The position surprised several justices, including Justice Kagan, the Obama administration’s former solicitor general, who said she found the comment “amazing.” After the hearing, one representative of a religious association called the government’s position a “full frontal assault on religious liberty.”
Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything “special about the fact that the people involved in this case are part of a religious organization.”
Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.
“That’s extraordinary. That is extraordinary,” Justice Antonin Scalia declared. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”
“We don’t think that the job duties of a particular religious employee are relevant to the inquiry,” she said.
After the argument, Douglas Laycock, a University of Virginia Law School professor who presented the case for the Lutheran church, said he was “encouraged” by the session. He said the justices were “skeptical” of the government’s position.