Supreme Court Justices Find Government Line in Church-State Case 'Amazing'

Oct. 9, 2011— -- In an important test of the boundaries of the separation of church and state, the US Supreme Court on Wednesday heard arguments in a case examining whether a parochial school teacher may be barred from filing a discrimination lawsuit against her employer when the suit might entangle government in matters of religious faith.

The high court is being asked to decide whether Cheryl Perich and the Equal Employment Opportunity Commission (EEOC) may sue the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., for allegedly violating the Americans with Disabilities Act.

The school argues that such a suit is barred under a First Amendment doctrine that recognizes a "ministerial exception" from such litigation because it would require judges to interfere in the pastoral and religious mission of the school.

Lawyers for the EEOC and for the teacher say Ms. Perich was fired in retaliation for filing a discrimination lawsuit against the school. They say there is no "ministerial exception" that would allow religious organizations to fire with impunity an employee whose job primarily involves teaching secular subjects to her students.

The high court has never before identified the contours of the ministerial exception, although such an exception has been recognized and upheld in the lower courts. It has been found to clearly apply to a pastor, priest, or rabbi, but less clear is whether it applies to other employees involved in religious duties.

The Obama administration, arguing on behalf of the EEOC, urged the court to reject the claims of the Lutheran Church and embrace a line of analysis that would have virtually eliminated the ministerial exception.

Some Justices Shocked

Leondra Kruger, an assistant solicitor general, said the government was basing its argument on a section of the First Amendment that guarantees the freedom of individuals to associate with each other.

Some justices took issue with the position, wondering why the solicitor general's office wasn't analyzing the issue through the First Amendment's religion clauses. The two religion clauses bar the government from establishing a state-favored religion, while prohibiting laws that infringe the free exercise of religion.

The two clauses are widely considered the backbone of religious freedom in the US.

At one point, Justice Elena Kagan asked Ms. Kruger whether she believed that a church has a right grounded in First Amendment religious protections to hire and fire employees without government interference.

Kruger answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.

"We don't see that line of church autonomy principles in the religion clause jurisprudence as such," Kruger replied. "We see it as a question of freedom of association."

The position surprised several justices, including Justice Kagan, the Obama administration's former solicitor general, who said she found the comment "amazing." After the hearing, one representative of a religious association called the government's position a "full frontal assault on religious liberty."

Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything "special about the fact that the people involved in this case are part of a religious organization."