Did the Obama Justice Dept. ‘throw religion under the bus?’

The Supreme Court heard arguments today in Hosanna-Tabor Evangelical Lutheran Church and School v. the Equal Employment Opportunity Commission.

The case involves a teacher who appealed her firing on religious grounds. The question is whether the "ministerial exception" to discrimination laws applies to non-ministers; how much "ministering" must a teacher practice before an employer may declare her exempt from discrimination protections.

Or at least it was supposed to be. As I wrote in my Supremes setup a few months ago, Jewish groups are on both sides of this one, and they expected it to be about how much of an employee’s time must be taken up by religion before the "ministerial exception" kicks in, allowing the religious institution to fire her without recourse. Here’s Scotusblog’s roundup of briefs.

As it turns out, we may have a major constitutional argument here. The Obama Administration seems to want to reserve for the executive branch the determination of when ministerial exception applies and when it does not.

The way Nathan Diament, OU’s Washington director, put it in a tweet is that the DOJ "threw religion under the bus." He expanded on that notion on the OU blog, here and refers also to this Journal op-ed by Michael McConnell today anticipating the Obama administration’s arguments.

What Diament calls the "jaw-dropping " and "deeply troubling" Obama administration argument emerges in an exchange between the justices and Leondra Kruger from the solicitor general’s office. Samuel Alito has asked Kruger to explain why a Lutheran religious precept against taking disputes to civil courts is one the government is willing to disrupt, while it would not impose its standards on Roman Catholics for hiring only male priests.

Notable is how John Roberts and Antonin Scalia and Samuel Alito (conservative GOP appointees) and Elena Kagan (a liberal Obama appointee) appear equally amazed at Kruger’s arguments.

A fuller excerpt is below the jump and the hearing’s entire transcript is here (PDF.)  But here’s what may be the key exchange:

JUSTICE KAGAN: Miss Kruger, if I could just  clarify for a second there, because you’re now sounding  as though you want to draw a sharp line between retaliation claims and substantive discrimination  claims, and I didn’t get that from your brief. So is that, in fact, what you’re saying?

MS. KRUGER: I think that there is an important distinction to be made between the  government’s general interest in eradicating  discrimination from the workplace and the government’s interest in ensuring that individuals are not chilled  from coming to civil authorities with reports about civil wrongs.
But if I could continue, I think that the -­

JUSTICE KAGAN: So are you willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims?

MS. KRUGER: I don’t think that those are the only two sets of inquiries that are important in the balancing.

A little background: Kruger keeps citing prior cases, including Bob Jones University, which cited its fundamental beliefs in banning mixed-race dating, and U.S. v. Lee, a 1982 case in which an Amish  man refused to pay Social Security taxes for his employees, also citing his beliefs.

So Kagan — herself the most recent Solicitor General — seems to be trying to help Kruger out, positing that yes, there are instances when beliefs so violate a social consensus, they require exemptions to constitutional freedoms of religious expression. These might include bans on race mixing, tax evasion — and in this case, efforts to retaliate against whistleblowers. 

But Kruger doesn’t want the help, and sticks to upholding government discretion in deciding when First Amendment religious freedoms apply. A little further on, she tells Roberts that the exemptions raised in the court do not "fully account for all of the public and private interests at stake."

Kagan says this is "amazing," and at least three of the other justices seem to agree.

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JUSTICE ALITO: When you say that, are you  not implicitly making a judgment about the relative  importance of the Catholic doctrine that only males can  be ordained as priests and the Lutheran doctrine that a  Lutheran should not sue the church in civil courts? I  don’t see any distinction between — I can’t reconcile  your position on those two issues without coming to the  conclusion that you think that the Catholic doctrine is  older, stronger and entitled to more respect than the Lutheran doctrine.

MS. KRUGER: No, we are not — We are not  drawing distinctions between the importance of a  particular religious tenet in a system of religious belief. But the difference is that the government has a indeed foundational interest in ensuring, as a matter of  preserving the integrity of the rule of law, that  individuals are not punished for coming -­

JUSTICE BREYER: You are saying that going  to church — sorry — that going to court is a more  fundamental interest than a woman obtaining the job that  she wants, which happens in this case to be a Catholic  priest. But that’s the distinction you’re making.

