Bench Memos

DOJ’s “Amazing” Position in Hosanna-Tabor

At oral argument yesterday in the Hosanna-Tabor case, even Justice Kagan was taken aback by the Obama administration’s denigration of the religious-liberty rights at stake. From the New York Times account of the argument:

There was widespread agreement, for instance, that the federal government’s proposed approach, which gives limited weight to the First Amendment’s religion clauses in disputes between religious groups and their employees, is too narrow.

Leondra R. Kruger, a lawyer for the government, said the court’s analysis should be essentially the same whether the employer accused of discrimination was a labor union or a church.

“That is extraordinary,” Justice Antonin Scalia responded. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

Justice Elena Kagan agreed. “I, too, find that amazing,” she said.