Roncalli High School can legally fire counselor over same-sex marriage, expert says

Roncalli High School is within its legal rights to terminate a guidance counselor after it was discovered she is married to a woman, a legal expert says.

But students, parents and advocacy groups are criticizing the Catholic school’s decision.

Shelly Fitzgerald, who has worked at the school for 15 years, is on paid administrative leave after school officials recently found out that she married a woman in 2014. The school said in a Facebook post Sunday night that employees must support the teachings of the Catholic church, including marriage “between a man and a woman,” and that expectation is clearly defined in employee contracts.

In a Facebook message distributed to some parents, Fitzgerald said school officials said she could resign or dissolve her marriage or risk being fired or not getting her contract renewed. 

A number of parents and students spoke out in support of Fitzgerald.

“We can’t bash Roncalli in this situation. Roncalli is not to be blamed for this decision. It’s the Archdiocese,” Junior Madison Aldrich said. “Unfortunately, Roncalli is taking the blame for it. And the name is being trashed and slandered. And that’s not what we want. Roncalli is a special place, and Fitzgerald is a special woman.”

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A spokesman for the Archdiocese of Indianapolis, which governs the school, declined to comment, saying the issue is a confidential personnel matter.

Fitzgerald declined to comment when reached by IndyStar Monday but said she has hired an attorney.

One legal expert interviewed by IndyStar said the school can legally terminate her employment.

Jim Bopp said there is nothing in Indiana law that specifically prohibits discrimination on the basis of sexual orientation but such language does exist in an Indianapolis ordinance.

“So then the question would be, does Roncalli have a defense against that ordinance being enforced to prohibit them from terminating an employee because they’re in a same-sex marriage,” he said. “And the answer is, without a doubt, there is a defense, and that is the First Amendment of the Constitution.”

Roncalli would fit in the definition of a religious institution and therefore be considered a “ministerial exception” to the anti-discrimination clause. According to Indianapolis municipal code, the ordinance does not apply to school, education, charitable or religious institution run by or affiliated with a church. 

“I don’t think there’s any doubt whatsoever that Roncalli enjoys 100 percent First Amendment protection for making sure in conducting their ministry that the people who are conducting that ministry, i.e. any of the employees, are conducting themselves so that they’re not hypocrites,” he said.

Regardless, Bopp said, Fitzgerald both violated the terms of her contract and lied to her employer about her personal life.

A second legal expert interviewed by IndyStar isn’t so sure.

Kevin Betz, a local employment attorney, said Fitzgerald may not necessarily fall under that exception.

“It will depend on what kind of duties she was performing and what her job actually was,” Betz said.

The south-side Catholic school and Archdiocese of Indianapolis defended their position regarding her potential termination after supporters began criticizing the school online over the weekend.

"As role models for students, the personal conduct of every teacher, guidance counselor and administrator and staff member, both at school and away from school, must convey and be supportive of the teachings of the Catholic Church," Roncalli officials posted on the school's Facebook page Sunday night.

The school's Facebook post had more than 1,900 comments and nearly 300 shares by 4:30 p.m. Monday as students and parents weighed in.

“Roncalli is a special place,” Shawn Aldrich, Madison’s father, told IndyStar in an interview Monday. “What makes it so special is the people. They don’t do it for a huge paycheck. Shelly Fitzgerald was instrumental in changing so many lives.”

Erica Garrity, whose 17-year-old son, Elijah Mahan, attends the school, said the school’s response has been “disheartening.”

“I think the Roncalli family is very powerful and very strong. I’m proud that he is a Rebel,” she said. “But I do want to make sure that when I send him to school every day he’s being led by people who lead with love and grace.”

Marianne Duddy-Burke, executive director of Dignity USA, an advocacy and support organization for LGBT Catholics, said she disagrees with the school’s position.

“I just think that it is wrong and flies in the face of Catholic values of love, compassion and justice,” she said, “to have accepted the good work of lesbian and gay and transgender employees and then to fire them, often without any kind of recourse.”

Duddy-Burke said Catholic organizations and schools are not held to the same standards as their secular counterparts because of the ministerial exception.

“If somebody is seen as being in a position where they’re responsible for passing on the religious teachings of an institution, they can be considered a minister, and the organization has the legal right to act,” she said.

But who falls under that exception? Does a math teacher count as a minister? A cafeteria worker?

“All of these cases are being tested, and there aren’t clear lines yet,” she said.

Two other cases similar to Fitzgerald’s have become public in the U.S. this year, according to New Ways Ministry, a LGBT+ Catholic advocacy organization.

In February, Jocelyn Morffi, then a first-grade teacher at a private Catholic school in Florida, was fired just days after her same-sex wedding. Later that month, Kristen Nelson, a softball coach at a Catholic high school in Michigan, resigned after a parent raised concerns about her relationship with her girlfriend.

Since 2007, more than 70 U.S. church workers, including heterosexual LGBT allies, have seen their employment affected by LGBT-related disputes, according to New Ways Ministry.

“This has been a trend going on now for about seven or eight years,” said Francis DeBernardo, executive director of New Ways Ministry. “We continue to hear of new cases, and I think at the root of it is the fact that Catholic leadership has not resolved itself to the fact that marriage equality for lesbian and gay people is now a social reality."

DeBernardo said members of church leadership appointed by popes Benedict and John Paul II are more legalistic when it comes to Catholic teachings. That’s less likely to be the case among bishops appointed by Pope Francis, he said.

In 2013, Pope Francis told a group of reporters he wouldn’t judge gay priests. And earlier this summer, a man who survived abuse by priests told reporters that Pope Francis said his sexual orientation doesn’t matter.

Call IndyStar reporter Holly Hays at (317) 444-6156. Follow her on Twitter: @hollyvhays.

Editor's note: An earlier version of this story mischaracterized the current employment status of Shelly Fitzgerald.