Filed: 3/1/2021 1:49 PM

Clerk
Marion County, Indiana

STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) SS:
COUNTY OF MARION ) CAUSE NO: 49D01-1907-PL-027728

JOSHUA PAYNE-ELLIOTT, )
)
Plaintiff, )
)
v. )
)
ROMAN CATHOLIC ARCHDIOCESE )
OF INDIANAPOLIS, INC., )
)
Defendant. )

PLAINTIFF JOSHUA PAYNE-ELLIOTT’S RESPONSE IN OPPOSITION

TO ARCHDIOCESE’S MOTION FOR JUDGMENT ON THE PLEADINGS

Plaintiff Joshua Payne-Elliott (“Payne-Elliott”), by counsel, respectfully files his response

in opposition to Defendant Roman Catholic Archdiocese of Indianapolis, Inc. (“Archdiocese”)’s

Motion for Judgment on the Pleadings.

I. INTRODUCTION

For more than 18 months, the Archdiocese has unsuccessfully sought dismissal of this

lawsuit through repetitive and serial motions practice. The Archdiocese filed a Motion to Dismiss

and lost. It filed a Motion to Reconsider and lost. The Archdiocese unsuccessfully sought

permission to file an interlocutory appeal. It filed a petition for writ of mandamus in the Indiana

Supreme Court and lost. The Trial Court (and Indiana Supreme Court) correctly decided the

Archdiocese’s prior motions. Undeterred, the Archdiocese filed a Motion for Judgment on the

Pleadings repeating arguments and defenses that have already been rejected in this case. The

Motion should be denied.

For thirteen years, Payne-Elliott worked as an outstanding world language and social

studies teacher at Cathedral High School (“Cathedral”). Payne-Elliott is a gay man and married
his husband in 2017. Cathedral renewed Payne-Elliott’s annual teaching contract three times after

learning of his engagement to a same-sex partner, with the most recent renewal occurring on May

21, 2019. Just a few weeks later, on June 23, 2019, Cathedral terminated Payne-Elliott’s

employment. At the termination meeting, which was audio-recorded, Cathedral’s President told

Payne-Elliott that the Archdiocese had directed Cathedral to terminate Payne-Elliott because of

his sexual orientation and marital status. Cathedral’s President said it “feels like [we have] a gun

to our head.” On July 10, 2019, Payne-Elliott sued the Archdiocese for unlawfully interfering with

his employment and contract with Cathedral. Payne-Elliott has not filed employment

discrimination claims – it is undisputed that the Archdiocese never employed Payne-Elliott.

The Archdiocese does not deny these facts. The Archdiocese instead asks the Court (again)

to rule that civil courts do not have the power to decide whether the Archdiocese’s actions were

legal or justified. This argument, at least implicitly, seeks a broad ruling that would immunize the

Archdiocese from suit in cases involving Indiana business tort claims. The Archdiocese is not

above the law, and the First Amendment does not provide absolute, blanket protection for religious

organizations from Court oversight. Courts have long resolved cases against religious entities –

from slip and fall cases, to clergy abuse cases, to employment related cases – all using neutral

principles of law and enforcing laws of general and neutral applicability. 1 That is all Payne-Elliott

asks the Court to do.

The Archdiocese also argues that the ministerial exception bars Payne-Elliott’s claims. The

ministerial exception was developed in employment discrimination cases under Federal law, but

has no application here. The ministerial exception is an affirmative defense, not a jurisdictional

1
The Archdiocese has filed lawsuits as a Plaintiff in civil courts, demonstrating that it will avail itself of the Court’s
jurisdiction when it suits them. See, e.g., Roman Catholic Archdiocese of Indianapolis v. Travelers Ins. Co., No. 1:12-
cv-01246-JMS-DKL, 2013 U.S. Dist. LEXIS 32702 (S.D. Ind. March 7, 2013); Roman Catholic Archdiocese of
Indianapolis, Inc. v. Metro. Sch. Dist. of Lawrence Twp., 945 N.E.2d 757 (Ind. Ct. App. 2011).

2
bar, and requires a highly fact-sensitive inquiry that is not possible at the current, pre-discovery

stage of the case. Moreover, whether the Archdiocese considered Payne-Elliott to be a minister is

immaterial – since the Archdiocese did not contract with or directly employ Payne-Elliott. Payne-

Elliott expects formal discovery to confirm that Cathedral – his employer – did not consider him

to be a minister while he was employed. The assertion of the ministerial exception will require

examination of evidence about whether Cathedral considered Payne-Elliott to be a “minister” or

treated him as a “minister” while he was teaching high school German language. Furthermore, the

United States Supreme Court’s opinion in Our Lady of Guadalupe School v. Morrissey-Berru

addressed federal statutory employment discrimination claims brought by an employee against an

employer and did not expand the ministerial exception to Indiana business tort claims or any other

common law claims. 140 S. Ct. 2049 (2020).

II. STATEMENT OF FACTS

A. Factual Background.

Cathedral is a Catholic school founded in 1918. Ex. C to Compl. The Archdiocese initially

owned Cathedral, but engaged the Brothers of Holy Cross to serve as faculty. Id. Eventually, the

Archdiocese turned over care to the Holy Cross brothers. Id. It remains affiliated with the Brothers

of Holy Cross today. Id.

From August 2006 to June 23, 2019, Payne-Elliott worked at Cathedral as a world language

and social studies teacher. Compl., ¶ 7. Cathedral employed Payne-Elliott pursuant to a teacher

contract that was renewed on an annual basis. Compl., ¶ 11. On May 21, 2019, Cathedral offered

Payne-Elliott a teaching contract for the 2019-20 school year, which Payne-Elliott accepted and

signed. Compl., ¶ 12, and Ex. A to Compl.

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 Payne-Elliott is a homosexual male who married his same-sex spouse in 2017. Compl., ¶

10. Payne-Elliott’s spouse teaches at Brebeuf Jesuit Preparatory School (“Brebeuf Jesuit”). Id. On

May 24, 2019, Cathedral’s President, Robert Bridges, told Payne-Elliott that Cathedral expected

to receive a letter from the Archdiocese stating that, for Cathedral to retain its recognition as a

Catholic school (and purportedly its tax-exempt status), it needed to adopt and enforce morals

clause language used in teacher contracts at Archdiocesan schools. Compl., ¶ 13.

On June 20, 2019, Brebeuf Jesuit issued a public statement announcing that, despite

pressure from the Archdiocese, it would not dismiss Payne-Elliott’s spouse, who it described as “a

highly capable and qualified teacher.” Compl., ¶ 14. The next day, on June 21, 2019, Archbishop

Charles C. Thompson issued a decree stating that the Archdiocese no longer recognized Brebeuf

Jesuit as a Catholic institution. Compl., ¶¶ 9, 15, and Ex. B to Compl.

Payne-Elliott chaperoned an international, school-sponsored trip for Cathedral, which

ended on June 21, 2019. Compl., ¶ 16. After his return, on Sunday, June 23, 2019, President

Bridges met with Payne-Elliott and informed him that Cathedral was terminating Payne-Elliott’s

employment, effective immediately, at the direction of the Archdiocese. Compl., ¶ 17. President

Bridges notified Payne-Elliott that the Archdiocese had “directed” Cathedral to terminate his

employment, and that Cathedral was terminating him in accordance with the Archbishop’s

directive. Compl., ¶ 18. President Bridges gave no performance-based reason for the decision

during the termination meeting and acknowledged that Payne-Elliott was “a very good teacher.”

