Hosanna-Tabor Oral Argument Transcript

The transcript from the Supreme Court's oral argument today in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is available on the Supreme Court's website, and it looks to have been a spirited discussion.

The school urged that the Court adopt a categorical approach to the ministerial exception, esentially that courts lacked jurisdiction over any kinds of suits brought by ministers against religious institutions that related to their work. Ministers would be anyone who held an ecclesiastical position or who had any responsibility to teach church doctrine. A court would be able to look in a cursory manner to be sure that the label of minister was not a sham, but not do the more in-depth functional analysis that the Sixth Circuit did in this case to conclude that Ms. Perich was not a ministerial employee.

Several members of the court expressed concern with this categorical approach. It didn't seem wholly consistent with Employment Div'n v. Smith, in which the Court held that rules of general applicability that infringed upon religious practices would be constitutional so long as those rules were rationally related to a legitimate governmental interest. Moreover, it seemed too deferential to religious organizations' power to limit whistleblowing by employees. At the same time, it did not relieve the courts of having to decide who was a ministerial employee.

The federal government urged the Court to adopt a balancing approach, looking at the interest the government had in providing for the underlying cause of action to decide whether a ministerial exception would apply. Government interests in health, safety, and whistleblowing or the rule of law would be sufficiently great to override invocation of the exception in most circumstances, but interests in eradicating discrimination would not. Several members of the Court had concerns about this approach, as well. For some, this approach did not recognize the special interests in religion embodied in the First Amendment's Free Exercise and Establishment Clauses. Moreover in the answers to the questions, it seemed that this approach might privilege the doctrines of some religions, but not others.

Ms. Perich's attorney urged the Court to adopt the functional approach used by the Sixth Circuit as the only way to give effect to the decision in Smith and to recognize the important government interest involved in prohibiting retaliation for exercising legal rights. During his argument, the Court seemed most concerned in how to avoid looking into church doctrine in deciding the issue.

I won't speculate on how this will come out, but I do have some observations about this case. In the lower courts, the school did not argue that it terminated Perich because she failed to pursue internal dispute resolution channels; pursuit of those channels may have been required by church doctrine, and would have provided a reason based in religion for her discharge. The Sixth Circuit found that to be a crucial distinction. Before the Supreme Court, it appears that the school argued precisely that, also seeming to say that the Court could not examine that assertion to determine whether it was a pretext because Perich was a ministerial employee. The distinction between enforcement of the underlying antidiscrimination substantive law on the one hand and protection of the process through forbidding retaliation on the other seems highly important to at least some members of the court (*cough Kennedy cough*) even if not for others (*cough Scalia cough*).

More significant facts here that were not thoroughly hashed out in the argument: the school did not contest that the reason for firing Perich was her statement that she would sue after the school refused to reinstate her when she was no longer unable to perform her duties because of her disability; Perich taught without being "called" first, and only later became "called" without her duties changing; the church seemed to expand its argument before the Court to say that other teachers who were not "called" but who taught a religion class would also be ministerial employees; and Perich did not seek to be reinstated to teaching or to the "call," but sought instead damages for her discharge from teaching.

To see if these distinctions and facts make any difference in the rules the Court adopts, we'll have to stay tuned.

MM