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Brazauskas v. Fort Wayne-South Bend Diocese, Inc.

Court: Indiana Supreme Court
Date filed: 2003-09-25
Citations: 796 N.E.2d 286
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Attorneys for Appellant                            Attorneys for Appellee
Stephen M. Terrell                                 William T. Hopkins, Jr.
Landman & Beatty                             Michael A. Scheer
Indianapolis, Indiana                              Barnes & Thornburg
                                             Fort Wayne, Indiana
Edward N. Kalamaros & Associates
South Bend, Indiana
__________________________________________________________________________

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 71S03-0205-CV-268


Beverly M. Brazauskas,
                                             Appellant (Plaintiff below),

                                     v.

Fort Wayne-South Bend Diocese, Inc.,
Sacred Heart Parish, and Jose Martelli,

                                             Appellees (Defendants below).

                      _________________________________

     Appeal from the St. Joseph Superior Court, No. 71D07-9302-CP-10017
                    The Honorable Michael D. Cook, Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0102-
                                    CV-55
                      _________________________________

                             September 25, 2003



Shepard, Chief Justice.






     Appellant Beverly Brazauskas sued Father Jose Martelli  and  the  Fort
Wayne-South  Bend   Catholic   Diocese   for   blacklisting   and   tortious
interference with a business relationship.  She  claims  that  after  Father
Martelli terminated her employment at Sacred Heart  Church,  he  and  Bishop
John D’Arcy of the Diocese prevented her from obtaining a  position  at  the
University of  Notre  Dame  by  truthfully  informing  University  President
Father Edward Malloy that Brazauskas was suing them  over  this  termination
decision.


     We conclude that even if this scenario occurred as she describes,  her
suit fails under the First Amendment’s Free Exercise Clause.



                        Facts and Procedural History



     Sacred Heart Parish, a part of the Diocese, is located on  the  campus
of the University of Notre Dame near South Bend.   In  August  1992,  Parish
pastor Father Martelli dismissed Brazauskas from her  position  as  Director
of Religious Education and Liturgy at Sacred Heart Church.


     Brazauskas sued the Diocese (which includes  the  Parish)  and  Father
Martelli on a variety of grounds, including breach of  contract,  breach  of
the covenant of good faith and  fair  dealing,  wrongful  discharge,  fraud,
defamation, promissory  estoppel,  and  infliction  of  emotional  distress.
All these claims were eventually dismissed in various proceedings.


     While her employment lawsuit was pending,  Brazauskas  applied  for  a
position as Acting Director of  Notre  Dame’s  Program  for  Church  Leaders
(PCL), a sabbatical program.  In June 1993, a search  committee  recommended
her for the job.


     Father Malloy rejected the recommendation, believing that  Notre  Dame
“should not hire someone who has an active lawsuit against the local  bishop
until that matter [is] resolved.” (Id. at 422.)  He explained,  “I  consider
a  [C]atholic  university  to  desirably  have  a  positive  and  respectful
relationship  to  the  [C]atholic  church  community,  including  the  local
bishop,” and hiring someone who had a pending lawsuit “would  be  a  gesture
of ill will until such a matter was resolved by the courts.”  (Id. at  423.)
[1]


     This view is consistent with Ex Corde Ecclesiae, a 1990  directive  of
Pope John Paul II based on Roman  Catholic  canon  law  that  addresses  the
relationship between Catholic universities and local diocesan  bishops.   Ex
Corde  Ecclesiae  encourages  “close  personal  and  pastoral  relationships
between university and Church authorities  characterized  by  mutual  trust,
close and consistent cooperation  and  continuing  dialogue.”   (Appellant’s
App. at 1013.)


     After she failed to receive the PCL position, Brazauskas added  claims
for blacklisting and tortious interference with a business  relationship  to
her lawsuit against Father Martelli and the Diocese.  See Ind. Code Ann.  §§
22-5-3-1, 2 (West 1991). [2]   Brazauskas did not challenge Father  Malloy’s
or Notre Dame’s legal right to deny her the  PCL  position  for  the  reason
Father Malloy gave.