Compl., ¶¶ 19-20. President Bridges stated that the sole reason for Payne-Elliott’s termination was,

“the Archbishop directed that we [Cathedral] can’t have someone with a public same-sex marriage

here and remain Catholic.” Compl., ¶ 21.

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 On June 23, 2019, Cathedral published a public letter to the “Cathedral Family” on its web

site (“Cathedral letter”). Compl., ¶ 22 and Ex. C to Compl. The Dear Cathedral Family letter

stated, in part, “Archbishop Thompson made it clear that Cathedral’s continued employment of a

teacher in a public, same-sex marriage would result in our forfeiting our Catholic identity due to

our employment of an individual living in contradiction to Catholic teaching on marriage.”

Compl., ¶ 23. The Cathedral letter further stated, “[t]herefore, in order to remain a Catholic Holy

Cross School, Cathedral must follow the direct guidance given to us by Archbishop Thompson

and separate from the teacher.” Compl., ¶ 24. The Cathedral letter stated that “Cathedral would

lose its 501(c)(3) [tax-exempt] status.” Ex. C to Compl.

On June 3, 2019, Payne-Elliott filed Charges of Discrimination with the Equal

Employment Opportunity Commission against the Archdiocese and Cathedral, alleging

employment discrimination in violation of Title VII of the Civil Rights Act. Compl., ¶4 n.1. Payne-

Elliott settled his claims with Cathedral on July 9, 2019. Payne-Elliott sued the Archdiocese on

July 10, 2019. Compl. Payne-Elliott sues for the Archdiocese’s intentional interference with

contractual relationship and intentional interference with employment relationship. Compl., ¶¶ 25-

37. Payne-Elliott had valid and existing employment and contractual relationships with Cathedral.

Compl., ¶¶ 26, 33. The Archdiocese knew about Payne-Elliott’s employment and contract with

Cathedral. Compl., ¶¶ 28, 34. The Archdiocese intentionally interfered with Payne-Elliott’s

employment and contractual relationships by demanding that Cathedral terminate his employment

and breach Payne-Elliott’s employment contract. Compl., ¶¶ 29, 35. The Archdiocese’s actions

were not justified. Compl., ¶¶ 30, 36. Payne-Elliott has suffered damages as a result. Compl., ¶¶

31, 37.

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 B. Procedural Background.

Payne-Elliott filed this lawsuit on July 10, 2019. On August 15, 2019, Senior Judge

Stephen R. Heimann was appointed as Special Judge with the consent of all parties. On August

20, 2019, the Archdiocese filed a Motion to Dismiss, and Memorandum in Support, pursuant to

Rule 12(B)(1) and 12(B)(6). Payne-Elliott filed his Response in Opposition to the Motion to

Dismiss on September 16, 2019. The Archdiocese filed a Reply on September 25, 2019.

On May 1, 2020, the Court denied the Archdiocese’s Motion to Dismiss in all respects. On

the Archdiocese’s Rule 12(B)(1) argument for lack of subject matter jurisdiction under the church

autonomy doctrine, the Court concluded that it could not “determine that the directive by the

Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical

body of Cathedral or of the Roman Catholic Church.” Order, p. 8. The Court further stated that

there were factual questions about Cathedral’s reasons for termination that did not depend on

Catholic doctrine (such as to purportedly retain an economic benefit), indicating that it could not

resolve these questions on a motion to dismiss. Order, pp. 8-9. The Court also rejected the

Archdiocese’s freedom of association defense, stating that the Archdiocese’s freedom of

association cases “were either brought by the State…or was brought by a claimant asserting” a

violation of state law. Order, p. 14. It also noted that Payne-Elliott’s case “is not about the

Archdiocese kicking out Payne-Elliott or excluding Payne-Elliott from entering into a relationship

with the Archdiocese.” Id. The Court noted, “it will be important for discovery to take place so

that the Court can have a better understanding of the underlying relationships between the entities.”

Id. In addressing the ministerial exception defense, the Court noted that it was not clear whether

Cathedral classified Payne-Elliott as a minister. Id. at 16. The Court also questioned whether the

Archdiocese had authority to classify Payne-Elliott as a minister, since, based on the Complaint,

6
it did not have authority to terminate Payne-Elliott on its own. Id. The Court determined that the

“issue of whether Payne-Elliott was a minister cannot be determined without additional discovery,

specifically discovery relating to who had the authority to make the ministerial decision, whether

a ministerial decision was actually made, or whether this is being brought up at this time simply

as a defense.” Id. The Court also concluded that “[w]ithout further discovery and with all

reasonable inferences in Payne-Elliott’s favor, it is possible that Payne-Elliott could prove that at

the time of his termination, the Archdiocese was not justified[.]” Id. at 11.

The Archdiocese filed its Answer to the Complaint on May 11, 2020. On the same day, it

filed a Motion to Reconsider Order on Motion to Dismiss. The Court did not rule on the Motion

to Reconsider, and it was deemed denied after five days by operation of Trial Rule 53.4(B). On

May 29, 2020, the Archdiocese filed a Motion for Certification of the Order on Motion to Dismiss.

The Court denied this Motion on June 29, 2020.

On August 17, 2020, the Archdiocese filed a Verified Petition for Writ of Mandamus and

Writ of Prohibition with the Indiana Supreme Court. On September 25, 2020, Special Judge

Heimann entered a Voluntary Order of Recusal for personal reasons. On December 10, 2020, the

Supreme Court issued a Published Order Denying Writ of Mandamus and Prohibition. In the same

Order, the Supreme Court also appointed the Hon. Lance D. Hamner to serve as Special Judge. On

January 26, 2021, the Archdiocese filed its Motion for Judgment on the Pleadings.

III. STANDARD OF REVIEW

“A motion for judgment on the pleadings…attacks the legal sufficiency of the pleadings.”

Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001) (internal citation omitted).

“The test to be applied…is whether, in the light most favorable to the non-moving party and with

every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim.”

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Id. (internal citation omitted). “In applying this test, the court may look only at the pleadings, with

all well-pleaded material facts alleged in the complaint taken as admitted, supplemented by any

facts of which the court will take judicial notice.” Id. (internal citation omitted). “A motion for

judgment on the pleadings should be granted only when it is clear from the face of the complaint

that under no circumstances could relief be granted.” Id. at 1151 (internal citation omitted). When

a motion for judgment on the pleadings under Rule 12(C) raises a defense of failure to state a claim

under Rule 12(B)(6), the Court “must accord the non-moving party ten days to amend as a matter

of right” if it grants the motion. Id. (quoting Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 49

(Ind. Ct. App. 1984)).

“A trial court may reconsider its prior rulings while the underlying matter is still pending.”

Lewis v. Tolliver (In re Unsupervised Estate of Lewis), 123 N.E.3d 670, 673 (Ind. 2019). However,

the Indiana Trial Rules generally discourage repetitive motions and motions to reconsider. See Ind.

Tr. R. 53.4. Such a motion “shall not delay…any proceedings in the case, or extend the time for

any further required or permitted action[.]” Ind. Tr. R. 53.4(A). “Unless such motion is ruled upon

within five (5) days it shall be deemed denied, and entry of service of notice of such denial shall

not be required.” Ind. Tr. R. 53.4(B). The Archdiocese’s motion for judgment on the pleadings

qualifies as a “repetitive motion,” since it advances the same losing arguments made in its motion

to dismiss. Although the Indiana Supreme Court’s Order in the Original Action notes that the

Special Judge has “authority” to “reconsider previous orders in the case,” this verbiage merely

parrots the applicable legal standard.

