Argument recap: Blurry line between church and state
on Oct 5, 2011 at 3:41 pm
The further the Supreme Court went on Wednesday to find ways not to intrude into the affairs of religious groups, the deeper it found itself immersed in those very affairs. There was no way, Justice after Justice admitted, to define a bright boundary between state and church. Three lawyers were not much help with that, either. The Court thus was left with a troubling question: can it decide the case before it: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al. (docket 10-553)?
From Justice Ruth Bader Ginsburg’s first question, about who qualifies as a “minister,” to Justice Elena Kagan’s question near the end, about church autonomy versus individual conscience, the Court was in the thick of talking religion as much as if this were a Vatican conclave among Cardinals. And, at the lectern, even a lawyer extremely skilled in the constitutional law of the First Amendment, Douglas Laycock, put so many qualifications into his supposedly categorical theory that he sounded like a young seminarian confusing dogmatism with relativism.
In short, what outwardly seemed like a fairly simple question over whether a parochial school teacher who teaches mostly non-religious subjects is or is not protected against workplace discrimination was, on close examination, anything but simple — or even judicially manageable. Nothing more clearly illustrated the Court’s difficulty than the extended exchanges over whether the government may properly inquire into what Lutherans believe about congregational solidarity but dare not examine the Catholic belief about confining its clergy to men.
The case is about a Michigan teacher, Cheryl Perich, who contends that she was fired in violation of the Americans with Disabilities Act, to retaliate because she threatened to complain to the government about being turned away from her job when she fell ill, and it is about her parochial school, which contends that she was fired for religious insubordination for not working out her grievance within the church family. The Court is thus confronted with the issue of whether the ADA could not apply to Ms. Perich because she was a “minister” under the “ministerial exception” to anti-bias law. But the energetically engaged Justices took the case well beyond that issue and the conflicting views over the motive for her firing, repeatedly probing to the core of church-state relations.
Only one Justice, Antonin Scalia, seemed sure of his ground. He was wholeheartedly in favor of declaring that what went on between the school’s sponsoring church and its disobedient teacher was none of the government’s business, shielded behind a high wall of separation between church and state (higher, indeed, than Scalia usually is willing to defend).
The discussion focused not only on who within a church hierarchy or payroll may sue to complain about discrimination on the job, but more importantly on how the government is to examine that claim while respecting the autonomy of the religious group and avoiding second-guessing of religious doctrine. That is hardly a new dilemma, but its difficulty was manifested anew throughout the hour of argument. Justice Stephen G. Breyer, in a series of comments, tried to suggest a manageable outcome. Although his suggestion was somewhat rambling, it came out something like this: take the church at its word that its motive for firing Perich was for a religious reason, since the ADA allows a church to insist that its workers obey its doctrine, but then decide the case on whether she had ever been told that resolving her claim internally was a condition of her employment. Presumably, if she was not told, she would win; if she had been told, the church would win — end of case.
But there were no supporting comments from other Justices for that approach. The complexities of avoiding intrusion, on the one hand, and enforcing anti-bias law, on the other, were far more fascinating to Breyer’s colleagues (all of whom, except Justice Clarence Thomas, took an active part).
University of Virginia law professor Laycock, perhaps the country’s leading academic expert on the Constitution’s religion clauses, was there to argue for the church that anyone holding “an ecclesiastical office” and teaching the faith, among other “important religious functions,” was a “minister” and could not sue under anti-discrimination law. But, while he faced criticism from the other side that his rule was too categorical, he had significant difficulty keeping it within a well-defined compass. At one point, for example (and to the seeming astonishment of Justice Scalia), he suggested that the definition of “minister” was a legal issue, not a religious question. So, Scalia said, “you would allow the government courts to probe behind the minister’s suggestion that this person is a minister?”
As members of the Court, especially Justice Sonia Sotomayor and Justice Anthony M. Kennedy, expressed some alarm at shutting off government inquiries into claims of retaliation for pursing one’s rights, Laycock began making concessions, suggesting, for example, that “there has to be some kind of qualitative threshold” for invoking the “ministerial exception.” And, he said, “there will be line-drawing problems” — supposedly, something that a court would have to probe in order to know whether the exception applied.
He also said that, if the claim of the “ministerial exception” was only a “sham,” the courts could go ahead with the case. But, since he had resisted allowing a case to proceed if the claim of the exception was merely “a pretext” for a biased employment action, Scalia wondered whether there was a difference between a sham and a pretext. Justice Samuel A. Alito, Jr., did give Laycock some support on his resistance to judicial inquiry into a “pretext” claim against the invocation of the “ministerial exception.” In doing so, Alito began the exploration of whether church-state separation required a hands-off policy for the doctrines of one faith, but not of another.
After a series of seeming concessions by Laycock, Justice Kennedy suggested that they embraced this very case. Noting that the professor would allow judicial inquiry into the number of secular functions a parochial teacher had, Kennedy said “that’s what this case is. But you don’t even want that issue to be tried. You say that issue can’t even be explored.” It was apparent that several members of the Court were growing frustrated with where Laycock’s argument was actually going. They seemed to be hoping for some simplicity, but they were not getting it in any significant measure.
If the professor’s presentation bordered on the imprecise, it was not nearly as indistinct as that offered by the federal government’s lawyer before the Court, Assistant to the U.S. Solicitor General Leondra R. Kruger. The Justices tried, without notable success, to tie Kruger down on just how far the government was prepared to allow the “ministerial exception” to go. She was so committed to arguing the virtue of enforcing the anti-discrimination laws that she left the Justices with the impression that an anti-bias case should not be judged differently whether the employer involved was religious, or not. The comment amazed Justice Scalia.
Just because the government is enforcing an anti-discrimination law against a religion, Kruger argued, does not mean that it is going so far as to tell a church whom it must have as a minister. But, short of that extreme, she seemed to see little if any distinction between an employment dispute between a religious organization and, say, a labor organization. In this case, she said, “the government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”
Kruger left some members of the Court, including Justice Kagan, unsure about whether the government accepted that religious employers could rely at all on either one of the First Amendment’s religion clauses, since she said repeatedly that the only part of the First Amendment that would come into play in such a case was the “freedom of association” derived from First Amendment principles. And she left several members of the Court with the understanding that it was the government’s position that a court could inquire into the validity of a Lutheran claim about the doctrine of religious solidarity within a religious family, while it could not probe the Catholic dogma that only men can be ordained.
In the end, she did give Justice Breyer some support for the outcome he suggested, to stay within the confines of the ADA law itself, to avoid the “tough constitutional question.”
Ms. Perich’s lawyer before the Court, veteran Washington advocate Walter Dellinger, had too little time — given the heavy flow of questioning from the bench — to make much of an argument other than that Professor Laycock was pressing a categorical rule that would not work. He did make an effort to elevate to constitutional rank the right to go into the courts with a legal grievance, and he suggested that there were ample constitutional doctrines to protect the autonomy of churches.
(Disclosure: The law firm of Goldstein & Russell filed an amicus brief in this case in support of respondent Cheryl Perich. Some of the attorneys in that firm work for this blog in various capacities, but the author of this post operates independently of that firm’s law practice.)