Kruger also said the ministerial exception to discrimination laws was not simply a part of the First Amendment's guarantee of the “free exercise of religion.”
Justice Scalia then pressed Kruger on the difference between ordinary “associations” – subject to a range of anti-discrimination laws – and religious ones.
“There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization,” said Justice Scalia, “but there, black on white in the text of the Constitution are special protections for religion. And you say that makes no difference?”
Kruger's response included her explanation of what the government considers “the core of the ministerial exception as it was originally conceived … which is that there are certain relationships within a religious community that are so fundamental, so private and ecclesiastical in nature, that it will take an extraordinarily compelling governmental interest to (allow) just interference.”
But Justice Breyer pushed the federal government's attorney to say how far she believed the protection extended.
“Suppose you have a religion and the central tenet is: 'You have a problem with what we do, go to the synod; don't go to court,'” he asked. “So would that not be protected by the First Amendment?”
“It's not protected,” Kruger responded.
The government attorney went on to attack Hosanna-Tabor's use of the ministerial exception, which she said would mean “ that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits” to federal regulators.
“We think that that is a rule that is insufficiently attentive to the relative public and private interests at stake,” she said, citing “interests that this Court has repeatedly recognized are important in determining freedom of association claims.”
It was then that Breyer sprung the question of whether a woman might sue over her exclusion from the Catholic priesthood, on the same basis that Perich was suing over a religiously-grounded termination.
Kruger said the two situations were different – not categorically, but rather because “the private and public interests are very different in the two scenarios.”
(Story continues below)
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“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,” she said.
But, she said, the government does have a “compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct,” even if the church in question would prohibit its members from doing so on religious grounds.
Justice Samuel Alito pointed out that this distinction between the Lutherans' lawsuit prohibition on the one hand, and the Catholic Church's male priesthood on the other, seemed arbitrary.
Kruger's clearest articulation of the Obama administration's position on religious freedom came in response to Justice Kagan's question as to whether she was “willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims.”
The government's lawyer responded that “substantive discrimination” claims, such as those alleging sex discrimination, could also be legitimate grounds for a lawsuit against some religious institutions.
She said the government's interest in regulating Hosanna-Tabor's hiring and firing “extends … beyond the fact that this is a retaliation, to the fact that this is not a church operating internally to promulgate and express religious belief.”