IV. ARGUMENT

Payne-Elliott has pled two Indiana business tort claims against the Archdiocese: intentional

interference with contract, and intentional interference with employment relationship. The

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Archdiocese seeks judgment on the pleadings arguing: (1) Plaintiff’s claims are barred under the

“church autonomy” doctrine; (2) Plaintiff’s claims are barred by the First Amendment freedom of

expressive association; (3) Plaintiff’s claims are barred by the ministerial exception; and (4)

Plaintiff has not pled sufficient facts to support the elements of his claims. These are the same

arguments (differently ordered) made in the Motion to Dismiss, and the Court denied each one.

Each of these arguments fail, and Defendant’s motion should be denied in all respects.

A. The “Church Autonomy” Doctrine Does Not Apply.

Plaintiff’s claims are not barred by “church autonomy,” either for lack of subject matter

jurisdiction 2 or otherwise. Although the First Amendment “requires civil courts to refrain from

interfering in matters of church discipline, faith, practice, and religious law,” it “does not entirely

prohibit courts from deciding issues related to religious organizations.” Christian Methodist

Episcopal Church v. Grimes, 132 N.E. 3d 930 (Ind. Ct. App. 2019) (internal citations omitted).

“Instead, courts can apply neutral principles of law to churches without violating the First

Amendment.” Id. (internal citations omitted); see also Brauzauskaus v. Fort Wayne-South Bend

Diocese, Inc., 796 N.E.2d 286, 293 (Ind. 2003) (“The Supreme Court…[held] that the Free

Exercise Clause does not exempt religiously motivated action from neutral laws of general

applicability.”) (citing Employment Div. v. Smith, 494 U.S. 872, 881-82, 890 (1990)). That is all

that Payne-Elliott asks this court to do.

First, church autonomy does not deprive the Court of jurisdiction. “[C]ourts with general

authority to hear matters like employment disputes are not denied subject matter

2
The Archdiocese unsuccessfully moved to dismiss for lack of “subject matter jurisdiction,” under Rule 12(B)(1)
under “church autonomy.” However, for purposes of its present motion, it claims that it “makes no difference” whether
this defense is jurisdictional, or an affirmative defense under Rule 12(B)(6). Arch. Br. at 15 n. 2. Since the Archdiocese
requests alternative forms of relief in its motion (judgment in its favor, and dismissal for lack of subject matter
jurisdiction), Payne-Elliott will address both.

9
jurisdiction…because the defendant pleads a religious defense.” Ind. Area Found. of the United

Methodist Church, Inc. v. Snyder, 953 N.E.2d 1174, 1178 (Ind. Ct. App. 2011) (citing Brazaukas, 796

N.E.2d at 290). “The First Amendment does not immunize every legal claim against a religious

institution and its members.” Id. (quoting Brazauskas, 796 N.E.2d at 293-94). “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.” Id. Therefore, the Archdiocese’s “church

autonomy” defense is best addressed on a motion for summary judgment, after discovery, rather than

on a Rule 12 motion. Calvary Temple Church, Inc. v. Paino, 827 N.E.2d 125, 137 (Ind. Ct. App.

2005) transfer granted and appeal dismissed, 841 N.E.2d 1133 (Ind. 2006) (finding that the

“appropriate procedure” was to treat the church’s 12(B)(1) motion to dismiss as a 12(B)(6) motion,

and converting the motion to a motion for summary judgment under Rule 56) (citing Brazauskas, 796

N.E.2d at 290).

The State of Indiana’s argument in its amicus brief that “the application of church autonomy

doctrine must be properly understood as an absolute immunity from litigation” is likewise flawed.

The State erroneously assumes (without fully describing or applying the underlying facts at issue)

that Payne-Elliott’s case questions “internal religious governance and doctrine.” It does not. Courts

cannot and should not dismiss a case any time the church autonomy doctrine is raised as a defense.

Courts (not the Archdiocese, and not the State) must independently evaluate whether it is possible to

litigate the dispute without deciding questions of religious governance, faith, or doctrine. Finding that

it could do so (or that it was at least possible to do so, based on the allegations in the Complaint), the

Trial Court correctly denied the Motion to Dismiss.

Second, and more importantly, the church autonomy defense does not apply here. Payne-

Elliott is not challenging Roman Catholic doctrine, and his case may be decided without encroaching

10
on the Archdiocese’s religious beliefs or entangling the Court in a religious controversy. Payne-

Elliott’s claims may be, and should be, decided by applying neutral principles of law. Payne-Elliott’s

intentional interference claims are based on legal elements of neutral and general applicability. See,

e.g., Brazauskas, 796 N.E.2d at 296 (Sullivan, J., dissenting) (noting that the “tort of interference with

a prospective advantage” was “religiously neutral and generally applicable.”). The Archdiocese

argues that it forced Cathedral to terminate Payne-Elliott’s employment for religious reasons, due to

the Church’s prohibition of same-sex marriage. But the Archdiocese goes too far by claiming

immunity from liability or suit simply because it has raised, rather than proven, a religious defense.

If the Archdiocese truly instructed Cathedral to terminate Payne-Elliott because of Church

teachings on marriage, one would expect discovery to confirm that the Archdiocese enforced marriage

teachings against heterosexuals and homosexuals alike. Discovery is necessary to determine whether

the Archdiocese’s directives to Cathedral and Brebeuf Jesuit were specifically targeted at terminating

Payne-Elliott and his spouse, as Payne-Elliott has alleged. Compl., ¶¶ 17-18, 23-24. Discovery is

necessary with respect to other employees of the Archdiocese (or schools within the Archdiocese’s

control) to determine whether the Archdiocese has instructed schools to terminate teachers alleged to

violate Church teachings on marriage, such as divorce and re-marriage without annulment, unmarried

co-habitation, marriage without the sacrament, or other practices.3 Non-party discovery from

Cathedral is also needed to determine whether Cathedral has taken any other steps to implement the

3
This would not require the Court or factfinder to impermissibly weigh the severity of religious offenses, as the
Archdiocese claims. Courts may perform such an analysis if “a plaintiff avers that truly comparable employees were
treated differently following substantially similar conduct.” Curay-Cramer v. Ursuline Acad. Of Wilmington, Del.,
Inc., 450 F.3d 130, 132 (3d Cir. 2006). Curay-Cramer’s outcome is distinguishable because the plaintiff attempted to
compare herself to males who had allegedly violated unrelated religious teachings. Id. at 139 n.7. Payne-Elliott is not
seeking to compare his conduct with employees who have allegedly violated any types of Church teachings, but those
who have engaged in substantially similar conduct – i.e., relationships outside a “valid” marriage. See Ex. 3 to Motion
for Judgment on the Pleadings (listing “[r]elationships that are contrary to a valid marriage” as a category of
“Default”). Same-sex marriage is not the only form of this – heterosexual couples may also engage in relationships
that the Catholic Church deems invalid.

