I first met Beverly Brazauskas in the late 1980s, when she was the Assistant Director of Religious Education at the Diocese of Fort Wayne-South Bend, Indiana. South Bend is where the University of Notre Dame is located. I was then teaching ethics in the Theology Department at my alma mater, Notre Dame.
Bev was hired to her job in 1986 by Father Bill Simmons. After I left theology to go to law school, she was fired from her job by her new employer, Father Jose Martelli, in August 1992. She sued for breach of contract, among other claims.
She lost her case against her employer because, like many cases, it fell victim to the courts’ strict rules allowing religions’ conduct to be free from court interference. Before I went to law school, I thought religious organizations had to obey their own contracts and follow the law, and could be sued for contract violation and other illegal actions. Brazauskas’s case, and many others since then, have taught me that religions are often free from the law’s requirements.
Her Reaction, Years Later
I recently asked Bev—18 years after the Indiana Supreme Court decided her case and the Supreme Court denied review—what she thought about the decision. Her comments reflect how many of these cases work.
First, she told me that her aunt had always warned her, “You can’t win when you go up against the church.” And, it is true, she did not win against the church.
Second, she said, “I feel that it was unfair, not justly settled, but now it can be used in other cases to discriminate against other people.” Or, as she put it in other words, “The hardest thing is knowing it can be used against other people; bad enough it was unfair to me, and if it ended there it would be okay, but someone else can say look at this case, and use it against another victim. That will still hurt me.” She said thinking about the case as a precedent “was the first thing that came to her mind when the decision came down.”
Third, she eventually forgave Father Martelli and sent him a letter in 2019 telling him so before he died a few months later. She never heard back from him. She explained to me the values of forgiveness. She forgave because for her own sake she had to let go of the case, and stop holding any grudge against him. It gave more peace to her life to forgive him. And, despite the priest’s misconduct, she is still an active member of the church. Her relatives, not as much.
You Can’t Win Against the Church
It is often true that one cannot win against the church. Plenty of sexual abuse victims have had their cases dismissed and ignored. The courts say they will not resolve religious questions. They expand this to conclude that any employment case brought by a minister will be dismissed on an affirmative defense, with the bad facts never revealed in a trial. Recently the Supreme Court ruled that two lay Catholic teachers were ministers, even though the Ninth Circuit had called them teachers and the church itself does not recognize them as ministers…until they get into court. Ironically, the bishop in Bev’s case told the court that she was “like a priest,” a way to get the court thinking it should not hear her case.
Contract
Brazauskas’ original case was against the Diocese and Father Martelli for breach of contract, breach of the covenant of good faith and fair dealing, wrongful discharge, fraud, defamation, promissory estoppel, and infliction of emotional distress.
She started her job on a one-year contract in 1986, which was signed by Father William Simmons. That contract was then replaced by a three-year contract in 1987, which was also signed by Father Simmons. She was on her third contract, signed in 1990, at the time of her firing. The contract said it would automatically be renewed unless the employer had good cause to fire her. Martelli arrived in June 1992, while she was on her third contract.
Bev told me that when Martelli first arrived, he was feeding Notre Dame students upstairs in his room at night. On the ground floor, however, were the kitchen, Bev’s office, a meeting room, and lavatories. Brazauskas remembers this situation occurred a year after Fr. James Burtchaell, Notre Dame provost and professor of theology, had resigned from the university in 1991 over claims of his sexual misconduct with male students. Burtchaell was stripped of his priestly capacities, and could not say Mass or perform other priestly duties after he left the university.
Everyone at Notre Dame was talking about that.
Brazauskas told Martelli that in such circumstances it was not really prudent to meet the students in his room. He told her he was feeding starving ND students and ignored her advice to feed them in the meeting room instead of three flights upstairs. She gave him other advice about the building that he did not want to follow.
Brazauskas went away on vacation, and returned in August 1992. Martelli asked her to attend a meeting with him and the council president. At that meeting, he gave her a choice to quit or be fired. Her good lawyers, of course, told her not to quit. She was fired. But when she went into her parish office, her third contract was missing. She had both the first and second contracts at home. But while she was away, her office was cleaned out, and there was no copy of the third contract available.
That is why she lost the contract and related claims at trial. She did not have a copy of the contract, so the Court of Appeals concluded that the contract and related claims must be dismissed.
