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Wednesday, October 5, 2011

Transcript of Oral Argument in H-T, and Some Thoughts

For those who may be interested, here is the transcript of the oral argument in H-T.  After the jump, some rapid thoughts and/or questions.

The questioning by the Justices was extremely active.  With respect to the questions asked of the federal respondent, Ms. Leondra R. Kruger, the following jumped out at me:

1.  It seemed like Kruger was trying to draw a distinction between the government's "general" interests in vindicating non-discrimination norms and its specific interest "in ensuring that individuals are not chilled from coming to civil authorities with reports about civil wrongs."  (34)  But when asked whether that meant that there was to be no ME only with respect to retaliation issues, Ms. Kruger said no.

There was also a distinction she was trying to make between the permissibility of the Catholic Church's proscription on female priests and the policies of the petitioner here.  Here's a bit more from page 32:

The government's general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine. But the interests in this case are quite different. The government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.

This strikes me as a strange view.  If the distinction is based on the "general" vindication of anti-discrimination law, that "general" vindication will always find expression in a specific complaint.  A specific woman will sue for being excluded from the priesthood on the basis of discrimination on the basis of sex, just as a specific person who suffered from a disability sued for threatening to go to civil court rather than to follow H-T's internal dispute resolution procedures.  If the distinction is instead that retaliation claims are per se more important than other kinds of discrimination claims, then I don't see why that is.

2.  At one point (37), Justice Kagan asks Kruger whether it is the government's position that there exists a doctrine of "institutional autonomy with respect to its employees" grounded in the religion clauses.  Kruger responds that there is not, and that everything is subsumed into the category of associational freedom.

This may have been just a slip, but that can't be right.  If it is right, it goes considerably further than what the Obama administration brief argues, which is that there is no ministerial exemption doctrine.  If there is no autonomy doctrine, that means that cases like Serbian Orthodox Church and Jones v. Wolf are wrong too, doesn't it?

3.  Tea-leaf reading time.  Just after that, Justice Kagan says this:

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.

Yesterday, at our panel discussion, somebody asked me how I thought the Justices might vote.  I hemmed and hawed...and then guessed.  And with respect to Justice Sotomayor, I guessed that she would vote for some kind of ME, though perhaps with limited scope.  Based on this statement, perhaps Justice Kagan will go in that direction too?

4.  At 37-38, one can see that Justice Scalia believes Employment Div. v. Smith has essentially no bearing at all on this case.  That's going to be a fun thing to watch develop.  Later on, Justice Scalia also seems to say that the Free Exercise Clause applies only to individuals, while the Establishment Clause applies to institutions.  (56)  This may be the way that he works around Smith.

5.  Justice Breyer, throughout, seemed to be emphasizing the possibility of resolving this case by avoiding the constitutional question entirely and focusing in on the issue of whether Perich was told that she was being terminated for religious reasons.  That would limit the inquiry to the ADA.  See especially 40-41 for this discussion, but also some of the questions that he puts to Doug Laycock.

http://mirrorofjustice.blogs.com/mirrorofjustice/2011/10/transcript-of-oral-argument-in-h-t-and-some-thoughts.html

DeGirolami, Marc | Permalink

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Hi Marc -- I have to say that, unlike many, I've never thought Smith was a particularly big problem for the M.E., or worried that Scalia would think that it was. The M.E. has a no-establishment / separation dimension to it, for one thing; for another, Smith notes and does not question the "no religous decisions" cases; and, finally, it seems to me that the worries about "every man a law unto himself" are not really implicated in the M.E. context, which is relatively well cabined by the fact that it is only in play in a limited universe of cases.

For me, the confusing part of the argument has to do with Justice Kennedy's seeming suggestion that the reasons for the M.E. somehow dissipate when we are talking about retaliation claims. I don't see why that should matter.

Anyway . . . it was certainly gratifying to see that none of the Justices seemed to agree with the government's extremist "Dale is enough" view.

Posted by: Rick Garnett | Oct 5, 2011 4:24:09 PM

Rick, thanks. I take it from your comment that you would not agree with a decision which limited the Free Exercise Clause to individual claims, while relying exclusively on the EC for institutional claims, to include the ME? It seemed to me that Justice Scalia was suggesting something like this division at the end of the argument, though of course, it's impossible to know this. For what it's worth, for me, while I agree with you that there is an establishmentarian component to the ME, the most fundamental, historically grounded reasons for the ME have to do with institutional free exercise.

