Bench Memos

Still More on: Obama DOJ Picks a Fight Against Religious Freedom

Pardon another follow-up: Badly confused Adam Serwer somehow continues to maintain that I am trying to “disqualify” the two DOJ lawyers with evident ideological commitments against religious liberty from working on the Hosanna-Tabor case. Indeed, he contends that I am proposing a “standard [that, if] applied broadly, could be used to disqualify just about anyone.” He has utterly misread my posts.

Let me try again to dispel Serwer’s confusion:

1. My initial post on Hosanna-Tabor built to this concluding point:

DOJ’s decision to pick a fight with the religious Left on the existence of the ministerial exception (rather than simply arguing that the scope of the ministerial exception doesn’t extend to the employee at issue) stands in striking contrast to its shameless pandering to gay and lesbian groups on Defense of Marriage Act and Don’t Ask, Don’t Tell litigation. I guess that we can tell who has real clout with the Obama administration and whom it instead opportunistically exploits for political cover.

In my second post, I presented evidence that readers had passed along about the ideological commitments of two of the DOJ lawyers and concluded with this tentative observation (which I made even more tentative in an appended footnote):

Thus, insofar as personnel is policy,* it may well be that the Obama DOJ’s hostility to the ministerial exemption in the Hosanna-Tabor case is part and parcel of a broader ideological agenda that would have gay causes trump religious liberty.

For those who still didn’t get it, I made clear at the outset of my post last Friday that I had simply “rais[ed] the possibility that the evident ideological commitments of two lawyers on the DOJ brief in the pending Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC might help to explain the Obama DOJ’s surprisingly aggressive position against the ministerial exception.”

In other words, the entire point of my posts has been to explore the possible role of political influence—and, in the case of the religious Left, the striking lack of political influence—on DOJ’s position in Hosanna-Tabor. (I have not formed, and have not expressed, a view as to whether DOJ’s position is legally correct; the fact that it is surprisingly aggressive and hostile to religious liberty doesn’t mean that it is legally wrong. Nor would the hypothetical assumption that it is legally right foreclose the possibility that DOJ reached the right result for the wrong reason. See again the question at the end of my last post.)

2. As a strong believer in presidential authority over the executive branch, I believe that DOJ officials, exercising that delegated authority, can assign whomever they want (within the bounds of any valid legal restrictions, of course) to handle any case. As a strong believer in political accountability, I also believe that it’s entirely proper to expose instances in which the ideological commitments of DOJ lawyers may have influenced DOJ’s position. I have not argued that the two DOJ lawyers should be “disqualified,” nor have I purported to set forth a “standard” for attorney disqualification.


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