     In February 2001, the trial court dismissed both of these  claims  for
lack of  subject  matter  jurisdiction.   The  Court  of  Appeals  affirmed.
Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 755 N.E.2d 201 (Ind.  Ct.
App. 2001).  We granted transfer, and now affirm, concluding that the  trial
court had jurisdiction over the matter but that the Diocese defendants  were
entitled to judgment on the merits.



                          I. The Procedural Posture



     As a preliminary matter, we  address  the  appropriate  procedure  for
seeking dismissal of a suit by asserting a Free Exercise Clause defense.


     In 1997, the trial court denied the  Diocese  defendants’  motion  for
summary judgment on the tortious interference and blacklisting  claims.   On
appeal of this ruling, the Court  of  Appeals  noted  sua  sponte  that  the
Diocese defendants should have challenged subject  matter  jurisdiction  via
motions to dismiss for lack of subject  matter  jurisdiction  under  Indiana
Trial  Rule  12(B)(1)  rather  than  via  summary  judgment  motions.    See
Brazauskas v. Fort Wayne-South Bend  Diocese,  Inc.,  714  N.E.2d  253,  259
(Ind. Ct. App. 1999).   Following  that  guidance,  the  Diocese  defendants
accordingly argue that the trial court lacked  subject  matter  jurisdiction
over the tortious interference and blacklisting claims under Rule  12(B)(1).



     Other courts have resolved this procedural question  differently.   In
Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir. 2002), the Tenth  Circuit
dealt with an analogous claim brought by two church members claiming  sexual
harassment in  the  form  of  remarks  made  during  parish  meetings  about
homosexuals and the two members’  homosexual  activities.   Id.  at  651-53.
The  church  responded  that  the  remarks  were  part   of   ecclesiastical
discussions on church policy, so the claims were barred.  Id. at 651.


     Applying rules of federal procedure, the  Tenth  Circuit  treated  the
church’s challenge as a Rule 12(B)(6)  motion  to  dismiss  for  failure  to
state a sufficient claim.  Id. at 654.   It found no abuse of discretion  by
the trial court  in  considering  evidence  beyond  the  pleadings,  thereby
converting the motion  to  dismiss  into  a  summary  judgment  motion,  and
affirmed judgment for the church.  Id. at 654, 660.  See  also  McKelvey  v.
Pierce, 800 A.2d 840, 844 (N.J. 2002) (applying  state  rules  of  procedure
and treating contract and tort suit by former  seminarian  claiming  damages
stemming from unwanted homosexual advances as motion  for  judgment  on  the
pleadings that effectively became a summary judgment motion).


     We agree with the approach taken by these two courts,  and  hold  that
the trial court erred in concluding that it lacked  jurisdiction  over  this
matter.  A court with general authority  to  hear  matters  like  employment
disputes is not ousted of subject matter or  personal  jurisdiction  because
the defendant pleads a religious defense.  Rather, pleading  an  affirmative
defense like the Free Exercise Clause may  under  certain  facts  entitle  a
party to summary judgment.


     We will proceed with our  review  using  the  standard  applicable  to
summary judgment, as the trial  court  did  not  exclude  matters  submitted
outside the pleadings.  See Ind. Trial R.  12(B),  56.   We  will  therefore
consider whether there is any genuine issue of  material  fact  and  whether
the Diocese defendants as the moving parties are entitled to judgment  as  a
matter of law.  T.R. 56.  In doing so, we construe all facts and  reasonable
inferences in the light  most  favorable  to  Brazauskas  as  the  nonmoving
party.  See State Farm Fire & Cas.  Co.  v.  T.B.,  762  N.E.2d  1227  (Ind.
2002).





