'Extraordinary'

WASHINGTON-The U.S. government argued before a panel of six Catholic and three Jewish Supreme Court justices that religious institutions should be treated like any other institution in matters of hiring, shocking the justices in an already blockbuster religious freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

"This is extraordinary-extraordinary," Justice Antonin Scalia said to the government's lawyer during oral arguments Wednesday. "There's nothing explicitly in the Constitution that prevents the government from mucking around in a labor organization. But there in black and white in the Constitution are special protections for religion."

One of the government's lawyers, Leondra Kruger, assistant to the solicitor general, said the ministerial exception, a court-created law that gives religious institutions freedom from federal oversight in hiring decisions, is already incorporated in the "freedom of association," which gives labor unions the right to exist, for example.

One of the liberal justices jumped in on Scalia's side. "I too find this amazing," said Justice Elena Kagan.

The government essentially argued that the ministerial exception should be tossed because religious institutions could abuse it, leaving employees with no legal recourse. Kruger suggested a minister who administers sacraments in the church should be protected from federal oversight, but not necessarily employees at a "more public" church school.

The details of the case are this: Cheryl Perich, a church-commissioned teacher at Hosanna-Tabor-a church and school in Redford, Mich., affiliated with the Lutheran Church-Missouri Synod (LCMS)-was diagnosed with narcolepsy and took leave. When she asked to return to work, the school said it didn't think she was ready. She threatened to sue, and then the church withdrew her commission and fired her, saying that she violated church teaching by going to courts instead of resolving the dispute through the church's established tribunals, as LCMS teaching requires.

The Supreme Court has never ruled on who falls under the ministerial exception before, and all of the justices seemed troubled that courts were deciding who counted as a minister and who didn't.

"Define minister for me again?" Justice Sonia Sotomayor asked Douglas Laycock, the attorney representing the church. Laycock tried to urge the court to avoid the bigger question of who is a minister and who isn't, and focus instead on the individual in the case, who was a commissioned minister in the LCMS.

"Here it's very easy," he said. But the justices weren't satisfied that a title was the only thing that defined a minister, so Laycock elaborated, saying, "If you teach the doctrines of the faith, that qualifies."

The justices seemed to reject the 6th U.S. Circuit Court of Appeals' reasoning that Perich did not fall under the ministerial exception because she spent more minutes of the day teaching "secular" subjects than religious.

"That can't be the test," Chief Justice John Roberts said. "The Pope is a head of state-that's a secular function. So he's not a minister?"

Walter Dellinger, another lawyer for the government, responded that the ministerial exception is "both over- and under-inclusive."

The teacher, Perich, attended the arguments and proclaimed outside the court afterward that her firing had "nothing to do with religion." She told me she wasn't a minister in the LCMS-"I'm female"-even though she was indeed a commissioned minister in the LCMS. Her attorney standing beside her added, "She was not a true minister."

The facts of the case agitated the swing vote on the court, Justice Anthony Kennedy. "She was fired simply for asking for a hearing," he said.

Laycock, the church's attorney, responded, "She could have had a hearing in the synod before decisionmakers who would have been independent of the local church. This court has repeatedly said churches can create tribunals." That led to a discussion about how central the teaching about resolving disputes within the church is to the LCMS, as the justices tried to understand whether the doctrine was simply a pretext for firing the narcoleptic teacher.

"A particular religious doctrine is simply irrelevant," said Kruger, the government's lawyer. "No, it's not just irrelevant," said Justice Samuel Alito. He said the government was arguing that the doctrine of the LCMS about resolving disputes within the church was less important than, say, the Catholic Church's doctrine allowing only men to serve as priests, a doctrine courts protect. "You think the Catholic doctrine is older, stronger, and deserving more respect than the Lutheran doctrine?" he asked.

The justices didn't indicate how they might define a minister, but both the liberal and conservative justices treated the government's position against the ministerial exception as radical.

After the argument, Luke Goodrich, a counsel for the church with the Becket Fund for Religious Liberty, said he also found the government's arguments extraordinary. "They didn't have to take that position," he said. "They want to drive out the notion that religion is distinct in any way-they want religion to be treated like any other cause. The justices were totally rejecting that."

Listen to a report on this church/school case on The World and Everything in It.