Defamation
I was especially interested in the defamation case, because I remembered some defamatory statements. Martelli told people that Brazauskas “cannot be trusted with seven-year-old children,” that she was “incapable of Christian ministry,” and had a “vindictive heart.” I have done a lot of legal work against child abusers, and find the children comment very injurious to Brazauskas’s reputation. Bev remembers that Martelli said in a deposition he did not understand what he was saying in the “seven-year-old children” comment, the one most hurtful to her. Her lawyer said slowly, “she cannot be trusted with seven-year-old children,” and asked Martelli what he did not understand in that sentence. Martelli, who grew up in Italy and spent most of his life in South America, said he did not understand the full meaning of the word trust. Brazauskas is still amazed by that comment today.
The appeals court did not talk much about the content of the defamatory statement. It concluded that to resolve whether the statements were defamatory, the court would have to review church doctrine, which it was not allowed to do under the First Amendment.
Brazauskas said that the “seven-year-old children” comment was the one that hurt her most and that she still remembers.
Torts
Things looked to be improving for a while. Father Gene Lauer asked Brazauskas to apply for a one-year fellowship program at Notre Dame, as the Acting Director of Notre Dame’s Program for Church Leaders (PCL). She and three other candidates were reviewed. She received a score of 10 from all her reviewers, while the other candidates received at least one zero. She was recommended as the only candidate for the job. But the president of Notre Dame, Monk Malloy, closed down the program so she could not get the job.
Her lawsuit alleged that the diocese and bishop had blacklisted her and tortiously interfered with her employment by telling Malloy about the lawsuit against Martelli and the diocese. The Indiana Supreme Court dismissed the lawsuit in a straight Free Exercise ruling. The Indiana Supreme Court concluded that the church autonomy aspect of the Free Exercise Clause allowed Notre Dame to keep its relationship with the bishop in good shape, as Ex Corde Ecclesiae, an important church document, suggested. Of course Notre Dame would not hire someone who was involved in a lawsuit against the bishop, it thought.
Bev does remember that Bishop John D’Arcy had to pay $400 to her for lying under oath. He did not pay it directly. Instead he paid her law firm and then they sent the money to her. There are minor victories in major losses.
The Precedent
Lawyers always learn about precedents and use decided cases as precedents for the future. It is a key part of law school, something I learned as a student and teach as a law professor. Sometimes, however, we forget the client’s side of precedent. Losing precedents are difficult for the people who were involved with them.
Brazauskas still remembers the negative side of giving a precedent to people who were suing religious institutions.
Nonetheless, she thinks her lawyers did a good job. She started with Edward N. Kalamaros, a local lawyer who was getting older. Kalamaros found Stephen M. Terrell, who remains a distinguished Indiana lawyer. He retired in 2019.
As a constitutional law professor, I asked Brazauskas what she thought about Terrell’s appealing the Indiana decision to the Supreme Court. She said “you gotta be kidding me,” but “he was adamant.” Terrell said they “used Catholic documents, which is against the rules, everything they did is against the rules; we gotta get some place that does not accept this.” Her friends, including chairman of the Notre Dame theology department Richard McBrien, told her to go ahead with the appeal. But she thinks she might have pulled out earlier except for their support for the petition for review by the U.S. Supreme Court.
As I have written numerous times, the U.S. Supreme Court did not take a case like this until 2012, when it heard its first ministerial exception case, Hosanna-Tabor. From the Court that denied cert. in Brazauskas to the one that granted cert. in Hosanna, Chief Justice Rehnquist and Justices Stevens, O’Connor, and Souter were replaced by Chief Justice Roberts and Justices Kagan, Alito, and Sotomayor.
Forgiveness
I asked Brazauskas her long-term reaction to the case. She said she got more and more depressed after it was over, but Notre Dame President Theodore Hesburgh and Theology Professors Richard McBrien and Fritz Pfotenhauer helped keep her strong in the years after the opinion. Pfotenhauer, a Lutheran minister who died in June 2021, was her spiritual director for 11 years. During those years, she left Catholic worship and went to his church. When Pfotenhauer retired he brought her back to the Catholic Church, St. Mary’s. Today she worships in the Catholic Church in Connecticut.
Brazauskas said if she saw her case being used against someone else she would have a very negative reaction.
She says she tries to put the case behind her but that is hard because almost everyone in her family—siblings and nieces and nephews—left the church because of this incident. Her nieces and nephews had seen her working in the church pre-firing, and asked, “Don’t they realize the time and love you put into a job working for the church?” Courts do not always see this side of their decisions, what they do to employees whose cases are dismissed.
Her family does not always understand how Bev can still be part of the church, but she says her case then has nothing to do with what she is doing now.
She is doing well. But I think things would be much better if the courts had reviewed her case instead of dismissing it to “protect” religious freedom.
