Fontana Case Raises Church-State Separation Issue

By Jane Gargas
Yakima Herald-Republic [Yakima WA]
May 4, 2006

Deciding who is a minister and who is not is one of the core issues in a case unfolding in Yakima County Superior Court this afternoon involving the Catholic Diocese of Yakima and a former employee.

Robert Fontana, former director of evangelism for the diocese, brought suit against the diocese in August, saying that he had been constructively discharged, or forced to resign.

The diocese has countered with a motion to dismiss the case.

Today's hearing in front of Judge Susan Hahn will determine whether the case proceeds.

In the lawsuit, Fontana's lawyer, Gary Lofland, contends that Fontana was forced to leave his job because he was critical of how the diocese was applying its policy on clergy sexual misconduct with vulnerable people.

Diocesan lawyer Robert Boggs filed the motion for dismissal on the grounds that Superior Court does not have jurisdiction in the case because of the constitutional separation of church and state.

"We're seeking dismissal under the free exercise clause of the First Amendment," Boggs explained in a Wednesday interview.

The diocese believes Fontana falls into the category of "ministerial exception," Boggs said.

Basically, he'll argue that neither state nor federal courts have jurisdiction over church decisions regarding its ministers.

The tricky part comes over who exactly is a minister.

In past cases, Boggs said, people defined as ministers didn't have to be ordained and could be employed in theological teaching. Those definitions fit Fontana's role in the diocese, he said.

In addition, Boggs noted, "We're saying that the courts can't interfere with how a bishop directs his delegation or ministers."

Not surprisingly, Lofland doesn't see the issue the same way.

While declining to disclose what his arguments in court today will be, Lofland emphasized that Fontana was acting to protect the safety of children from sexual abuse on the part of clergy members.

"He was trying to do everything he could to make sure children were not subject to harm," Lofland said Wednesday.

According to Lofland, today's arguments will revolve around "a tough historical issue."

But, in Boggs' view, the case is not that complex: "In my opinion, the issue is pretty darn clear."

In filing suit last summer after working for the diocese for 25 years, Fontana said he was reprimanded twice at work in 2004 for questioning how the diocese was handling the case of a priest.

The latter was being investigated by the FBI and the county prosecutor's office on suspicion of possessing child pornography.

Both agencies ultimately declined to file charges.

According to Lofland, Fontana was troubled when the priest wasn't placed on administrative leave while the investigation continued, as church policy required, but instead was allowed to resume religious duties in the diocese.

The priest is no longer in the diocese; two years ago, he was granted a sabbatical and left for the Midwest, where church officials say he is being monitored.

Fontana subsequently resigned from his position in the diocese.

He is now director for Catholic Life Ministries Northwest, a Yakima educational outreach organization. On Friday, he will receive his doctorate in ministry from the Graduate Theologian Foundation in South Bend, Ind.

In today's case, Hahn could rule from the bench or take the case under advisement and rule later. If she rules in favor of the diocese, Fontana could choose to appeal the case. If she rules against the diocese, the case goes forward in Superior Court.

* Jane Gargas can be reached at 577-7690 or


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