Oral Argument in the Hosanna-Tabor Religious Freedom Case

Yesterday, the Supreme Court held oral arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a key religious freedom case that Eugene Volokh blogged about here. SCOTUSblog has a round-up of coverage of the argument. I found this exchange particularly telling, as the federal government did itself no favors by taking the extreme position that the Free Exercise Clause of the First Amendment isn’t even implicated when the state uses antidiscrimination law to challenge the firing of church employees – even if the latter are ministers or have religious duties:

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.”

Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.

“That’s extraordinary. That is extraordinary,” Justice Antonin Scalia declared. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

We don’t think that the job duties of a particular religious employee are relevant to the inquiry,” she said.

Even former Obama Solicitor General Elena Kagan was “amazed” by the Administration’s position. Obviously, however, the justices could potentially rule in favor of the EEOC on narrower grounds, though I am cautiously optimistic that they won’t.

Since this issue is at the outer edge of my range of expertise, I think I will leave the real heavy lifting on this case to the law and religion experts, lest I violate my own rules about choosing blogging topics. But I did want to highlight this part of the oral argument for interested readers.

FULL DISCLOSURE: I participated in a moot session for University of Virginia Law professor Doug Laycock, who represented the Lutheran Church in this case. I thought he did a great job at both the moot and the actual oral argument itself.

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