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Archdiocese’s directives, other than terminating Payne-Elliott. Such evidence would bear on whether

the Archdiocese enforced Church teachings consistently against all employees or instead targeted

homosexuals. Such an inquiry does not require the Court to decide questions of Church doctrine. In

employment discrimination cases, Courts routinely evaluate the honesty of an employer’s stated

reasons for termination whether the employer is religious or not. See Herx v. Diocese of Fort Wayne-

South Bend, Inc., 48 F. Supp.3d 1168, 1182 (N.D. Ind. 2014) (“The Diocese is understandably

concerned about the possibility of a judge or jury conducting its own secular analysis of Roman

Catholic doctrine[.] That shouldn’t happen.”). The same principle can be applied here. If a Court or

jury found that the Archdiocese’s actions unfavorably treated homosexual employees, as compared

to heterosexual employees who violated similar Church teachings on marriage, it would support a

claim that the interference was unjustified, or “fair and reasonable under the circumstances,” as that

element requires. Winkler v. V.G. Reed & Sons, 638 N.E.2d 1228, 1235 (Ind. 1994).

The Archdiocese relies on McEnroy v. St. Meinrad School of Theology, but the facts of that

case are readily distinguishable. 713 N.E.2d 334 (Ind. Ct. App. 1999). McEnroy involved “a professor

of Catholic theology” at a “Catholic Seminary which serves to train candidates for the priesthood and

other ministries of the Roman Catholic Church.” Id. at 335. The professor signed an open letter

publicly opposing the Pope’s teachings on the ordination of women as priests. Id. at 336. The

Archabbot retained the discretion to remove a seminary professor determined to be “seriously

deficient” under the Statement on Governance. Id.

Given that McEnroy involved (a) a theology professor involved in training priests, (b) who

engaged in public dissent of the Pope’s teachings, and (c) whose employment status was subject to

the Archabbot’s discretion, it is unsurprising that the Court found it could not adjudicate the

professor’s claims in that case. Id. at 337. By contrast, Payne-Elliott (a) taught world language and

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social studies to high school students, (b) was not a religion teacher, (c) did not publicly advocate

against Church teachings, and (d) did not sign any contract or handbook policy that subjected his

employment status to the discretion of the Archbishop. The Court will be able to apply neutral

principles of law without interfering with church governance in such a case.

Brazauskas is also distinguishable. That case involved a former Director of Religious

Education and Liturgy who alleged that, after she was terminated, the Diocese prevented her from

getting a job with another Catholic employer by informing it that she was suing the Diocese over that

termination decision. Brazauskas, 796 N.E.2d at 288. In contrast, Payne-Elliott was not directly

employed by the Archdiocese, did not sue the Archdiocese before he got fired, and had an existing

contractual and employment relationship with a third party, Cathedral, at the time of the

Archdiocese’s communications with Cathedral. Cathedral settled with Payne-Elliott within two and

a half weeks after terminating his employment. Furthermore, Payne-Elliott was a world language and

social studies teacher, rather than a “Director of Religious Education and Liturgy.” See Id. at 296

(Sullivan, J., dissenting) (“[C]ourts have not used the Free Exercise Clause to bar claims by non-

ministerial employees of a religious institution.”). As noted by Justice Sullivan in dissent, the Court

did not thoroughly analyze the church autonomy defense in Brazauskas to confirm its applicability to

the facts of that case. Id. at 295-296 (Sullivan, J., dissenting). For example, the Court did not

determine: (a) whether the dispute was religious in nature; (b) whether it could be resolved through

neutral principles of law; or (c) whether the Plaintiff’s prospective position “involved ministerial-type

duties.” Id. at 296 (Sullivan, J., dissenting). The Court should carefully examine whether Payne-

Elliott’s claim can be resolved through neutral principles, or whether he had ministerial job duties.

The Archdiocese also cites to Dwenger v. Geary, an Indiana Supreme Court case from 1888,

in which the Court said, “[n]o power save that of the church can rightfully declare who is a Catholic.”

13
113 Ind. 106, 115 (Ind. 1888). Aside from the vastly factual differences between Dwenger and Payne-

Elliott’s case (Dwenger involved a dispute involving burial rights at a church cemetery), Payne-Elliott

brings no challenge to the right to “declare who is a Catholic.” Payne-Elliott instead challenges the

Archdiocese’s directive to Cathedral (a non-Archdiocesan school) to terminate his employment. He

seeks no recognition by the Archdiocese as Catholic, and he makes no claim that Cathedral is or

should be recognized as Catholic by the Archdiocese. Instead, he seeks damages related to the loss of

his job due to the unlawful, unjustified actions of a third party who did not employ him. The First

Amendment does not give the Archdiocese absolute religious freedom to engage in conduct that

harms others, even if that conduct arises out of religious beliefs. See Cantwell v. Connecticut, 310

U.S. 296, 303-304 (1940) (distinguishing between the “freedom to believe” and the “freedom to act,”

and stating that the freedom to believe is “absolute,” but the freedom to act “cannot be.”).

In denying the Motion to Dismiss, the Trial Court correctly recognized that church

autonomy does not “preclude a Court from hearing all cases that involve churches,” but only “over

certain issues where the Court would be interfering with the highest authority within an

ecclesiastical body or church.” Order, p. 4. The Court therefore found that it could “avoid the

religious controversy by deferring to the highest authority within the ecclesiastical body.”

Order, p. 5 (emphasis in original) (internal citations omitted). The Court described Cathedral as an

“‘independent’ high school that has a relationship with the Archdiocese.” Id. at 4. This is different

from “Archdiocesan high schools such as Roncalli, Scecina, and Bishop Chatard.” Id. at 7. The

Court noted that it did “not know the exact relationship between Cathedral and the Archdiocese

because discovery has not yet been completed.” Id. 4 However, the Court said that there was “a

reasonable chance” that Cathedral is “not under the direct authority of the Archdiocese.” Id. at 7.

4
This is still true, because the Archdiocese and Cathedral have resisted Payne-Elliott’s attempts to engage in discovery
on this issue.

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If so, the Archdiocese would not be the “highest authority in the ecclesiastical body of Cathedral”

and church autonomy would not apply. Order, p. 8. The Court distinguished McEnroy, since there

was no question in that case that the Archabbot was the “highest authority within the ecclesiastical

body of St. Meinrad.” Id.

The Court found a fact question on whether the Archbishop was the highest ecclesiastical

authority, warranting discovery. So, the analysis halted at the first step. The next step in the

analysis would be to determine whether Payne-Elliott’s claims could be decided “without

resolving an ecclesiastical controversy.” Order, p. 5. The Court’s Order suggests that the

adjudication of this matter would not require the Court to decide a matter of religious doctrine.

Order, pp. 8-9. For example, the Court said that if “Payne-Elliott was terminated by Cathedral for

an economic benefit (i.e., Cathedral’s 501(c)(3) tax-exempt status) to Cathedral at the direction of

the Archdiocese, then that is a different matter than Catholic doctrine.” Order, p. 9. The Court

correctly recognized that this is a potential alternative reason for Payne-Elliott’s termination that

would not require it to decide any religious questions. 5 Even without considering this alternative

rationale, the Court may decide this case by applying neutral legal principles without deciding a

religious question. See, e.g., Herx, 48 F. Supp.3d at 1182; Cline v. Catholic Diocese of Toledo,

206 F.3d 651, 658 (6th Cir. 2000); Grimes, 132 N.E.3d 930.

The Archdiocese claims that the Trial Court’s “highest authority” theory contradicts Payne-

Elliott’s theory of the case, but that is not so. Payne-Elliott’s Complaint includes the statement,

5
Payne-Elliott agrees with the Archdiocese that Cathedral’s tax-exempt status was not actually in jeopardy. If it lost
its automatic tax-exemption, Cathedral could have applied for tax-exempt status on its own and would have had ample
time to do so before the loss took effect. But what matters is not whether this would have happened, but what Cathedral
believed would happen at the time it terminated Payne-Elliott. If Cathedral based its decision to terminate Payne-
Elliott on a sincere (but mistaken) belief that it would lose tax-exempt status, that is not a religious reason, and does
not implicate the church autonomy doctrine. Cathedral believed it to be true and identified it as a reason for terminating
Payne-Elliott in public communications to the “Cathedral Family.” See Ex. C to Complaint. It is also unknown at this
time (without discovery) what role the Archdiocese may have had in giving Cathedral the impression that it would
lose its tax-exempt status if it did not comply with the Archdiocese’s instruction to terminate Payne-Elliott.

