Monday, October 10, 2011

Cautious Optimism After Supreme Court Hears Oral Arguments in Hosanna Tabor Case


WASHINGTON, D.C. — The U.S. Supreme Court this week heard oral arguments in the closely followed 1st amendment case, Hosanna Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 10-553, and some constitutional scholars are hopeful that religious liberty will emerge unscathed.
“I am cautiously optimistic. The Court was visibly skeptical of the government’s position,” said Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law who represented Hosanna Tabor before the high court.
In the Hosanna Tabor case, the justices must decide whether a Lutheran church in Michigan, which fired a teacher at a church school, should be subject to federal anti-discrimination laws protecting disabled employees. The church contends that the intrusion of the courts in the appointment of a church minister “would be a revolution in relations between church and state.”

After the teacher sued, the EEOC took up the case. The Justice Department filed on behalf of the former employee, challenging the “ministerial exception” — described by constitutional scholars as “constitutional doctrine” that has prevented the state from intruding in similar employment disputes that involve church appointments.
The case marks the first time the Supreme Court will address a challenge to ministerial exception. The U.S. Conference of Catholic Bishops and other religious groups viewed the oral arguments on Oct. 5 as an opportunity to glean clues about the justices’ likely decision.
Now the early word is that the justices are unlikely to adopt the most extreme position of the EEOC and the Justice Department, though no one is prepared to say whether there could be a more limited challenge to the ministerial exception.. That said, several important exchanges between the government’s lawyer and the justices gave hope to advocates for robust religious liberty protections.

Religion Blind
During the oral argument, Leondra Kruger, the U.S. solicitor general’s assistant who represented the Equal Opportunity Employment Commission, was asked whether the high court should accommodate even a limited ministerial exception. Kruger responded that the justices should make no distinction between secular or religious employers.
“That is extraordinary,” Justice Antonin Scalia responded. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”
More significantly, the liberal Justice Elena Kagan was also startled by the government’s stance. “I, too, find that amazing,” Justice Kagan remarked.
The comments by the justices increased the likelihood that the ministerial exception would survive this unprecedented challenge.
Douglas Laycock said he had further cause for hope.
“The government had one argument designed to cut off debate and knock out the ministerial exception in one punch, that under the Court’s 1990 decision in Employment Division v. Smith, it’s enough that the employment discrimination laws are neutral and generally applicable, and those laws apply without more to the hiring and firing of ministers. The Court plainly rejected that idea, with the author of Smith (Justice Scalia) leading the way,” said Laycock.
Carl Esbeck, a professor at the University of Missouri School of Law, has described the government’s “preferred” position in the case as “religion-blind:” the government “doesn’t have to take into account that there are religious citizens with beliefs and practices. And that means there is no ministerial exception.”
Now, in the wake of the oral arguments, the “religion-blind” position is not expected to get much traction. “There are strong signs that the entire Court is rejecting what Justice Kagan called the Department of Justice’s ‘amazing’ position,” said Ed Whelan, who blogs at National Review’s Bench Memos, where ongoing commentary on the oral arguments is provided by Notre Dame constitutional scholar Richard Garnett and others.

Priesthood at Risk?
A news story on the Hosanna Tabor oral arguments, published in The New York Times, suggested that the EEOC could face an uphill battle: “There was widespread agreement,” reported The Times, “that the federal government’s proposed approach, which gives limited weight to the First Amendment’s religion clauses in disputes between religious groups and their employees, is too narrow.”
The question now is whether the religious liberty of churches could still be constrained in the court’s final decision, which is expected by next summer.
The government’s “fallback position,” said Esbeck, is that the ministerial exemption is only for clergy. And that raises questions about whether Catholic women religious would be covered under the ministerial exception, and whether outsiders would decide who was “clergy.”
During the oral arguments, justices probed a range of potential problems associated with the government’s position. Chief Justice John Roberts noted that the government was not challenging the Catholic Church’s right to maintain an all-male priesthood, and had focused on the public’s interest in defending anti-discrimination statutes protecting teachers. But his observation seemed to imply that the government’s position could be a moving target, with the countercultural practice of an all-male priesthood as a future concern.
“The belief of the Catholic Church that priests should be male only — you do defer to that,” said the Chief Justice, while noting that Lutheran Church may view its right to appoint its own ministers as equally central to its teaching. 
Kruger said the government was more concerned with intervening in a discrimination case involving a teacher than challenging the all-male priesthood “because the balance of relative public and private interests is different in each case.”
When Justice Stephen Breyer brought up the issue again, Kruger did not refer to the 1st amendment in her response: “The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.”
According to Laycock, Kruger’s responses suggest that the government’s position is “incoherent and unworkable, requiring courts to balance a great many factors and draw many fine lines, all in unspecified ways.”
The justices also expressed concern that the minsterial exception might be employed to shield churches from any challenge to discriminatory practices involving employees who are not clergy. As the New York Times pointed out:
:“If laws forbidding discrimination in employment applied fully to religious groups, the government could insist that the Roman Catholic Church allow women to serve as priests. If such laws do not apply to religious groups at all, a church could fire a janitor because he is black.” 
Laycock acknowledged that the “Court worried a bit about how to decide who’s a minister.”  But he has concluded that the government’s “problems are much greater than ours, and I think the Court will reaffirm the ministerial exception.”

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