               II.  The Changed Landscape of Blacklisting Law



     Had these events occurred two years later, our  disposition  would  be
quite simple.  In 1993, Indiana’s blacklisting statute read about  the  same
as it had upon initial enactment in 1889, namely:
     A person who, after having discharged any employee from  his  service,
     prevents the discharged employee from obtaining  employment  with  any
     other person commits a Class C infraction,  and  is  liable  in  penal
     damages to the discharged employee, to be recovered by a civil action;
     but this section  does  not  prohibit  a  person  from  informing,  in
     writing, any other person to whom the discharged employee has  applied
     for employment, a truthful statement of the reasons for discharge.


     If any  railway  company  or  any  other  company  or  partnership  or
     corporation in this state shall authorize, allow or permit any of  its
     or their agents to black-list any discharged employees, or attempt  by
     words or writing,  or  any  other  means  whatever,  to  prevent  such
     discharged employee, or any employee who  may  have  voluntarily  left
     said company’s service,  from  obtaining  employment  with  any  other
     person, or company, said company shall be liable to such  employee  in
     such sum as will fully compensate him, to which may be added exemplary
     damages.

Ind. Code Ann. §§ 22-5-3-1, 2 (West 1991).


     In 1995, however, the General Assembly added an important exception:
     An employer that discloses  information  about  a  current  or  former
     employee is immune from civil liability for  the  disclosure  and  the
     consequences proximately caused by the disclosure, unless it is proven
     by a preponderance of the evidence that the information disclosed  was
     known to be false at the time the disclosure was made.


Ind. Code Ann. § 22-5-3-1(b) (West 2002).


     Brazauskas does not claim that any of the alleged disclosures that led
to her denial of the PCL position were false.  She would therefore  have  no
claim for blacklisting under the revised statute.


     She would likewise not have a claim for tortious interference, because
in Indiana this tort requires some independent illegal action.   See,  e.g.,
Watson Rural Water Co., Inc. v. Ind. Cities  Water  Corp.,  540  N.E.2d  131
(Ind. Ct. App. 1989).  Brazauskas’ only other allegation of illegal  conduct
is the blacklisting claim (Appellant’s Br. at 18) so both  would  fail  with
no need to reach the Diocese defendants’ constitutional argument.





                          III.  The Factual Premise



     Notwithstanding subsequent  legislative  action,  we  must  apply  the
statute as it existed in  1993.   Brazauskas’  complaint  alleges  that  the
Bishop and Father Martelli prevented her from obtaining employment at  Notre
Dame.[3]  She bases her claim primarily on a letter  Father  Martelli  wrote
more than six months before she applied for the PCL  job  and  on  influence
allegedly exerted  by  the  Bishop  that  prompted  Father  Malloy  to  deny
Brazauskas the position.


     Father Martelli’s writing was a response to two  letters  he  received
from  one  of  Brazauskas’  supporters,  Notre  Dame   Theology   Department
Assistant Chairman Kern  Trembath.    In  the  first  letter,  Dr.  Trembath
accused  Father  Martelli  of  scandalizing  the  Church  by  firing  Church
employees, saying, “the fact that you are allowed  to  remain  a  priest  is
simply and strictly  a  measure  of  the  worldwide  shortage  of  priests.”
(Appellant’s App. at 1082.)  He described Father Martelli as “a bad  priest,
and . . . not a cultural  American.”   (Id.)   Dr.  Trembath  and  his  wife
followed up with a second letter a week later, threatening legal  action  on
their  own  behalf  and  demanding   “[c]omplete   resolution   of   Beverly
Brazauskas’ issue against you to the satisfaction of her and her  attorney.”
 (Id. at 1083.)


     In early November, Father Martelli sent copies  of  these  letters  to
Father Malloy, along with his own letter saying that  the  Trembath  letters
“include charges and accusations so alarming  in  nature  that  I  would  be
remiss not to bring them to your attention.”   (Id.  at  1081.)   Martelli’s
letter mentioned  Brazauskas  only  to  explain  that  her  termination  had
precipitated this verbal assault, and did not criticize her or her  actions.
 (Id.)  Father Martelli stated that he was  writing  “for  your  information
and not with the intent of causing more  trouble  for  anyone.”   (Id.)   He
copied the correspondence to Bishop D’Arcy, among others.