15
“[t]he Archdiocese exercises significant control over Cathedral[.]” Complaint, ¶ 8. The phrase

“exercises significant control” is a term of art for recognizing joint employer liability for

employment discrimination claims under Title VII. See, e.g., Shah v. Littelfuse, Inc., No. 12-CV-

6845, 2013 U.S. Dist. LEXIS 61081, **8-9 (N.D. Ill. Apr. 29, 2013). Thus, this allegation was

included in anticipation of potentially adding Title VII claims. Complaint, p. 2, n.2. 6 The allegation

that the Archdiocese “exercises significant control” over Cathedral had nothing to do with Payne-

Elliott’s intentional interference claims. Payne-Elliott need not prove the exercise of significant

control under the elements of his state law claims. See Winkler, 638 N.E.2d at 1235 (describing

elements of intentional interference claims). Although Payne-Elliott understands that this has been

the source of some confusion, the allegation has nothing to do, and has never had anything to do,

with his theory of liability under the claims that he has pled in this case which arises under Indiana

state law only. Payne-Elliott’s theory of causation has never relied on the Archdiocese having

authority or control over Cathedral. Cathedral terminated Payne-Elliott due to the directive it

received from the Archdiocese. Compl., ¶¶ 17-18, 21. Causation exists regardless of whether the

Archdiocese had authority to issue such a directive to Cathedral.

The Archdiocese also argues that even if it was not the highest authority over Cathedral, it

was the highest authority “to which the matter had been carried.” Br. at 20. But this assumes that

Cathedral “carried” the matter of Payne-Elliott’s employment and same-sex marriage to the

Archdiocese. Plaintiff has been denied access to discovery on whether Cathedral regularly

“carries” employment or personnel matters to the Archdiocese. Plaintiff has been denied discovery

6
Payne-Elliott did not file Title VII claims (either in this case or in Federal Court), and the deadline has passed. Payne-
Elliott requests leave, if necessary, to amend his Complaint to remove the paragraph alleging the exercise of significant
control, since it is not relevant to the claims he is pursuing.

16
on whether the Archdiocese has actively intervened in a hiring or firing decisions involving

Cathedral employees other than Payne-Elliott.

The Archdiocese is not entitled to judgment or dismissal on the grounds of “church

autonomy,” and its motion should be denied.

B. Freedom of Expressive Association Erects No Bar to Payne-Elliott’s Claims.

The Archdiocese next argues that the Archdiocese’s right to engage in the freedom of

expressive association bars Payne-Elliott’s claims. This right is not absolute. Roberts v. United States

Jaycees, 468 U.S. 609, 623 (1984). “Infringements on that right may be justified by regulations

adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be

achieved through means significantly less restrictive of associational freedoms.” Id. The weighing of

these competing interests requires a factual record before it can be resolved on the merits, which is

why this defense is often decided on summary judgment, after discovery has occurred. See, e.g., Boy

Scouts of Am. v. Dale, 530 U.S. 640, 645 (2000); Eu v. San Francisco Democratic Cent. Comm., 489

U.S. 214, 220 (1989); Our Lady’s Inn v. City of St. Louis, 349 F. Supp. 3d 805, 809 (E.D. Mo. 2018).

Even if the defense applies (which Payne-Elliott disputes), discovery is necessary before this defense

can be fully evaluated, and the Archdiocese has improperly withheld discovery on this defense.

The Archdiocese cites cases for its freedom of association argument which involved a

government actor or public official who was a party to the case or involved a private suit to enforce a

state statute. See Br. at pp. 21-22.7 Although the Supreme Court has said that “the Free Speech Clause

of the First Amendment…can serve as a defense in state tort suits,” Snyder v. Phelps, 562 U.S. 443,

7
See, e.g., Roberts, 468 U.S. 609 (suit against public officials); City Chapel Evangelical Free Inc. v. City of South
Bend ex rel. Dep’t of Redevelopment, 744 N.E.2d 443 (Ind. 2001) (suit by municipality); Eu, 489 U.S. 214 (suit against
public officials); N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) (suit against state election board);
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) (suit against public officials); Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (suit under Massachusetts statutory law); Dale, 530 U.S.
640 (suit under New Jersey statutory law); Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006) (suit against
officials at a public university); Our Lady’s Inn, 349 F. Supp.3d 805 (suit against municipality).

17
451 (2011), it is rare for the right of expressive association to be invoked in a case solely involving

common law claims.8 Without a specific governmental action, law, or regulation to challenge (other

than the general common law), it is very difficult to apply the test from Roberts, which focuses on

“regulations”, and the state’s interests in adopting them, and alternative means of achieving those

interests. Payne-Elliott’s claims involve no governmental action, nor do they arise under statutory

law. Payne-Elliott’s claims arise under Indiana common law of torts and have been recognized as

common law torts for decades. See, e.g., Daly v. Nau, 167 Ind. App. 541, 549 n.6 (Ind. Ct. App. 1975)

(collecting cases). Additionally, while Payne-Elliott’s case is not technically an employment case, the

U.S. Supreme Court has rejected the freedom of expressive association defense in the employment

context. Hishon v. King & Spalding, 467 U.S. 69, 78 (“private discrimination may be characterized

as a form of exercising freedom of association protected by the First Amendment, but it has never

been afforded constitutional protections.”) (internal citation omitted).

The Archdiocese’s defense fails for another reason – Payne-Elliott did not seek to be a

member of the Archdiocese, and the litigation and enforcement of his claims against the Archdiocese

would not compel the Archdiocese “to accept members that it does not desire.” Dale, 530 U.S. at 648.

Payne-Elliott had an existing employment relationship and contract with a third party, Cathedral, to

work as a teacher at that school, which had existed, uninterrupted, for 13 years. He had a reasonable

expectation of continued employment (through annually renewable contracts including one executed

one month before his firing) without interference or intervention from others. The Archdiocese took

no action to disassociate from Payne-Elliott, because they were never associated in the first place.

8
The Archdiocese cites to NAACP v. Claiborne, as an example of such a case, but that case never uses the term
“expressive association.” 458 U.S. 886 (1982). It discusses “political association,” and whether all members of a
collective effort may be liable for the illegal actions of some (but not all) members of the group. Id. at 908, 931. That
is different from the Archdiocese’s argument in this case, which is based on a theory of forced inclusion of unwanted
members. Br. at 24.

18
These circumstances are very different from Dale, where the Plaintiff sought to retain his membership

in the Boy Scouts, and the parties had a direct relationship.

