ministerial exception” had been recognized by lower courts as a protection of the rights of a church to choose its ministers and members without government interference. The question then became whether the teacher in question was a “minister.” The Court declined to provide a definition of “minister” but looked to the nature of the plaintiff’s position as a “called” teacher. Though she taught mostly secular subjects, her position required extensive religious training, entailed teaching religion and leading her students in prayer, and included benefits not granted to “lay” teachers. The Court concluded unanimously that she was a minister.

The ministerial exception is problematic, but justifiable insofar as individuals have reason to know they are considered ministers and have consented to religious control. Hosanna-Tabor protects the rights of religious groups to choose “who will preach their beliefs, teach their faith and carry out their mission.” If they don’t want ministers who are disabled, or Black, or women, they are free to discriminate against them.

Justice Clarence Thomas, per his concurrence, would have the ministerial exception apply to anyone an employer claims in good faith is a minister, seemingly without regard to whether an employee knew his employer considered him a minister. Justices Samuel Alito and Elena Kagan believe it “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

The Archdiocese of Cincinnati, however, argued that Dias is a minister despite the fact that the schools hired her to teach computers, with full knowledge that she is not even Catholic. It claimed that Dias is a minister of the Catholic Church because she is a “role model.” On this theory, every employee of a Catholic school is a minister. So the school would enjoy not just their existing right to decide, for example, they no longer want any Hispanic nuns teaching religion, but also the right to fire all Hispanic receptionists, crossing guards, or math teachers in violation of anti-discrimination law. Anyone who works for them is a minister, and ministers can be fired for any reason.

That is a claim to be outside the law. It is an example of the move from the concept of church autonomy—non-interference into the affairs of people who voluntarily join a religious group and wish to govern themselves—to claims for religious power that trump laws protecting outsiders and dissenters.

The court rejected the ministerial exception argument finding that Dias, having no religious duties, was not a minister and is protected from discrimination by the law. The archdiocese continued to make that argument, claiming new evidence that she performed ministerial functions. The archdiocese has also amended its standard employee contract since Dias signed it, explicitly characterizing school employees as “Ministerial.” This change will alert prospective employees who’ve read Hosanna-Tabor to the archdiocese’s intention to deny them the protection of anti-discrimination laws, but will be of limited use to any primary school teachers who have not found the time to keep up with the latest in the Supreme Court establishment jurisprudence.

The Lack of Jurisdiction Argument: Interpreting the Employment Contract Would Entangle the Secular Court in Religion

The archdiocese made a further claim to be outside the law in arguing the case must be dismissed because, even if Dias wasn’t a minister, the court could not interpret her contract since doing so would unconstitutionally entangle the court in religious matters. (The lawsuits challenging the contraceptive coverage regulation include similar entanglement arguments.) The argument basically goes like this: The contract requires compliance with Catholic teaching. The courts can’t say what Catholic teaching is. Only we can say what Catholic teaching is, so only we can say if the contract was violated.

Here’s the thing: A contract is an exchange of promises enforceable at law. If the archdiocese reserved the right to fire Dias at any time for any reason, un-reviewable by the courts, it didn’t actually make her a promise to employ her for any period of time. In Hosanna-Tabor, the Court explicitly declined to address whether ministers could sue their employers for reasons other than discrimination, such as breach of contract. The archdiocese’s entanglement argument here isn’t just an attempt to extend Hosanna-Tabor to deprive ministers of contract protections, but to deprive non-ministers of any remedy at law as well.

The court rejected the archdiocese’s entanglement argument, holding that a determination as to whether there was a “meeting of the minds” that agreeing to comply with church teaching was agreeing not to have a child through artificial insemination required a factual finding by a jury.

However, the archdiocese did have a point about the difficulty of determining whether any particular action breaches an agreement to “comply with Catholic teaching.” Dias didn’t know the Catholic Church opposed IVF and thought she was only agreeing to try “to be a Christian woman and follow the Bible.”

The archdiocese argued she agreed to something very different. To prove that Catholic teaching forbids IVF, the archdiocese attached as exhibits to one brief paragraphs 2,373 to 2,379 of the Catechism of the Catholic Church and a 23-page 1987 Vatican document on biomedical issues. So the archdiocese essentially claimed that through the term “Catholic teaching,” Dias’ employment contract incorporates each of the over 600 pages of the Catechism, every papal encyclical, a statement by the Committee on the Doctrine of the Faith, and who knows what else.

That can’t be a reasonable interpretation of a contract. And even the new version of the employee contract on the archdiocese’s website, now explicitly incorporating and linking to the Catechism, won’t solve the problem. Even for an employee with an encyclopedic knowledge of the Catholic Catechism, whether or not a particular action complies with Catholic teaching is not necessarily black and white. Understanding, explaining, debating Catholic doctrine is something theologians dedicate whole careers to. And checking the Catechism website won’t give you answers that require an exercise of individual conscience.

The point of a contract is that you can rely on the promises made. A contract that leaves what is permissible up to the ad hoc theological determinations of Human Resources regarding a religion you don’t practice does not provide certainty on which one can rely. The archdiocese itself acknowledges that secular courts are not competent to decide what does and does not violate Catholic teaching, so how in the world is Protestant Christa Dias supposed to?

Examples of fireable offenses from real life and lawsuits include: advocating for the ordination of women, refusing to recant your support for gay marriage, admitting disagreement with Church dogma to your principal in private, being pregnant a suspiciously short time after your wedding, declining to document for your boss what your pastor thinks of you, being overheard discussing your wedding plans, and including the name of your partner of the same sex in your mother’s obituary. (It isn’t the basis of Dias’ discrimination claim, but she is gay and lives with her partner, which the archdiocese predictably argued undermines her credibility.)

Also, consider this: If you run into your boss at the drugstore with a box of condoms in your hands, you are going to have a pretty tough time arguing you didn’t know you were violating Catholic teaching in light of the bishops ongoing, widely-reported scorched earth campaign against the contraceptive coverage mandate in the Affordable Care Act.

Other, less common violations of Catholic teaching might include advocating for the Paul Ryan budget, ending treatment of a family member in a vegetative state, driving a friend to get contraception, having a vasectomy, openly supporting the death penalty, opposing immigration reform, criticizing the Vatican’s treatment of U.S. nuns, and skipping mass. Something that would definitely not be in keeping with Catholic teaching would be attending a mosque or a synagogue on a regular basis and denying the divinity of Jesus Christ.

But even the most orthodox of Catholics are sinners. If every violation of Catholic teaching can cost you your job, you can’t rely on having one. If claims like those made by the archdiocese are accepted in other cases, then it is essentially impossible to enter into a contract with a religious organization; you can only be an at-will employee. And it isn’t only in the employment context that the trend in religious freedom claims suggests one can’t rely on the representations of a Catholic-affiliated organization.

Claims that whatever a Catholic-affiliated organization does is what you should have expected, that its contracts can’t be adjudicated, and its religious freedoms trump any objective by the government add up to a larger vision of the Catholic-affiliated organization as a black box, unaccountable to individuals and unregulated by the government.

Telling people who don’t like that to stay away from the black box isn’t enough. These organizations are too dominant in their fields (education, social services, health care), involved in the public sphere, and entrusted with taxpayer funds to just avoid. Certainly, as critics hear regularly, “the Catholic Church is not a democracy.” Indeed, it is an anti-democratic hierarchy that rejects the equality norms of the United States, but it and its affiliates are operating within a democracy with a system of laws. That those laws protect people like Christa Dias and entitle her to make her case to a jury is not a violation of religious freedom.