FORT WAYNE – The federal discrimination case involving a teacher in the local Roman Catholic schools who used in vitro fertilization treatments was sidetracked Thursday before the actual case even started.

The Catholic Diocese of Fort Wayne-South Bend asked U.S. District Magistrate Judge Roger Cosbey to allow it to wait to provide information sought by the former teacher, Emily Herx, until the court decides whether the case can legally proceed.

Herx sued the diocese in April, claiming she was discriminated against for a disability when her teaching contract was not renewed. Herx, who suffers from infertility, a protected disability under the Americans with Disabilities Act, underwent in vitro fertilization. She argues her termination was a violation of both the Civil Rights Act of 1964, as well as the Americans with Disabilities Act.

The treatment is banned under Roman Catholic doctrine, and when news of Herx’s treatment came to light, diocesan officials decided not to renew her contract.

A letter written by Bishop Kevin Rhoades last summer called the procedure an “intrinsic evil, which means that no circumstances can justify it,” according to court documents.

Diocesan attorneys want the court to dismiss Herx’s complaint because the diocese is a religious employer that acted in a manner consistent with its belief when it decided not to renew Herx’s contract.

Should the court allow the case to proceed, the attorneys argued, it would lead to “government entanglement” in matters of Catholic Church doctrine, teaching and governance, according to court documents.

The Civil Rights Act and Americans with Disabilities Act make exceptions for compliance in certain areas to religious institutions, diocesan attorneys argued in court documents.

And even if Herx’s interpretation of the behavior as discriminatory was correct, application of the laws would then be a violation of the church’s constitutional right to practice its religion freely, diocesan attorneys argue.

During a hearing Thursday, diocesan attorney Scott Hall said it would be irrelevant to provide the plaintiff with additional information, called “discovery,” if the court decides it cannot intervene in the matter.

Additional information would not change the constitutional issues raised by the diocese in its defense, Hall argued.

Herx’s Indianapolis attorney, Kathleen DeLaney, said the issue is not one of church teaching, but rather employment discrimination based on a disability.

Further information is needed to determine if there were other instances where people with disabilities or who acted in a way inconsistent with church teaching were treated differently than Herx.

“We can’t do this at 30,000 feet altitude and say the ADA doesn’t apply to the church,” DeLaney argued.

The issue, DeLaney said, is whether Herx was discriminated against in this particular situation.

“We’re not challenging the doctrine,” she continued. “We’re saying they can’t apply the doctrine in a discriminatory way.”

However, Cosbey ruled the diocese does not need to proceed with the process of providing more information right now and instead asked both sides to provide their views on whether the case should be dismissed.

“It could come down to whether courts can question the bishop regarding the application of church laws,” he said.

rgreen@jg.net