To get around this, the Archdiocese claims that it holds the freedom not to associate with

Cathedral, rather than Payne-Elliott. But Cathedral is “affiliated with The Brothers of Holy Cross,”

not the Archdiocese. Ex. C to Compl. Cathedral’s open letter of June 23, 2019, attached to the

Complaint, states the following regarding “Cathedral’s Catholic Identity”:

Cathedral was founded as a Catholic high school in 1918 by Bishop Joseph Chartrand. The
Archdiocese of Indianapolis owned Cathedral but engaged The Brothers of Holy Cross to
serve as faculty. Eventually, the archdiocese turned over care of Cathedral to the Holy
Cross brothers who ran it as a Catholic school for a number of years. In 1972 Cathedral
was incorporated for the sole purpose of maintaining and operating a Roman Catholic
secondary school. When Cathedral re-affiliated with The Brothers of Holy Cross, the Board
of Directors amended the bylaws to 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. (emphasis added). As the Trial Court stated in its denial of the Motion to Dismiss, “it will be

important for discovery to take place so that the Court can have a better understanding of the

underlying relationship between the entities.” Order, p. 14. That remains true. Both the Archdiocese

and Cathedral have withheld discovery from Payne-Elliott about their relationship and potential

association.

Even if the Archdiocese has an interest in “telling Cathedral what rules it needed to follow

in order to remain Catholic,” discovery is necessary to determine whether Cathedral actually

implemented the rules that the Archdiocese told it to follow, and, if not, whether there have been

any consequences for not doing so. The Archdiocese cannot use the freedom of association defense

to bar Payne-Elliott’s claims if it has applied its policies inconsistently. Our Lady’s Inn, 349 F.

Supp. 3d at 822 (“of course, a narrowly-tailored anti-discrimination provision sill might have

19
application to the Archdiocese if, for example, if it were to apply its policies. .to . its employees

unevenly”) (citing Cline, 206 F.3d at 658).

The Archdiocese compares itself favorably t0 a Christian student organization at a law

school, which denied membership in its organization to people who disagreed with its religious

Views on homosexuality. Christian Legal Soc ’y v. Walker, 349 F.3d at 862. In Walker, the Seventh

Circuit directed the entry of a preliminary injunction against the university, preventing it from

revoking the group’s registered student organization status. Id. at 867. Four years after Walker was

decided, the U.S. Supreme Court held, in Christian Legal Soc’y v. Martinez, that another public

university and law school did not Violate the First Amendment and denied the Christian Legal

Society’s application t0 be a registered student organization due to its exclusion 0f students who

did not share its beliefs on homosexuality. 561 U.S. 661, 668-669 (2010). Although Martinez did

not expressly overrule Walker, it seriously calls into question its Viability, given the almost

identical facts at issue. Even if Walker is still good law, the circumstances are not comparable. The

Archdiocese “comprises 126 parishes, 68 schools, six Catholic Charities agencies and many

offices of ministry across central and southern Indiana.” hflpzflwwwarchindyorg (last Visited

February 26, 2021). It is far from a small student organization whose message may be impeded

through an association with any single person.

Payne-Elliott’s prosecution of Indiana business tort claims has no impact on the

Archdiocese’s freedom of expressive association. The Archdiocese is not entitled to judgment on

the pleadings or dismissal.

C. Nobody Considered Payne-Elliott a Minister While He Worked for Cathedral.

The Archdiocese’s next argument hinges on the ministerial exception. The ministerial

exception arises out ofHosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Where the

20
U.S. Supreme Court held that the ministerial exception bars “an employment discrimination suit

brought on behalf of a minister, challenging the church’s decision to fire her.” 565 U.S. 171, 196

(2012) (emphasis added). The Supreme Court “express[ed] no view on whether the exception bars

other types of suits.” Id. The ministerial exception does not bar Payne-Elliott’s claims against the

Archdiocese for at least three reasons. First, the ministerial exception does not apply to state law

tort claims, or to claims that arise outside of an employer-employee relationship. Second, the

ministerial exception requires a fact-intensive inquiry, which requires full discovery before it can

be determined. Third, Payne-Elliott was not a minister.

First, the ministerial exception does not apply. Payne-Elliott brings no employment

discrimination claims and the Archdiocese was not his employer. Courts in other jurisdictions have

found the ministerial exception inapplicable under similar circumstances. See Kirby v. Lexington

Theol. Seminary, 426 S.W.3d 597, 621 (Ky. 2014) (holding that “Kirby’s status as a ministerial

employee does not…bar the claims in contract from proceeding.”); McRaney v. N. Am. Mission

Bd. of the S. Baptist Convention, Inc., 304 F. Supp.3d 514, 519-520 (N.D. Miss. 2018),

(“Accordingly…because McRaney was indisputably not employed by NAMB, this is not a claim

between employer and employee…and thus the ministerial exception does not apply to mandate

dismissal of any of McRaney’s claims.”).

Furthermore, the Archdiocese’s legal counsel has conceded in a separate case, currently

pending en banc before the Seventh Circuit Court of Appeals, that the ministerial exception does

not bar tort or contract claims arising out of state common law. See Demkovich v. St. Andrew the

Apostle Par., 973 F.3d 718 (7th Cir. 2020) (vacated and petition for rehearing en banc granted by

No. 19-2142, 2020 U.S. App. LEXIS 38613 (7th Cir. Dec. 9, 2020)). An en banc appeal is currently

pending before the Seventh Circuit Court of Appeals, which involves whether the ministerial

21
exception applies to hostile work environment claims under Title VII (which a majority of the

three-judge panel held that it did not). Id. The inapplicability 0f the ministerial exception to state

law contract and tort claims was not at issue, but conceded by all sides in the panel decision in

Demkovich. The Court noted that the Parish and Archdiocese “acknowledge[d] that the First

Amendment does not bar those same ministerial employees from bringing contract and tort claims

against their employers and supervisors,” and “that a religious employer can be held civilly liable

for a supervisor’s criminal or tortious conduct towards a ministerial employee.” Demkovich, 973

F.3d at 720, 73 1. The dissenting judge also agreed that “[t]he ministerial exception does not confer

general immunity from a minister’s tort claims[.]” Id. at 742 (Flaum, J., dissenting) (citing Tomic

v. Catholic Diocese ofPeoria, 442 F.3d 1036, 1040 (7th Cir. 2006)). Then, during en banc oral

argument, Defendants’ counsel agreed that the ministerial exception does not bar all claims arising

under tort law. Demkovich Oral Argument, 6: 13-8:08, Feb. 9, 2021 (available at

http://media.ca7.uscourts.gov/sound/external/ds. 1 9-2 1 42. 1 9-2 142 02 09 2021 .mp3) (last Visited

March 1, 2021). The Becket Fund for Religious Liberty, counsel 0f record here, represents the

Church in Demkovich.

Payne-Elliott filed no employment discrimination claims and had no employer-employee

relationship With the Archdiocese, s0 this defense does not apply. His state law tort claims survive

even if the Court finds, on a full record, that the ministerial exception applies.

Second, whether the ministerial defense applies should not be decided on a Rule 12 motion.

The ministerial exception “operates as an affirmative defense. .not a jurisdictional bar.”

. Hosanna-

Tabor, 565 U.S. at 195 n.4. It requires a “fact-intensive analysis, considering (1) ‘the formal title’

given by the Church, (2) ‘the substance reflected in that title,’ (3) the teacher’s ‘own use of that

title,’ and (4) ‘the important religious functions’ [he] performed for the Church.” Grussgott v.

22
Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th Cir. 2018). It is “usually…left for a

jury.” Id. at 657.

