The high court has never before identified the contours of the ministerial exception, although such an exception has been recognized and upheld in the lower courts. It has been found to clearly apply to a pastor, priest, or rabbi, but less clear is whether it applies to other employees involved in religious duties.
The Obama administration, arguing on behalf of the EEOC, urged the court to reject the claims of the Lutheran Church and embrace a line of analysis that would have virtually eliminated the ministerial exception.
Leondra Kruger, an assistant solicitor general, said the government was basing its argument on a section of the First Amendment that guarantees the freedom of individuals to associate with each other.
Some justices took issue with the position, wondering why the solicitor general’s office wasn’t analyzing the issue through the First Amendment’s religion clauses. The two religion clauses bar the government from establishing a state-favored religion, while prohibiting laws that infringe the free exercise of religion.
The two clauses are widely considered the backbone of religious freedom in the US.
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.”