I see that two religion cases I’ve been watching are both on for the Supreme Court’s case conference tomorrow.
Cooke v. Tubra, 10-559, which I’ve previously written about here, presents the question whether the First Amendment bars a pastor’s defamation claim against the church that employed him when the claim is based entirely on statements made by church officials within the church explaining to its members why the church disciplined and terminated the pastor. The case appears to implicate a longstanding split about how much courts constitutionally may involve themselves in employment disputes involving clergy.
In addition, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 10-553, involves whether the judicially recognized “ministerial exception” to the Americans with Disabilities Act, bars review of the termination of a parochial school teacher who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. In addition to the express statutory defenses for religious organizations created by the ADA, courts of appeals have recognized a constitutionally rooted “ministerial exception” barring adjudication of certain claims regarding the employment relationship between religious institutions and ministers and other ministerial employees. The Sixth Circuit held that the fired teacher’s “primary duties” were secular and not ministerial and so the ministerial exception did not apply.
The petition was filed by UVA Professor Doug Laycock, a respected expert on religion issues, and the case has attracted quite a bit of amicus attention—three amicus briefs have been filed. The government’s opp acknowledges “some variations in courts’ articulations of the governing test,” but maintains that “there is no conflict that warrants this Court’s review.” A harder hurdle to overcome will be the government’s contention that petitioner “did not adequately preserve her challenge to the validity of the ‘primary duties’ test”—it doesn’t take much to scare the Court off a case if there are vehicle problems or if the claim may not have been properly preserved.