This Court should refrain from evaluating the ministerial exception or considering these

factors at the pleadings stage. See, Collette v. Archdiocese of Chicago, 200 F. Supp.3d 730, 733

(N.D. Ill. 2016) (“under settled Seventh Circuit precedent, the ministerial exception provides a

basis for the ‘unusual step’ of dismissing a discrimination claim under Rule 12(b)(6) ‘only where

the allegations of the complaint itself set forth everything necessary to satisfy the affirmative

defense.’”) (internal citations omitted). Plaintiff’s Complaint and description of his title and job

duties undermine any defense that he is a “minister”. Payne-Elliott was a world language and social

studies teacher at Cathedral. Cathedral employed Plaintiff, gave him a title, assigned him job

duties, and contracted with him. Thus, this defense should not be decided until the parties have

completed discovery on the relevant factors. This will require discovery directed to Cathedral in

addition to the Archdiocese. 9

The Supreme Court’s Our Lady of Guadalupe School v. Morrissey-Berru opinion changes

nothing. 140 S. Ct. 2049 (2020). Our Lady was decided on summary judgment. Id. at 2058-59.

Echoing Hosanna-Tabor, the Court took “all relevant circumstances into account to determine

whether each particular position implicated the fundamental purpose of the exception.” Id. at 2067.

The Court reiterated that there was no “rigid formula” for deciding the ministerial exception’s

applicability, and concluded, “it is sufficient to decide the case before us.” Id. at 2069. Our Lady

does not call into question the Trial Court’s ruling on the Archdiocese’s Motion to Dismiss, nor

did it alter the need for discovery before evaluating applicability of the exception.

9
Pursuant to this Court’s prior Orders, including Orders issued on June 15, 2020, and August 10, 2020, instructing
the Archdiocese and Cathedral to produce documents that they withheld from production to the Court for in camera
review. Payne-Elliott understands that the Court is currently in possession of sealed containers with the documents at
issue. Copies of those documents have been withheld from Payne-Elliott and his counsel.

23
 Third, Payne-Elliott’s case is clearly distinguishable from Our Lady on the facts. “What

matters, at bottom, is what an employee does.” Our Lady, 2049 S. Ct. at 2064. What Payne-Elliott

did was almost exclusively secular. Unlike the teachers in Our Lady of Guadalupe, Payne-Elliott

is a high school teacher, not an elementary school teacher. Elementary school teachers generally

teach the same class of students each and every day, for almost the entire day. The fifth-grade

teachers in Our Lady of Guadalupe taught religion in addition to their secular class subjects. Id. at

2056, 2058. The Supreme Court found the fact that both of the teachers taught religion to be very

significant. See id. at 2059 (“Like Morrissey-Berru, Biel instructed her students in the tenets of

Catholicism”); id. at 2066 (“As elementary school teachers responsible for providing instruction

in all subjects, including religion, they were members of the school staff who were entrusted most

directly with the responsibility of educating their students in the faith.”) (emphasis added); Id. at

2067 (“[T]hey were their students’ primary teachers of religion. The concept of a teacher of

religion is loaded with religious significance.”) (emphasis added).

Payne-Elliott, by contrast, lacks that defining “ministerial” characteristic: he had no

responsibility for teaching religion to his students. Payne-Elliott taught world language and social

studies. Compl., ¶ 7. High school teachers generally teach different classes of students, in different

periods of the day, and teach a limited number of subjects. In religious schools, aside from religion

teachers, high school teachers are not responsible for educating their students in the faith, nor are

they the primary teacher for the majority of their students. In denying the Motion to Dismiss, the

Trial Court correctly recognized that it could not determine “whether Payne-Elliott was a

minister…without additional discovery.” Order, p. 16.

The Archdiocese filed a Motion to Stay Discovery after filing its Motion for Judgment on

the Pleadings. The Archdiocese alternatively requested that, discovery be “limited to the question

24
of whether the ministerial exception applies.” Motion to Stay, p. 9.10 It would be unwise to

bifurcate discovery in such a manner, especially because the ministerial exception does not bar

any of Payne-Elliott’s claims in this case (regardless of whether Payne-Elliott was a “minister.”).

Nevertheless, the Archdiocese’s position tacitly acknowledges that the ministerial exception

cannot be decided without full discovery.

The Court should deny the motion for judgment on the pleadings on the grounds of the

ministerial exception.

D. Payne-Elliott Properly Pled Claims for Intentional Interference.

Claims for intentional interference with contract and intentional interference with

employment relationship have the same elements: “(i) existence of a valid and enforceable contract

[or employment relationship]; (ii) defendant’s knowledge of the existence of the contract [or

employment relationship; (iii) defendant’s intentional inducement of breach of the contract [or

interference with the employment relationship]; (iv) the absence of justification; and (v)

damages[.]” Winkler, 638 N.E.2d at 1235; see also Bochnowski v. Peoples Fed. Sav. & Loan Ass’n,

571 N.E.2d 282, 284 (Ind. 1991) (“The parties in an employment at will relationship have no less

of an interest in the integrity and security of their contract than do the parties in any other type of

contractual relationship.” Payne-Elliott pled all five of these elements in his Complaint. Compl.,

¶¶ 25-37. The Archdiocese focuses solely on the element of justification.

First, the Archdiocese suggests that absence of justification requires a showing that the

“breach must be malicious and exclusively directed to the injury and damage of another.” Morgan

Asset Holding Corp. v. CoBank, ACB, 736 N.E. 2d 1268, 1272 (Ind. Ct. App. 2000). This is not

10
During the Status Conference on February 1, 2021, the Court advised that it would consider the Motion for Judgment
on the Pleadings (and Payne-Elliott’s response) and not require briefing on the Motion to Stay. Therefore, Payne-
Elliott has not filed a response to the Motion to Stay. Payne-Elliott opposes a stay of discovery, and opposes limiting
discovery to the ministerial exception defense.

25
the correct legal standard. The Indiana Supreme Court’s binding, precedential decision in Winkler

considered seven factors to determine whether the conduct was justified, without any mention of

“malicious” conduct, let alone requiring that such an element be pled. 638 N.E. 2d at 1235. Those

factors are: “(a) the nature of the defendant’s conduct; (b) the defendant’s motive; (c) the interests

of the plaintiff with which the defendant’s conduct interferes; (d) the interests sought to be

advanced by the defendant; (e) the social interests in protecting the freedom of action of the

defendant and the contractual interests of the plaintiff; (f) the proximity or remoteness of the

defendant’s conduct to the interference; and (g) the relations between the parties.” Id.

Morgan’s “malicious” standard has been rejected or ignored in more recent Indiana Court

of Appeals decisions. For example, in Coca-Cola Co. v. Babyback’s Int’l, Inc., the Court stated:

Nowhere in its opinion did our supreme court discuss or even suggest that a malicious
standard…was the appropriate standard with which to analyze the absence of justification.
The supreme court’s analysis clearly dictates that the overriding question in determining
whether there is an absence of justification is whether the defendant’s conduct was fair and
reasonable under the circumstances.

806 N.E. 2d 37, 51 (Ind. Ct. App. 2004) (declining to follow Morgan and concluding that the court

is bound to follow the Supreme Court’s analysis in Winkler) (affirmed, 841 N.E. 2d 557 (Ind.

2006)); see also Allison v. Union Hosp., Inc., 883 N.E. 2d 113, 118 (Ind. Ct. App. 2008) (“Whether

Union harbored actual ill will towards the applicants is irrelevant for the purpose of determining

whether it committed this tort.”).