     Brazauskas does  not  explain  how  such  a  letter  could  support  a
reasonable inference that by making others aware of  Trembath’s  accusations
Father Martelli prevented her from getting the PCL position.


     Her allegations against the Bishop  are  on  similarly  shaky  factual
ground.  Both Bishop D’Arcy and Father Malloy deny that they ever  discussed
the PCL position, much less Brazauskas’  candidacy.   (Appellant’s  App.  at
139-40,  422-24.)   Brazauskas  says  she  can  prove   otherwise,   through
circumstantial evidence such as  records  of  telephone  calls  between  the
Bishop and Father Malloy’s office.  (See  Appellant’s  Br.  at  9-10.)   The
evidence she offers is at most marginally  sufficient  to  raise  a  genuine
issue of material fact, but for reasons  explained  below  her  claim  would
fail in any event.



                           IV.  Ex Corde Ecclesiae



     The Diocese defendants successfully argued  to  the  trial  court  and
Court of Appeals that they lacked jurisdiction  because  secular  review  of
Brazauskas’ claims would constitute excessive entanglement and  violate  the
Free Exercise clause of the First Amendment of the U.S. Constitution,  which
is applicable to the states through the Fourteenth  Amendment.   Brazauskas,
755 N.E.2d at 207-08. [4]   They likewise urge us  to  hold  that  Ex  Corde
Ecclesiae forecloses court inquiry because under the First Amendment  courts
may neither interpret such documents nor penalize the practice  of  religion
in fulfillment of the provisions of such a  document.   (Appellees’  Br.  at
40.)


     This argument is somewhat circular.  We cannot simply accept  that  Ex
Corde Ecclesiae governed the alleged  action  without  some  review  of  the
document.  See Draskovich v. Pasalich, 151 Ind. App. 397,  401,  280  N.E.2d
69, 72 (1972) (“Notwithstanding the limitations imposed on the civil  courts
. . . the civil  courts  can  (and  indeed  must  in  some  cases)  look  at
ecclesiastical documents and related evidence  concerning  religious  rites,
doctrines, polity and practices for the limited purpose of  determining  the
nature of the church organization.”)


     We also cannot accept without question an assertion  that  the  courts
may not review the legality of an action because that  action  was  pursuant
to a directive from  higher  church  authority.   See   Employment  Div.  v.
Smith, 494 U.S. 872  (1990).   In  Smith,  the  plaintiffs  ingested  peyote
during a sacramental ceremony of their  Native  American  Church.    Id.  at
874.  They were consequently fired from their jobs at a drug  rehabilitation
organization and denied unemployment benefits.  Id.


     The Supreme Court upheld the denial of benefits, holding that the Free
Exercise Clause does not exempt religiously motivated  action  from  neutral
laws of general  applicability.   Id.  at  881-82,  890.   Therefore,  under
Smith, church directives such as Ex Corde Ecclesiae are not the end  of  the
story, because they do not automatically insulate  the  faithful  from  such
neutral laws of general applicability  as  Indiana’s  blacklisting  statute.



     This is not to say that Ex Corde Ecclesiae  is  wholly  irrelevant  to
this case.  It establishes that higher church authority (namely,  the  Pope)
has directed Catholic universities such as Notre  Dame  and  local  Catholic
diocese  officials  to  cooperate  closely,  communicate,  and  develop   an
environment of mutual trust.  Bishop D’Arcy  and  other  diocesan  personnel
would therefore be acting in accordance  with  ecclesiastical  directive  in
keeping Father Malloy apprised of diocesan developments,  including  pending
lawsuits,  and  in  coordinating  with  him  on  administrative  and  policy
matters.





