The Midwest Jesuits plan to appeal a decree by Archbishop Charles Thompson of Indianapolis that Brebeuf Jesuit High School is no longer recognized as a Catholic school after the school’s administrators refused to terminate a teacher in a same-sex marriage as requested by the archdiocese. In a statement released on June 20, Father Brian Paulson, provincial of the Midwest Province of Jesuits, said the order “will appeal this decision through the formal appeal process established in church law: first, pursuing local recourse to the archbishop, and, if necessary, hierarchical recourse to the Vatican.”

According to the archbishop’s decree, Brebeuf Jesuit High School “can no longer use the name Catholic and will no longer be identified or recognized as a Catholic institution by the Archdiocese of Indianapolis.”

The canonical appeal process, which starts at the diocesan level and can then proceed to the Vatican if not resolved locally, will unfold over the next month or more, and is likely to involve several complicated issues concerning both the relationship between religious orders and diocesan bishops and also a bishop’s responsibility for oversight of Catholic education within his diocese.

Kurt Martens, a canon law professor at the Catholic University of America, says the bishop does have the canonical right to take away the title “Catholic” from a school in his territory but this case is murky.

Canon law stipulates three ways in which a school can be understood as Catholic: if it is “under the control of the competent ecclesiastical authority or of a public ecclesiastical juridical person, or one which in a written document is acknowledged as Catholic by the ecclesiastical authority.”

“[Brebeuf] is a Catholic school which is being directed by a public juridical person, which is the Jesuits,” explained Dr. Martens. “If it is a diocesan school, then it is clear that the bishop would have control. But when you get to the level of religious, what is the control that a bishop still has?” That is not clear, says Dr. Martens.

In an interview with America, Father Paulson said, “I acknowledge that the archbishop definitely has the right to decide what ministries/apostolates in the archdiocese can call themselves Catholic.” He says that where the province and Brebeuf differ with the archdiocese is on what degree of autonomy in personnel decisions is appropriate for a school operated by a religious order, in accordance with a religious order’s right, also recognized in canon law, to direct its own apostolates.

According to canon 806, the bishop has the right to “watch over” and “inspect” Catholic schools in his territory, even those directed by religious orders. However, “they retain their autonomy in the internal management of their schools,” the canon continues.

Father Paulson said that “Brebeuf and the Midwest Province believe that the archbishop’s request that the school not renew the teacher’s contract is neither a prudent nor necessary exercise of his responsibility to oversee ‘faith and morals’ as well as Catholic education within the archdiocese.”

Canon law recognizes a bishop’s right to “appoint or to approve teachers of religion and, if religious or moral considerations require it, the right to remove them or to demand that they be removed.” It also notes that the bishop is “to be careful that those who are appointed as teachers of religion in schools, even non-Catholic ones, are outstanding in true doctrine, in the witness of the Christian life and in their teaching ability.”

The archdiocese said in their statement, “The Archdiocese of Indianapolis recognizes all teachers, guidance counselors and administrators as ministers.” Father Verbryke said in a live video interview with America that while Brebeuf would apply such a standard for “the president, the principal, campus ministers [and] religion teachers,” they would not use it as the “yardstick” for other teachers, and it is “because this particular teacher is not a religion teacher or campus minster that we felt that we could not in conscience dismiss him from employment.”

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Father Paulson says that the archbishop wants all Catholic schools in Indianapolis to include language in their contracts and handbooks defining every teacher as a minister. His understanding is that this approach is meant to guarantee that schools “have the right in civil law not to hire and to fire/not renew employees whose lives do not conform to Catholic doctrine.” By recognizing all employees as ministers, Father Paulson said a school would be able to invoke “the ‘ministerial exemption’ in civil law in regards to discrimination.”

“Brebeuf chooses not to take this approach,” said Father Paulson.

While looking for all employees to be supportive of the Catholic mission of Brebeuf, Father Paulson explained that the school would take “more of an ‘all things considered’ determination of the faith, morals, character, talent and ability to contribute to the mission of the school” when determining whether to retain employees. Thus, while recognizing that “this teacher’s marriage is not in conformity with church doctrine,” Father Paulson said that Brebeuf believes “the teacher makes a valuable contribution to the mission of the school.”

Dr. Martens says that the Jesuits have 10 days to appeal the decree once it is issued. (The decree was issued on June 21.) “They will have to ask the bishop to reconsider and the bishop has 30 days to respond.”

In those 30 days, the archbishop’s decree is not automatically suspended, and the school will continue to be under its limitations. However, canon law stipulates that the Jesuits have the right to ask for a suspension of the decree while the recourse is in progress and the archbishop can either grant a suspension or not. If the archbishop declines the request for suspension, the Jesuits can also appeal that decision to a higher authority.

If, after 30 days, the archbishop declines the appeal altogether, the Jesuits can take the case to the Vatican, Dr. Martens explained. Father Paulson indicated that the province would appeal the case to the Congregation for Catholic Education if necessary.

This article appears in July 22 2019.

William Critchley-Menor, S.J., is a Jesuit studying at Boston College Clough School of Theology and Ministry. You can find his writing on his Substack, From Every Side.