Is there anything more exciting than a fresh SCOTUS argument transcript? Here are some highlights from today's arguments in Hosanna-Tabor.
Questioning Professor Douglas Laycock, counsel for the Hosanna-Tabor Evangelical Lutheran Church and school:
CHIEF JUSTICE ROBERTS: Counsel, you referred to the ministerial exception, but of course your position extends beyond ministers. How do we, how do we decide who's covered by the ministerial exception and who is not?
MR. LAYCOCK: Right. Here I think it's very easy. She's a commissioned minister in the church. She holds ecclesiastical office. She teaches the religion class.
CHIEF JUSTICE ROBERTS: Well, let's say it's a teacher who teaches only purely secular subjects, but leads the class in grace before lunch. Is that somebody who would be covered by the ministerial exception?
MR. LAYCOCK: The lower courts have said that person is not covered and we are not challenging that rule. Obviously, there has to be some kind of quantitative threshold. There will be line-drawing problems.
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How many religious functions you perform can be explored. The issue that can be explored is whether she's a minister. We think she clearly is. The issue -JUSTICE SCALIA: And that term is a legal term. What constitutes a minister is — is decided by the law, not by the church, right?
MR. LAYCOCK: That is correct.
JUSTICE SCALIA: Okay.
MR. LAYCOCK: That is correct.
JUSTICE KAGAN: Is that correct?
JUSTICE ALITO: But I thought with a lot of deference to the church's understanding of whether someone is a minister.
MR. LAYCOCK: We think there should be deference to good faith understandings. But we are not arguing for a rule that would enable an organization to fraudulently declare that everyone is a minister when it's not true.
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JUSTICE SCALIA: What makes it not true? What is the legal definition of "minister"? What is it? That you have to lead the congregation in their religious services or what? What is it?MR. LAYCOCK: We think — we think if you teach the doctrines of faith, if that is per your job responsibilities to teach the doctrines of the faith, we think you're a minister.
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JUSTICE ALITO: Mr. Laycock, didn't this inquiry illustrate the problems that will necessarily occur if you get into a pretext analysis — the question of was she told that she had violated the church's teaching about suing in a civil tribunal. Well, that depends. The significance of — let's assume she wasn't told. The significance of that depends on how central a teaching of Lutheranism this is.MR. LAYCOCK: That's just part of the problem. You've got to figure, how does this doctrine work? How important is it? How does it apply to the facts of this case? How does it interact with other doctrines?