The Indiana Supreme Court has never endorsed the “malicious” standard. In Am.

Consulting, Inc. v. Hannum Wagle & Cline Eng’g, Inc., the Supreme Court acknowledged the split

in authorities without directly resolving it:

In this case, the parties disagree about how the absence of justification element must be
proven. The Defendants argue that in order to prove absence of justification, the defendant
must act intentionally and without a legitimate business purpose and that “the breach is
malicious and exclusively directed to the injury and damage of another.” Morgan Asset

26
 Holding Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1272 (Ind. Ct. App. 2000) (citation
omitted). ASI argues that the appropriate standard is whether the conduct at issue is fair
and reasonable and believes application of the Restatement factors is
appropriate. See Coca-Cola Co. v. Babyback’s Int’l, Inc., 806 N.E.2d 37, 49-52 (Ind. Ct.
App. 2004), vacated on other grounds by Coca-Cola v. Babyback’s Int’l, Inc., 841 N.E.2d
557, 560 (Ind. 2006) (outlining the five Restatement elements for tortious interference with
a business relationship). In the opinion below, our Court of Appeals acknowledged the
differing approaches and found that the Restatement factors have consistently been
applied to tortious interference cases. It found analyzing these factors would necessarily
include analysis of both whether defendant acted maliciously and without a legitimate
business purpose and whether defendant acted fairly and reasonably under the
circumstances.

We find that no matter which of the two standards for what constitutes the absence of
justification element for tortious interference with a contractual relationship is applied to
the facts of this case, there remains an issue of material fact so as to preclude summary
judgment. As our Court of Appeals majority aptly noted, there is both evidence that HWC
has a legitimate business purpose in recruiting ASI employees and also evidence that HWC
targeted ASI for an improper purpose. In light of this conflicting evidence and because of
our summary judgment standard, we find the trial court properly denied summary judgment
on ASI’s claims of tortious interference.

136 N.E.3d 208, 215 (Ind. 2019).

The Archdiocese claims that the “weight of recent authority” favors requiring malice, but

entirely ignores that this authority stems from a flawed source. The Court of Appeals’ use of the

“malicious” language is traced back to the Indiana Court of Appeals’ panel decision in Winkler.

619 N.E.2d 597, 598 (Ind. Ct. App. 1993). But this conflicts with the Indiana Supreme Court’s

subsequent decision in the very same case, which said, “the weight to be given each consideration

may differ from case to case depending on the factual circumstances, but the overriding question

is whether the defendants’ conduct has been fair and reasonable under the circumstances.” Winkler,

638 N.E.2d at 1235. If malice were required, as the Court of Appeals had posited, the Supreme

Court would have almost certainly stated so. Further, if any particular factors were to be given

more weight than others (such as the nature of conduct or motive of the defendant), the Supreme

Court would not have said that the weight of each factor would “differ from case to case.” Id.

27
 Even if malice were required (which it is not), a fair reading of Payne-Elliott’s Complaint

illustrates that Archdiocese acted maliciously and exclusively directed to the injury and damage

of Payne-Elliott and his spouse. Payne-Elliott alleges that the Archdiocese specifically targeted

him and his spouse for termination by Cathedral and Brebeuf Jesuit. Compl., ¶¶ 17-18, 23-24; Ex.

C to Compl. Cathedral’s letter to the “Cathedral Family” said, “Archbishop Thompson made it

clear that Cathedral’s continued employment of a teacher in a public, same-sex marriage would

result in our forfeiting of our Catholic identity due to our employment of an individual living in

contradiction to Catholic teaching on marriage.” Ex. C to Compl. (emphasis added). It concluded

that it needed to “separate from the teacher.” Id. (emphasis added). Although Cathedral did not

mention Payne-Elliott by name, the context is clear that the directive was about preventing a

specific individual from teaching, rather than implementation of a more general policy. If

Cathedral has not taken any other action against any other teacher, this would undermine any

argument that the Archdiocese gave it a general directive to require teachers to abide by Catholic

Church teachings in their private lives, as opposed to a directive targeted specifically at terminating

Payne-Elliott due to his same-sex marriage. If true (discovery has not occurred yet), this would

be more than adequate for Payne-Elliott to prevail.

Second, the Archdiocese claims that the Complaint omits allegations of lack of justification

even if no malice is required. But that is not the case. As explained above, if the Archdiocese has

targeted individuals in same-sex marriages, while ignoring other opposite-sex relationships that

Catholic doctrine considers to be invalid (such as such as divorce and re-marriage without

annulment, unmarried co-habitation, and/or marriage without the sacrament) that would support a

determination that the Archdiocese’s actions were not fair and reasonable under the circumstances.

28
 In any event, these claims cannot and should not be decided on the pleadings. Application

of the seven factors from Winkler to determine whether a defendant’s conduct is justified often

involves a “highly fact sensitive inquiry” not easily resolved through dispositive motions. Guinn

v. Applied Composites Eng’g, Inc., 994 N.E.2d 1256, 1275 (Ind. Ct. App. 2013) (denying summary

judgment). Analysis of these facts would be premature now, before complete discovery. 11 As the

Trial Court stated when denying the Motion to Dismiss, “the Court must view the Complaint in

light most favorably to Payne-Elliott with every reasonable inference construed in [his] favor.”

Order, p. 13. Payne-Elliott has plead sufficient facts to meet the low standard of stating a claim.

The Archdiocese’s motion should be denied on this basis. In the alternative, Payne-Elliott should

be permitted to amend and re-plead, if necessary. See Davis, 747 N.E.2d at 1151.

V. CONCLUSION

For the above reasons, the Archdiocese’s Motion for Judgment on the Pleadings should be

denied, in its entirety. In the alternative, Payne-Elliott should be granted leave to amend his complaint,

consistent with Davis, 747 N.E.2d at 1151.

Respectfully submitted,

/s/ Kathleen A. DeLaney________

Kathleen A. DeLaney (#18604-49)
Christopher S. Stake (#27356-53)
DELANEY & DELANEY LLC
3646 N. Washington Blvd.
Indianapolis, IN 46205
Attorneys for Joshua Payne-Elliott

Again, Payne-Elliott awaits a ruling from this Court on the in camera document productions of the Archdiocese and
11

Cathedral.

29
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed and served by this court’s electronic
filing system this 1st day of March, 2021, to the following counsel:

John S. (Jay) Mercer Luke W. Goodrich

Wooten Hoy, LLC Christopher Pagliarella
13 North State Street, #2A Daniel H. Blomberg
Greenfield, IN 46140 The Becket Fund for Religious Liberty
1200 New Hampshire Avenue, NW, Suite 700
Washington, DC 20036

Thomas E. Wheeler Josh J. Minkler

Stephanie V. McGowan United States Attorney
Frost Brown Todd LLC United States Attorney’s Office for the
201 N. Illinois Street, Suite 1900 Southern District of Indiana
Indianapolis, IN 46244 10 W. Market St., Suite 2100
Indianapolis, IN 46204
Thomas M. Fisher
Kian J. Hudson
Julia C. Payne
Office of the Indiana Attorney
General
302 West Washington Street
IGC South, Fifth Floor
Indianapolis, IN 46204

/s/ Kathleen A. DeLaney

Kathleen A. DeLaney

DELANEY & DELANEY LLC

3646 N. Washington Blvd.
Indianapolis, IN 46205

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