Here are more highlights from yesterday's Supreme Court arguments (pdf) in the Hosanna-Tabor case (see part I of my highlights here; see my non-lawyery preview of the case here).
In the second half of the hearing, justices questioned Leondra Kruger, who argued on behalf of the government against the right of the religious school to dismiss teacher Cheryl Perich. Ms. Kruger seemed to surprise Justices Kagan and Scalia – and perhaps lose Breyer and Alito – with her contention that the First Amendment's guarantee of religious freedom is not especially relevant in this case.
CHIEF JUSTICE ROBERTS: [I]s there a ministerial exception distinct from the right of association under the First Amendment?
MS. KRUGER: We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses.
CHIEF JUSTICE ROBERTS: Is there anything special about the fact that the people involved in this case are part of a religious organization?
MS. KRUGER: We think the basic contours of the inquiry are not different. We think how the inquiry plays out in particular cases may be.
JUSTICE SCALIA: That's extraordinary. That is extraordinary. We are talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application?
MS. KRUGER: The contours — the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here. And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.
…
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: I would begin with looking at the burdens on association under the balancing test. I think that the core of the understanding of the ministerial exception as it was elaborated in the lower courts is that there is a fundamental difference between governmental regulation that operates to interfere with the relationship between a church and those who would govern it, those who would preach the word to the congregation, those who would administer its sacraments, on the one hand, and the more public relationship between a church and a school teacher and others that provide services to the public at large.
…
MS. KRUGER: I don't think it's a question of the importance of…function to the — the religious association.JUSTICE BREYER:…I'm really — this is tough and I'm stuck on this, I don't see how you can avoid going into religion to some degree. You have to decide if this is really a minister, for example, and what kind of minister. That gets you right involved. Or if you're not going to do that, you're going to go look to see what are their religious tenets? And that gets you right involved. I just can't see a way of getting out of something — of getting out of the whole thing. I don't see how to do it.
MS. KRUGER:… I think the…question becomes, with respect to adjudicating a particular case, whether deciding the case would require the court to decide disputed matters of religious doctrine or to second-guess essentially subjective -
JUSTICE ALITO: Well, if — if the plaintiff proceeded that way…I assume she would…introduce testimony by experts on Lutheranism, theologians, professors of religion about how the — about this — this tenet, and it isn't really — they might say, well, it's really not that strong and it once was, but it's faded, and it's not - it's not widely enforced. And then you'd have experts on the other side, and you'd have a court and a lay jury deciding how important this really is to Lutherans. Is that how that would play out?
MS. KRUGER: No, it's not how it would play out.
JUSTICE ALITO: How are we going to avoid that? I just don't see it.
MS. KRUGER: Any inquiry into the validity of a particular religious doctrine is simply irrelevant to the adjudication of the dispute, which is designed to find out just one thing, which is whether the —
JUSTICE ALITO: No. It's not just irrelevant. I've dozens and dozens and dozens of pretext cases, and in practically every pretext case that I've seen one of the central issues is whether the reason that was proffered by the employer is the real reason, is an important reason for that, for that employer, and whether they really think it's important and whether they apply it across the board. That's almost always a big part of the case. And once you get into that, you're going to get into questions of — of religious doctrine. I just don't see it.