                 V. The Church Autonomy Doctrine After Smith



     There is an important and relevant limitation in the  Smith  decision.
Justice Scalia specifically noted that the case presented “a  free  exercise
claim unconnected with any communicative activity.”  Id. at 882.   Here,  in
contrast, the challenged activity was communicative.[5]


     Smith is distinguishable in another important respect, because it  did
not implicate the church autonomy doctrine.   This  doctrine  deals  with  a
church’s First Amendment right to autonomy in  “making  decisions  regarding
[its] own internal affairs,”  including  matters  of  faith,  doctrine,  and
internal governance.  Bryce, 289 F.3d at 655.


     The Bryce court cited Kedroff v. St. Nicholas Cathedral, 344  U.S.  94
(1952), in which the Supreme Court applied the First  Amendment  and  struck
down a statute  that  reassigned  control  over  a  cathedral  among  church
officials.  In Kedroff, the Court said that  religious  freedom  encompasses
“an independence from secular control or manipulation, in short,  power  [of
churches] to decide for themselves, free from  state  interference,  matters
of church government as well as those of faith and doctrine.”   Id. at  116-
17.


     The Tenth Circuit concluded, and we agree, that “[t]he Supreme Court’s
decision in Employment Division v. Smith  .  .  .  does  not  undermine  the
principles of the church autonomy doctrine.”  Bryce, 289 F.3d at  656.   See
also EEOC v. Catholic Univ. of Am., 83 F.3d 455, 462 (D.C. Cir. 1996)  (Free
Exercise clause forbids governmental action that encroaches  on  a  church’s
ability to manage its internal affairs).


     This doctrine does, of course, have limits.  As the New Jersey Supreme
Court recently said, “The First Amendment  does  not  immunize  every  legal
claim against a religious institution and  its  members.   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.”  McKelvey,  800  A.2d  at  844  (finding  genuine  issues  of
material  fact  as  to  whether  former  seminarian’s  claim  that  unwanted
homosexual advances damaged his career prospects could be litigated  without
offending First Amendment principles).


     Brazauskas would have us apply the blacklisting statute and  tort  law
to penalize communication  and  coordination  among  church  officials  (all
answerable to higher  church  authority  that  has  directed  them  to  work
cooperatively) on a matter of  internal  church  policy  and  administration
that did not culminate in any illegal act.  Such  a  holding  would  violate
the church autonomy doctrine and run counter to the Court’s  declaration  in
Cantwell v. Connecticut, 310 U.S. 296, 307  (1939):   “The  fundamental  law
declares the interest of  the  United  States  that  the  free  exercise  of
religion be not prohibited and that freedom to communicate  information  and
opinion be not abridged.”[6]


     We therefore conclude that under these facts the Free Exercise  Clause
entitles the defendants to  summary  judgment  on  Brazauskas’  blacklisting
claim.  Her tortious interference claim fails for similar reasons,  as  well
as the fact that she has not proven  any  illegal  conduct  by  the  Diocese
defendants.




                                 Conclusion



     We reverse dismissal of the case for lack of subject matter
jurisdiction, and remand for entry of summary judgment in favor of the
Diocese defendants.


Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in part and dissents in part with separate opinion.
Sullivan, Justice, concurring in part and dissenting in part.


      I agree with the majority that the trial court  had  jurisdiction  and
that Plaintiff's allegations of blacklisting and interference are  "at  most
marginally sufficient to raise a genuine issue of material fact."  Maj.  Op.
at 7.  But I disagree that the Diocese is entitled to summary judgment as  a
matter of law.


      Employment Div. v. Smith, 494 U.S. 872, 881 (1990), announced that the
First Amendment rarely “bars application of a neutral, generally  applicable
law to religiously motivated action.”  The Indiana blacklisting statute  and
common law tort of interference with prospective  advantage  at  issue  here
are neutral  laws  of  general  applicability.   The  majority  holds  that,
notwithstanding Smith, the Diocese is entitled  to  summary  judgment  as  a
matter of  law  for  two  reasons.   First,  the  majority  finds  that  the
challenged activity here was “communicative”  and  that  Smith  contains  an
exception to its general  rule  for  Free  Exercise  claims  connected  with
“communicative activity.”  Second, the majority finds  that  the  challenged
activity here is protected by the "church autonomy doctrine"  that  survived
Smith.