On Justice Kennedy's statement, it might be that this is what the federal respondent was trying to attach herself to, since she spent a lot of her time emphasizing the special quality of retaliation claims. But I agree that I don't understand that.

Posted by: Marc DeGirolami | Oct 5, 2011 4:34:16 PM

It seems to me that all institutionalist claims, not just ME, can be grounded in the Establishment Clause, even if they look like institutional Free Exercise claims at first blush. Establishment occurs not just when the Govt tries to tell all citizens to follow or avoid certain doctrines, but when it steps into any internal church issue. Suppose the Gov says that you can be Jewish or Christian or Muslim or atheist whatever you like, but we think this denominational splintering is bad for society, so we're going to pick the best approach within each group. All Jews shall be Orthodox; all Christians shall be Lutheran; all Muslims shall be Sunni. That looks like a Free Exercise violation to some, because you can't exercise your Reformed Jewish or Catholic or Shiite faith. But it's also establishing churches as acceptable or not. It's also getting "internal" in the sense that it's getting inside Christianity and picking sides. It'd be the same at lower sub-levels, e.g., if the Govt tried to mediate between different Catholic views, set policy, or pick bishops or priests or Catholic school principals or teachers etc. It all flows from instrusion into self-governance, even if some of the isolated acts look like interference with exercise. Thus, all institutional Free Exercise claims are ultimately Establishment claims.

That's not so for individual Free Exercise claims, because the mediating institution is not necessarily present, and the individual simply wants to fight the Govt about something the Govt wants him to do or not do. Although, even there, some such claims do threaten the Establishment notion, if the Govt tries to determine what a Church's "true policy" is. For example, in testing the sincerity of a conscientious objector, members of known "peace churches" such as Quakers have a near-automatic free pass, while a pacifist Catholic might be grilled on whether his Church is more military-tolerant, thus and thus whether his pacifism is merely "personal opinion" and not religiously inspired, etc. That's an oversimplification, but it does seem to me that the sincerity angle, and the characterization of the objection as truly religious, does trigger inquiry into the "true" doctrine of a Church.

Posted by: joe reader | Oct 6, 2011 12:55:51 PM

Re: point 2 of the post (subsuming freedom of the church into institutional autonomy more generally), I agree that Kruger's statement early on cannot be taken at face value. Later in the questioning, Kruger acknowledged a religion-specific limitation about how litigation about church employment disputes can proceed. In response to questioning about the litigation of pretext claims, Kruger stated "If the only way that the Plaintiff has to show that that may not have been the employer's real reason was a subjective judgment about the quality of canon law scholarship, then judgment has to be entered for the employer, because the plaintiff has no viable way, consistent with the Establishment Clause, of demonstrating that wasn't the employer's real reason." Although the Supreme Court has been deferential in assessing the stated purpose of associations in acting when judging analogous claims in the associational freedom context (see Dale), the reference to the Establishment Clause indicates (appropriately) that something more is at play in the religious employer context.

Posted by: Kevin C. Walsh | Oct 6, 2011 1:24:25 PM

Kevin, thanks for pointing this out. I now don't think I understand the government's view. I had thought that the government in its brief had claimed that there was no ministerial exemption. So if you wanted to defend a discrimination suit through the ADA's statutory exception or through BFOQ or through an associational freedom defense, that was fine. But according to the brief, there is no First Amendment right rooted in the religion clauses that extends beyond these other protections.

That makes the reference to the Establishment Clause in the portion of the transcript you quote mysterious to me. If the religious employer is defending a claim of pretext on the basis that it is discriminating for a religious reason (e.g., that the quality of the employee's canon law scholarship is poor) then the employer would not need the EC to fire the employee -- it could use the statutory exception.

On the other hand, if the claim in the transcript that you quote is that when a plaintiff asks a court to get involved in any kind of religious issue in determining the basis for the termination (because it would be "the only way" to resolve the dipsute), an EC interest is activated, then it seems like the government is arguing for the existence of an ME (but that must be unlikely, as it would run directly contrary to the claims in its brief).

On the third hand, if the portion of the transcript that I saw up above is right (and I agree with you that I do not think it can be what was intended), then in the government's view there is not only no ME but also no church autonomy doctrine at all when it comes to church employees (though there might still be an autonomy doctrine when it came to church property).

I'm probably just not understanding a piece of this.

Posted by: Marc DeGirolami | Oct 6, 2011 2:15:56 PM