Court justices tussle over ADA ministerial exception

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BOSTON, MA — During heated oral arguments Wednesday in a case involving religious doctrines, government interests and claims of job discrimination, the justices of the U.S. Supreme Court tried to carve out just how much constitutional leeway religious organizations have to fire employees without facing a job bias claim.

The case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, stems from a lawsuit brought by a teacher against a parochial school claiming she was fired in violation of the Americans with Disabilities Act after she took an extended medical leave for narcolepsy.

The school countered that such a suit was barred by the First Amendment-based “ministerial exception” to the ADA. That exception allows religious groups to give employment preferences based on religion.

The district court granted the school summary judgment based on the ministerial exception. But a three-judge panel of the 6th Circuit reversed, holding that the exception did not apply because the teacher’s primary duties at the school were secular, not religious.

The court denied en banc review and the school successfully petitioned the Supreme Court for certiorari.

Ministers, pretext and shams

During oral arguments, Douglas Laycock, a professor at the University of Virginia School of Law in Charlottesville, Va., argued on the school’s behalf that allowing the teacher’s suit would “repudiate” a “bedrock principle” of jurisprudence.

“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,” Laycock said.

Justice Sonia Sotomayor asked whether plaintiffs should be allowed to prove that a claimed ministerial exception is pretextual, lest employees be fired in retaliation for “reporting sexual abuse to the government” or other otherwise protected deeds.

“If we define the ministerial exception in the way you want, we take away the incentive for reporting,” Sotomayor said. “We actually do the opposite of what society needs.”

“If you want to carve out an exception for cases like child abuse where the government’s interest is in protecting the child, not an interest in protecting the minister, [then] we think you could carve out that exception,” Laycock said.

Justice Anthony Kennedy wondered if a lack of a pretext standard made the exception too broad.
“[Y]ou’re asking for an exemption so these issues can’t even be tried,” Kennedy said. “She was fired simply for asking for a hearing.”

“I understand that,” Laycock began, but Justice Antonin Scalia jumped in to help him with his answer.

“I think your point is that it’s none of the business of the government to decide what the substantial interest of the church is,” Scalia said.

Chief Justice John G. Roberts tried to nail down who would be protected by a ministerial exception. “How do we decide who’s covered [and] who is not?” Roberts asked.

“If she’s commissioned as a minister and if that is not a sham, then we think that makes her a minister,” Laycock said, drawing a quick response from Scalia.

“I thought you said we couldn’t try whether it’s a sham,” Scalia said. “Is a sham different from a pretext?”

I certainly meant something different from a pretext,” Laycock said. “A sham is more extreme.”
Elusive standard

Leondra R. Kruger, assistant to the solicitor general, argued on the government’s behalf that “Congress has not unconstitutionally infringed petitioner’s [religious] freedom in this case by making it illegal for it to fire a fourth grade teacher in retaliation for asserting her statutory rights.”

“This Court has recognized [that] church-operated schools sit in a different position with respect to the permissible scope of governmental regulations than churches themselves do,” Kruger said. “Even with respect to their religion classes and their theology classes?” asked Scalia incredulously. “That’s extraordinary!

“The government’s interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes,” Kruger added. “[It] is to tell the school that it may not punish its employees for threatening to report civil wrongs to civil authorities.”

Justice Samuel Alito asked if accepting the government’s position would force courts to litigate which religious beliefs support a ministerial exception through a battle of experts.

“Is that how it would play out?” Alito asked. “How are we going to avoid that?”

“Any inquiry into the validity of a particular religious doctrine is simply irrelevant to the adjudication of the dispute,” Kruger said.

“No, it’s not irrelevant,” Alito said. “I’ve seen 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 [and] whether they apply it across the board. That’s almost always a big part of the case.”

Walter Dellinger, a partner in the Washington office of O’Melveny & Myers, argued on behalf of the teacher that adopting the school’s proffered ministerial exemption application would mean “that religious organizations will win in many cases in which a comparable civic organization would not prevail.”

“I don’t think that it makes sense,” Dellinger said.

“Do Lutheran schools and Catholic parochial schools share public funds the same way public schools do?” asked Scalia.

“No, they don’t,” Dellinger said.

“You betcha they don’t,” Scalia said. “Don’t tell me that fair is fair and you have to [treat them] just like everybody else. That’s not true.”

A ruling from the Court is expected later this term.