      As to the communicative activity defense, the phrase from Smith  cited
by the majority is part of a larger discussion in which  the  Supreme  Court
stated its precedents could not be read to allow individuals  to  engage  in
otherwise prohibited conduct merely because the conduct  is  accompanied  by
religious conviction.  See Smith, 494 U.S. at 882 (“‘Our  cases  do  not  at
their farthest reach support the proposition that a stance of  conscientious
opposition  relieves  an  objector  from  any  colliding  duty  fixed  by  a
democratic government.’”) (quoting Gillette v. United States, 401 U.S.  437,
461 (1971)).  As such, it does  not  establish  an  exception  from  Smith’s
general  rule  for  all  communicative  activity.    At   most,   the   term
"communicative activity"  encompasses  merely  that  communicative  activity
that is protected by constitutional provisions other than the Free  Exercise
Clause.  Smith, 494 U.S. at 881-82 (discussing prior cases).   In  my  view,
the “communicative activity” that forms the  basis  of  Brazauskas’s  claims
does not meet this standard.1


      As to the church autonomy doctrine defense, the Supreme Court has  not
yet had occasion to make clear whether this  doctrine  survived  Smith.2   I
find it hard to reconcile Smith with the doctrine’s continued  vitality,  at
least as applied to the facts of this case.


      Smith held to be constitutional a law banning the sacramental  use  of
peyote because the law was both neutral and generally applicable.  494  U.S.
at 878-82, 890.  A central concern behind Smith’s  neutrality  principle  is
the notion that a private right to ignore neutral and  generally  applicable
laws is, and should remain, a constitutional anomaly.  See Smith,  494  U.S.
at 879, 885.  The arguments  used  to  support  the  neutral  and  generally
applicable standard  cut  against  the  continued  vitality  of  the  church
autonomy defense.  Mere religious belief has never been a cognizable  shield
“from compliance with an otherwise valid law prohibiting conduct  the  State
is free to regulate.”  Smith, 494 U.S. at 879.  Indeed,  in  the  few  cases
where the U.S. Supreme Court applied the church autonomy  defense,  the  law
in question was neither neutral nor generally applicable.   See  Kedroff  v.
St. Nicholas Cathedral of the Russian Orthodox Church in N.  Am.,  344  U.S.
94 (1952) (invalidating 1925 New  York  statute  that  effectively  put  the
Russian Orthodox churches of  New  York  under  the  administration  of  the
Russian Church in America).


      Even if the church autonomy defense survived Smith, I do  not  believe
it bars Brazauskas’s claim.


      The church autonomy doctrine prohibits the government from  “lend[ing]
its power  to  one  or  the  other  side  in  controversies  over  religious
authority or dogma.”   Smith,  494  U.S.  877.   Since  its  inception,  the
doctrine has resonated most strongly  in  cases  involving  members  of  the
clergy because these are the cases that run the  greatest  risk  of  forcing
the government to take sides in a factional religious dispute.   But  courts
have not used the Free Exercise Clause  to  bar  claims  by  non-ministerial
employees of a religious institution.  See Shawna  Meyer  Eikenberry,  Note,
Thou  Shalt  Not  Sue  the  Church:  Denying  Court  Access  to  Ministerial
Employees, 74 Ind. L.J. 269, 276 (1998).


      Moreover, the church autonomy defense does not prohibit a state  court
from resolving church disputes if the court can and does resort  to  neutral
principles of law and applies them in  a  secular  fashion.   See  Jones  v.
Wolf, 443 U.S. 595, 602-04 (1979)  (analyzing  church  property  dispute  by
using neutral principles of law).  This is because  in  so  doing,  a  state
court avoids making determinations of the underlying religious dispute.


