Supreme Court struggles with how to reconcile "ministerial exception" with secular jurisdiction of civil rights

Mucho commentary about reactions from the Justices to the arguments this morning in the Hosanna-Tabor case, a dispute with potentially major ramifications in cases involving religious defendants seeking exemptions from enforcement of anti-discrimination laws. Full transcript is here. From HuffPo:

...[T]he Court is considering for the first time the scope of the "ministerial exception" -- a doctrine developed by the lower courts over the past 40 years. Under the ministerial exception, the federal courts decline to hear certain discrimination lawsuits brought by employees of religious organizations. The exception is meant to preserve the First Amendment wall between church and state.

In 2000, Hosanna-Tabor, a Lutheran grade school in Michigan, made Cheryl Perich a "commissioned minister" so that she could be promoted from a year-to-year contract employee to a "called" teacher deemed religiously fit for a permanent position at the school. As a called teacher, Perich taught a variety of secular subjects as well as a religion class. In 2004, she went on disability leave for what was soon diagnosed as narcolepsy. Per its policy, the school asked her to resign once her absence exceeded six months, but she refused. Rather than submit to the school's request that her complaint be handled within the Lutheran church's own adjudicative process, Perich threatened to file suit with the EEOC under the Americans with Disabilities Act. In response, the Hosanna-Tabor congregation rescinded Perich's "call," which drove her to follow through on her threat to file with the EEOC.

On Wednesday morning, Douglas Laycock, a law professor at the University of Virginia who represented Hosanna-Tabor..., began by proclaiming that "the churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

Justice Sonia Sotomayor didn't buy Laycock's aphorism. "We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children. Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable," asked Sotomayor. "And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires [by] reporting it?"...

Turning from hypotheticals to the facts of the case, Justice Anthony Kennedy, who is known for his robust view of the courts' role, expressed astonishment that Perich "was fired for simply asking for a hearing." And Laycock's response -- that Perich could get a hearing from the church for her claims against the church -- hardly heartened Kennedy. "You're asking for an exemption so that these issues can't even be tried," said the justice...

The paradigmatic ministerial exception for the Roman Catholic Church against sexual discrimination lawsuits brought by would-be female priests loomed large during oral argument. Scalia, Breyer, Alito and Roberts all took turns pressing Kruger and Perich's lawyer, former Acting Solicitor General Walter Dellinger, on why a Lutheran tenet commanding internal dispute resolution did not deserve the same respect as Catholicism's male-only priesthood. The lawyers could not answer to the justices' satisfaction.

During Laycock's argument, Justice Ruth Bader Ginsburg did have a hard time finding consistency in Hosanna-Tabor's policy on employee complaints. In his written briefs, Laycock had said that an employee could bring some suits, such as a complaint about unsafe working conditions, against Hosanna-Tabor without running into the ministerial exception. "I don't follow why" such a claim "would not fall under the same ban on keeping disputes in-house?" said Ginsburg.

From Lyle Denniston at SCOTUSblog:

...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...

More after the jump -->

From the L A Times:

...Chief Justice John G. Roberts Jr. pressed Leondra Kruger, an assistant solicitor general, to say whether the Constitution calls for special protection for religious institutions. She replied there was no "categorical" protection for churches or church schools.

"That’s extraordinary," said Justice Antonin Scalia. “So who you pick to teach religion is subject to state control?"

Justice Elena Kagan said she agreed it was "amazing" the administration’s lawyer suggested that the 1st Amendment did not give church schools significant protection from lawsuits.

Kruger said she believed churches should win cases involving ministers but that the law should protect employees from being punished for filing a civil claim. "It's a balancing of interests," she said. In this case, she said, the teacher was fired simply for saying she was going to file a complaint because she might lose her job over frequent absences due to her narcolepsy condition.

At one point, Justice Sonia Sotomayor said she agreed on the need to protect those who file complaints. She cited cases of church employees who filed complaints about the sexual abuse of children. "Doesn't society have a right to say that certain conduct is unacceptable?" she said...