MS. KRUGER: I am drawing a distinction  between -­

JUSTICE BREYER: Well, I don’t know why that  doesn’t — I mean, you may be right, but it isn’t  obvious to me that the one is the more important than  the other.

MS. KRUGER: The government’s interest in  preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to  the rule of law.

JUSTICE KAGAN: Miss Kruger, if I could just  clarify for a second there, because you’re now sounding  as though you want to draw a sharp line between retaliation claims and substantive discrimination  claims, and I didn’t get that from your brief. So is that, in fact, what you’re saying?

MS. KRUGER: I think that there is an important distinction to be made between the  government’s general interest in eradicating  discrimination from the workplace and the government’s interest in ensuring that individuals are not chilled  from coming to civil authorities with reports about civil wrongs.
But if I could continue, I think that the -­

JUSTICE KAGAN: So are you willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims?

MS. KRUGER: I don’t think that those are the only two sets of inquiries that are important in the balancing. And if I could continue, I think the government -­

CHIEF JUSTICE ROBERTS: I think that question can be answered yes or no.

MS. KRUGER: I think that that doesn’t — I think the answer is no, in part because that doesn’t fully account for all of the public and private interests at stake. The government’s interest extends  in this case beyond the fact that this is a retaliation  to the fact that this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its  doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws. And this Court has recognized in cases like Bob Jones that church- operated schools sit in a different position with respect to the — the permissible scope of governmental regulations, the churches themselves do.

JUSTICE SCALIA: Even with respect to their  religion classes and their theology classes? It’s extraordinary.

MS. KRUGER: Well, the government -­

JUSTICE SCALIA: Just because — just  because you have to comply with State education  requirements on secular subjects, your — who you pick  to — to teach theology or to teach religion has to be — has to be subject to State control?

MS. KRUGER: Justice Scalia, to be clear,  the government’s interest in this case is not in  dictating to the church-operated school who it may  choose to teach religion classes and who it may not. It  is one thing and one thing only, which is to tell the  school that it may not punish its employees for  threatening to report civil wrongs to civil authorities.  That is an interest that we think overrides the burden on the association’s religious message about the virtues of internal dispute resolution as opposed to court  resolution.

CHIEF JUSTICE ROBERTS: You’re making -­ you’re making a judgment about how important a  particular religious belief is to a church. You’re  saying — this may just be the same question Justice  Alito asked — but you’re saying: We don’t believe the  Lutheran Church when it says that this is an important  and central tenet of our faith.

MS. KRUGER: No, absolutely not, Mr. Chief  Justice. We do not dispute — when they assert that it’s an important tenet, we assume its validity, we  assume that they are sincere in that religious belief.  But just as in United States v. Lee a sincere religious  belief was not sufficient to warrant an exemption from  generally applicable tax laws, as in Bob Jones, or -­

CHIEF JUSTICE ROBERTS: On the other hand,  the — the belief of the Catholic Church that priests  should be male only, you do defer to that, even if the  Lutherans say, look, our dispute resolution belief is  just as important to a Lutheran as the all-male clergy  is to a Catholic.

MS. KRUGER: Yes. But that’s because the balance of relative public and private interests is different in each case.

JUSTICE KAGAN: Do you believe, Miss Kruger,that a church has a right that’s grounded in the Free Exercise Clause and-or the Establishment Clause to institutional autonomy with respect to its employees?

MS. KRUGER: We don’t see that line of church autonomy principles in the religion clause jurisprudence as such. We see it as a question of freedom of association. We think that this case is  perhaps one of the cases -­

JUSTICE KAGAN: So this is to go back to Justice Scalia’s question, because I too find that amazing, that you think that the Free — neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.

MS. KRUGER: We think that this is one of the cases that Employment Division v. Smith may have been referring to when it referred to free association claims that are reinforced by free exercise concerns.
It’s certainly true that the association’s claim to autonomy in this case is one that is deeply rooted; and concerns about how it exercises its religion, those two things merge in some ways in that respect. But -­

JUSTICE SCALIA: I don’t think they — they merge at all. Smith didn’t involve employment by a church. It had nothing to do with who — who the church could employ. I don’t — I don’t see how that has any relevance to this. I would — I didn’t understand your answer to the Chief Justice’s question. You — you say that there were different institutional values or government values involved with respect to a — to a Catholic priest than there is with respect to this Lutheran minister. Let’s assume that a Catholic priest is — is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual.