By Adam Liptak (New York Times)
October 5, 2011
At Supreme Court arguments on Wednesday, the justices struggled to find a theory that would strike the right balance between avoiding government interference in the internal affairs of religious groups while protecting employees from discrimination. They often seemed frustrated by the available approaches.
There was widespread agreement, for instance, 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.
Leondra R. Kruger, a lawyer for the government, said the court's analysis should be essentially the same whether the employer accused of discrimination was a labor union or a church.
"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?"
Justice Elena Kagan agreed. "I, too, find that amazing," she said.
The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, who had been a teacher at a Michigan school run by a Lutheran church when she was given a diagnosis of narcolepsy. She said she was fired for pursuing an employment discrimination claim based on her disability.
Ms. Perich taught mostly secular subjects but also taught religion classes and attended chapel with her class.
Douglas Laycock, a lawyer for the church, argued that the court should recognize, as many lower courts have, a "ministerial exception" to employment discrimination laws, one that forbids the government from interfering in the relationship between religious groups and those employees whose duties include religious ones.
He said it would not be hard to define the category of affected employees in most cases. "If you teach the religion class," he said, "you're clearly a minister."
But several justices appeared uncomfortable with the task of deciding who is and is not a minister. Justice Sonia Sotomayor added a worry about the sweep of Mr. Laycock's approach.
"How about a teacher who reports sexual abuse to the government and is fired because of that reporting?" she asked.
Mr. Laycock said there were other ways to ensure that abuses were reported. But, he went on, "a discharge claim by a minister presents the question why she was discharged, and the court should stay out of that."
The Supreme Court has in recent terms been sympathetic to retaliation claims in employment discrimination suits, and Ms. Kruger, the government lawyer, pressed that point, urging the justices to allow Ms. Perich to pursue her claim.
"There is an important distinction to be made between the government's general interest in eradicating discrimination from the workplace and the government's interest in ensuring that individuals are not chilled from coming to civil authorities with reports about civil wrongs," she said.
That distinction also appeared to leave some justices unsatisfied. "It isn't obvious to me that one is more important than the other," said Justice Stephen G. Breyer.
"Then you have to say," he added, "that it's more important to let people go to court to sue about sex discrimination than it is for a woman to get a job. I can't say that one way or the other, so I'm stuck."
Justice Breyer proposed avoiding the First Amendment questions in the case and limiting religious groups to a defense specified in the Americans With Disabilities Act, which says, "A religious organization may require that all applicants and employees conform to the religious tenets of such organization."
Walter Dellinger, one of Ms. Perich's lawyers, said that defense did not apply to retaliation claims.