Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

Both the priest’s and the nun’s lawsuits depend on whether they were fired for discriminatory or nondiscriminatory reasons. As Judge Posner has explained, “the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer’s action rather than being a pretext for a decision based on some other, undisclosed ground. … If it is the true ground and not a pretext, the case is over.”

A similar distinction between what is true and what the individual believes to be true is also a crucial component of First Amendment analysis. Under a long line of Supreme Court cases beginning with Ballard v. United States, courts and juries are free to decide whether an individual’s religious beliefs are sincerely held but not whether they are true. Soldiers are routinely subjected to court analysis of whether their religious beliefs are sincerely held before they receive conscientious objector status. Unemployment compensation benefits may be withheld or granted based on whether an applicant’s religion is sincerely held. Prisoners’ religious beliefs are regularly subjected to sincerity review when they request accommodations of their religious practices. Plaintiffs must hold a sincere religious belief in order to win a religious discrimination lawsuit under Title VII. Legislators are usually subjected to a court determination whether they acted with a secular purpose; the Establishment Clause invalidates their legislation if they acted with a religious purpose or a sham secular purpose.

In the employment discrimination context, it should be appropriate for courts to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge, i.e., whether the priest was fired in retaliation and the nun denied tenure on the basis of gender. Courts should be able to determine the sincerity of the employer’s motivation without intruding upon religious truth. Was it disabilities or religion that motivated the firing? Race or religion? Gender or religion? Age or religion? And so forth.

Justice Antonin Scalia parsed pretexts when he asked the church’s lawyer if a sham is different from a pretext. Scalia asked if the church’s position

would allow the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?”

The church’s lawyer, Douglas Laycock, said yes to probing the church’s sham assertion that this person is a minister and no to deciding whether the firing was a pretext.

But the question of who is a minister is much more theological than determining whether a firing was pretextual.  Perhaps it is the justifications for the ministerial exception that are a sham?


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3 Responses

  1. Marc DeGirolami says:

    Well, I think your correction of Asst. SG Kruger’s statements at oral argument at least would make sense of the government’s position, as well as render it consistent with its position in its brief. As for the last statement about whether deciding who is a minister is “much more theological” than determining whether a firing is pretextual, I’m afraid I don’t understand your view. I can certainly understand that the government would have a strong interest in vindicating its civic norms and puncturing a pretextual claim. And I even agree that the government’s interests are not diminished simply because we are dealing with a religious institution. But in my view, they are complicated by the fact that the entity on the other side of the v. is a religious institution, and exactly because deciding whether the pretext is a sham or not will require the court to inquire after the nature and quality of the religious institution’s commitment to the asserted (and, for the plaintiff, allegedly pretextual) reason. That may well demand considerable entanglement on the part of the government in theological questions. Whatever may be said of that inquiry and the difficulty of making it, it seems to me to be a legitimate concern, and certainly not a sham.

  2. Rick Garnett says:

    No one thinks, it seems to me, that as a general matter the fact that the government has an “interest” in vindicating a particular norm or value means that it can do all things that, in the government’s view, tend to vindicate that norm or value. There are, in some cases, competing values that weigh against a particular vindication effort and, in some other cases, there are some particular vindication efforts that lie outside the power of constitutional, limited governments (like ours). The notion that Ms. Kruger should have said “yes” — that is, that a secular government could take on the task of deciding whether the reasons why, say, a Catholic bishop removed a Catholic priest from a particular pastoral assignment were “pretextual” — is striking. Let’s assume it was. What then? Do you really think, Leslie, that the government could require the Bishop to give the priest his initial assignment back, or pay the priest money-damages?

  3. Joe says:

    Prof. Garnett, let’s say the reason the bishop removed the priest was because he reported a fellow priest who repeatedly stole from his petitioners? The church, bearing false witness (that is what “pretextual” amounts to), claimed it was based on church principles that the matter should be dealt with in-house. In fact, it was to avoid civil damages that would occur if the matter was known publicly.

    What if the priest or minister reported abuse concerning a third party? If in the process, s/he lost a job (needed to care for his or her family), based on fraudulent grounds or even honest ones that put the needs of the church as a whole over the individual petitioner (based on honest faith grounds), would it be “striking” that in some cases the church should be required to at least provide back pay?

    Or, should someone lose the money needed to care for their family because they reported to civil authorities that a church refused to be honest about what they were doing (pretext) or were honest and in the process threatened the well being of a third party (or in certain cases, the specific person involved)? Where is the line?

    After all, the fact someone has a right, even a natural right, doesn’t mean it is absolute.