California supreme court justice Leondra Kruger is widely considered to be among the leading contenders to fill Justice Breyer’s forthcoming vacancy. But a brief and oral argument from a decade ago might damage her prospects.
As an assistant to the Solicitor General, Kruger argued on behalf of the Obama administration in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The brief that she and other Obama administration lawyers submitted took a surprisingly aggressive stance against the very existence of a general “ministerial exception” to employment-discrimination laws. According to her position, religious organizations are limited to the right to freedom of association that labor unions and social clubs enjoy.
Kruger maintained that position at oral argument, to the amazement of even Justice Kagan:
CHIEF JUSTICE ROBERTS: In other words, is there a ministerial exception distinct from the right of association under the First Amendment?
KRUGER: We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses.
CHIEF JUSTICE ROBERTS: Is there anything special about the fact that the people involved in this case are part of a religious organization?
KRUGER: We think that the — the analysis is one that the Court has — has elaborated in other cases involving similar claims to autonomy, noninterference –
CHIEF JUSTICE ROBERTS: Is that a “no”? You say it’s similar to other cases. Expressive associations — a group of people who are interested in labor rights have expressive associations. Is the issue we are talking about here in the view of the United States any different than any other group of people who get together for an expressive right?
KRUGER: We think the basic contours of the inquiry are not different. We think how the inquiry plays out in particular cases may be –
JUSTICE SCALIA: That’s extraordinary…. We’re talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application to –
KRUGER: The contours — but the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here. And for this reason, we don’t think that the job duties of a particular religious employee in an organization are relevant to the inquiry….
JUSTICE KAGAN: So, this is to go back to Justice Scalia’s question, because I too find that amazing, that you think that the Free — neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.
In its unanimous ruling, the Supreme Court held that the Establishment Clause and the Free Exercise Clause bar ministers from invoking the employment-discrimination laws against the religious organizations that employ them. Chief Justice Roberts’s opinion on behalf of the entire Court affirms that the ministerial exception is firmly rooted in the First Amendment’s Religion Clauses, including the Court’s decisions establishing that “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” The Obama administration’s position, the Chief explains,
is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.
To be sure, Kruger might contend that she was simply representing the position of her client. But it would be entirely proper for the White House and, if she is nominated, for senators to probe whether she in fact helped form the government’s “amazing” position against religious liberty.