OU at High Court today for Religious Liberty

Posted on October 5, 2011 In Blog

The U.S. Supreme Court’s new term got underway this first week in October and on the docket for today is a crucial case for religious liberty.

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The fine folks at SCOTUSBlog have all the info here.

In short, the case before the justices deals with this: Courts have generally believed that federal employment discrimination statutes do not apply to church employees performing religious functions.  The question is whether this ministerial exception applies not simply to religious leaders, but also to teachers at a religious elementary school.

The OU joined with other religious entities to file a legal brief in defense of the ministerial exception – you can read it here.

(Of interest within the Jewish community, all of the major Jewish organizations, which often split sides over cases in the Supreme Court, have lined up together in support of the petitioners – the religious school – and in defense of the religious liberty principle….with one notable exception; the ADL has filed a brief in support of the EEOC.)

The religious school was ably represented by the eminent Professor Doug Laycock and the individual teacher at the center of the dispute was also ably represented by former Solicitor General Walter Dellinger.

Each had tough questions and appropriate exchanges with the Justices – which in total indicated, I think, general sympathy for “our side’s” position, with a measure of counterbalancing concerns.

But it was the argument presented on behalf of the EEOC – by the Solicitor General’s Office which was deeply troubling – to the point of jaw-dropping.

The SG staked out an extreme position not only questioning the validity of the ministerial exception altogether, but even asserting – to the vocal amazement of Justices Scalia and Kagan (!) – that the First Amendment’s religion clauses do not offer any special protection or consideration to religious, as opposed to secular, institutions in this context.  Indeed, as Prof. McConnell lays out in today’s WSJ, this is terribly dangerous, not to mention at odds with precedent.

The case is now in the hands of the Justices.