For those who may be interested, here is the transcript of the oral argument in H-T. After the jump, some thoughts and/or questions.
The questioning by the Justices was extremely active. With respect to the questions asked of the federal respondent, Ms. Leondra R. Kruger, the following jumped out at me:
1. It seemed like Kruger was trying to draw a distinction between the government’s “general” interests in vindicating non-discrimination norms and its specific interest “in ensuring that individuals are not chilled from coming to civil authorities with reports about civil wrongs.” (34) But when asked whether that meant that there was to be no ME only with respect to retaliation issues, Ms. Kruger said no.
There was also a distinction she was trying to make between the permissibility of the Catholic Church’s proscription on female priests and the policies of the petitioner here. Here’s a bit more from page 32:
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. But the interests in this case are quite different. The government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.
This strikes me as a strange view. If the distinction is based on the “general” vindication of anti-discrimination law, that “general” vindication will always find expression in a specific complaint. A specific woman will sue for being excluded from the priesthood on the basis of discrimination on the basis of sex, just as a specific person who suffered from a disability sued for threatening to go to civil court rather than to follow H-T’s internal dispute resolution procedures. If the distinction is instead that retaliation claims are per se more important than other kinds of discrimination claims, then I don’t see why that is.
2. At one point (37), Justice Kagan asks Kruger whether it is the government’s position that there exists a doctrine of “institutional autonomy with respect to its employees” grounded in the religion clauses. Kruger responds that there is not, and that everything is subsumed into the category of associational freedom.
This may have been just a slip, but that can’t be right. If it is right, it goes considerably further than what the Obama administration brief argues, which is that there is no ministerial exemption doctrine. If there is no autonomy doctrine, that means that cases like Serbian Orthodox Church and Jones v. Wolf are wrong too, doesn’t it?
3. Tea-leaf reading time. Just after that, Justice Kagan says this:
So this is to go back to Justice Scalia’s question, because I too find that amazing, that you think that the Free — neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.
Yesterday, at our panel discussion, somebody asked me how I thought the Justices might vote. I hemmed and hawed…and then guessed. And with respect to Justice Sotomayor, I guessed that she would vote for some kind of ME, though perhaps with limited scope. Based on this statement, perhaps Justice Kagan will go in that direction too?
4. At 37-38, one can see that Justice Scalia believes Employment Div. v. Smith has essentially no bearing at all on this case. That’s going to be a fun thing to watch develop. Later on, Justice Scalia also seems to say that the Free Exercise Clause applies only to individuals, while the Establishment Clause applies to institutions. (56) This may be the way that he works around Smith.
5. Justice Breyer, throughout, seemed to be emphasizing the possibility of resolving this case by avoiding the constitutional question entirely and focusing in on the issue of whether Perich was told that she was being terminated for religious reasons. That would limit the inquiry to the ADA. See especially 40-41 for this discussion, but also some of the questions that he puts to Doug Laycock.