Records sealed over Ind. church in vitro lawsuit

INDIANAPOLIS (AP) -- A federal judge has given a Catholic diocese in northern Indiana permission to keep some records under seal as lawyers prepare for a possible trial over a former teacher's claim that she was fired because she had in vitro fertilization.

Emily Herx's lawsuit against the Diocese of Fort Wayne-South Bend addresses the constitutional balance between reproductive rights and religious rights and could determine which one trumps the other.

Although both sides say the latest move is routine in cases involving employment, it seems to have particular significance in Herx's case because the key to the dispute is whether religious requirements are a condition of her employment as a parish school teacher.

The order filed May 17 in federal court in Fort Wayne applies to both sides. It covers personnel records, medical records and financial records. It also covers records involving parishioners and students.

A spokesman for the Diocese of Fort Wayne-South Bend said Monday it's routine to keep employment records confidential in court cases.

"It's pretty much standard operating procedure," Sean McBride said.

Herx's attorney, Kathleen Delaney of Indianapolis, agreed — to a point.

Delaney didn't oppose the confidentiality motion, which covers both sides and applies through the pretrial phase when both sides share the evidence they might present during trial. But, she noted, the whole case revolves around the very issues that the diocese wants to keep private.

"It will become more difficult to seal records as the case progresses because the courts are supposed to be open and public," Delaney said. Court rules for the 7th U.S. Circuit, which includes Indiana, bar judges from "rubber stamping" requests to close records.

Herx, of Hoagland, Ind., sued the diocese in April 2012, saying her teaching contract was not renewed after diocese officials learned she had undergone in vitro fertilization, which is banned under Catholic doctrine. The Equal Employment Opportunities Commission ruled in her favor in January 2012.

Her attorneys contend her dismissal is a case of gender discrimination and of disability discrimination based on her infertility.

Diocese attorneys had asked U.S. District Judge Robert Miller to dismiss Herx's complaint because of a federal law that prevents religious workers from suing their employers for job discrimination. Diocese teachers are required by their contracts to abide by Catholic tenets, and any court review of church teachings or employment practices would intrude on the church's right to make decisions based on religion, they said.

But Miller rejected the diocese's request for dismissal in March, clearing the way for a trial.

The U.S. Supreme Court ruled unanimously early last year that religious workers can't sue their employers for job discrimination because anti-discrimination laws allow for a "ministerial exception." But the justices failed to define who was and who wasn't a religious employee.

The church bars in vitro fertilization, which involves mixing egg and sperm in a laboratory dish and transferring resulting embryos into the womb.