      In the  present  case,  Brazauskas  claims  that  certain  individuals
unlawfully denied her the opportunity to  work  at  a  university.   Neither
party suggested, as the church autonomy defense has traditionally  required,
that her prospective position would have involved  ministerial-type  duties.
To the extent that Brazauskas’s claim can be characterized  as  a  religious
dispute at all, the church autonomy defense  does  not  bar  a  claim  where
neutral principles of law are available to resolve the  case.   The  Indiana
blacklisting  statute  and  the  tort  of  interference   with   prospective
advantage are  religiously  neutral  and  generally  applicable.   Far  from
advantaging any particular religious faction or group, the laws provide  for
the general welfare by protecting an open and free market of  labor  in  all
spheres.  The Legislature could have accommodated  custom  by  providing  an
exception to the law but it  did  not.   Neither  the  Indiana  blacklisting
statute nor the tort of interference  with  prospective  advantage  benefits
any one religious faction  over  any  other.   And  just  as  there  was  no
contention in Smith that the Oregon drug law was  “an  attempt  to  regulate
religious beliefs,” neither is  there  any  similar  contention  here.   See
Smith, 494 U.S. at 882.

-----------------------
[1] Father Malloy also ordered dissolution of the PCL,  and  testified  that
he thought the program had already been eliminated.   (Appellant’s  App.  at
407.)  Brazauskas has gone to lengths to try to  prove  that  Father  Malloy
terminated the program “to  implement  the  Bishop’s  desires  that  Beverly
Brazauskas not be hired at Notre  Dame.”   (Appellant’s  Br.  at  13.)   For
reasons explained below this makes no difference to the resolution  of  this
case.
[2] The Diocese defendants correctly point out that the  more  appropriately
styled claim would be  tortious  interference  with  prospective  advantage.
(Appellee’s Br. at 22); see Kiyose v. Trustees of  Ind.  Univ.,  333  N.E.2d
886 (Ind. Ct. App. 1975).
[3] She also complains that the  defendants  prevented  her  from  obtaining
employment at any other Parish or Catholic institution in the  Diocese,  but
this complaint is waived for lack of argument that she sought or was  denied
any such positions.  See Ind. Appellate. Rule 46(A)(8)(b).
[4] They make no claim under the Indiana Constitution, so we do not address
its applicability to the case.
[5] In her complaint Brazauskas alleges, despite Bishop D’Arcy’s  deposition
testimony that he had “no clout”  in  employment-related  matters  at  Notre
Dame, that the Diocese exercised “abuse of  power  .  .  .  undue  influence
and/or duress” in preventing her employment as  PCL  director.   (Appellee’s
App.  at  20,  142;  Appellant’s  Br.  at  8.)   Brazauskas  supports   this
contention only by asserting that Ex Corde Ecclesiae, which calls  only  for
cooperative effort, gives the  Bishop  authoritative  influence  over  Notre
Dame.  (Appellant’s Br. at 8,  n.2.)   This  is  not  enough  to  support  a
reasonable inference that  the  Bishop  controlled  the  decision  regarding
Notre Dame’s PCL director, but even assuming that he did  exercise  decisive
influence over this undisputedly legal action, our conclusion would  be  the
same.
[6] This is  not  to  say  that  the  Free  Exercise  Clause  would  prevent
prosecution for an agreement with another person to commit  a  felony,  even
if that other person is another church member or official and the  agreement
implicates ecclesiastical issues, if the state also proves an overt  act  in
furtherance of  that  agreement  in  accordance  with  Indiana’s  conspiracy
statute.  See Ind. Code Ann.  §  35-41-5-2  (West  2001).   For  example,  a
defendant charged with conspiracy to commit murder via  terroristic  attacks
could not insulate himself  from  liability  merely  by  claiming  that  the
agreement element of the crime occurred within  a  protected  discussion  of
church doctrine or policy.
1 None of the majority, Brazauskas, or the Diocese appear  to  suggest  that
the disputed communicative  activity  would  be  constitutionally  protected
absent the claim of religious conviction.

2 I acknowledge the majority's citations to two federal Courts of Appeal
that have so held.  Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir.
2002); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996).