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Craig Parshall, General Counsel

 

Beware the Legal Riptide

October 12, 2011

When the Supreme Court heard oral arguments on October 5th in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, one particular tenet of religious freedom was clearly front and center – namely, the constitutional “autonomy” of religious groups to apply their doctrines to their relationship with employees. The case involves the so-called “ministerial exception,” a court-made rule that exempts the positions of “minister” and similar religious leadership roles from interference by secular courts. What quickly grabbed focus, however, was a stunning series of statements by the lawyer for the Obama Administration, Leondra Kruger, who slashed away at basic rights of religious freedom in her arguments. Kruger, an Assistant Solicitor General in her mid-30’s, announced – quite matter-of-factly – that religious groups have no special rights of association any greater or different than, say, labor unions. To which Justice Scalia exclaimed: “That's extraordinary. That is extraordinary. We are talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application?” Then there were tough exchanges, evoking near disbelief even from liberal Justice Kagan.

“Do you believe, Miss Kruger, that a church has a right that's grounded in the Free Exercise Clause and-or the Establishment Clause to institutional autonomy with respect to its employees?” asked Justice Kagan. Ms. Kruger replied: “We don't see that line of church autonomy principles in the religion clause jurisprudence as such.” Said Justice Kagan: “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.”

Legal principles, like shifting sands, often change with the tides, little noticed when our attention is directed elsewhere. Ten years ago I argued a similar case (Montrose Christian School v. Walsh) before the Maryland Court of Appeals, which also involved the First Amendment rights of religious organizations to govern their own employee relations. We were blessed with a victory, defeating the lawsuit by the ACLU, in a unanimous decision. The rule established in that case was followed again in another religious liberty case in 2003, but by 2007, the high court in Maryland had slowly begun to back away from the constitutional principles established six years before.

Some principles are too important to submit to the shifting sand of political correctness, or to novel constitutional theories that elevate “the public welfare” (attorney Kruger’s phrase) over the rights of religious freedom. We cannot afford to miss these alarming clues. There is a new generation of lawyers – some of them now in the office of the United States Solicitor General – who apparently have either forgotten, or have never learned, which liberties our Founders once pledged their lives, their fortunes and their sacred honor to protect.