Assistant to the Solicitor General Leondra R. Kruger finds herself in hot water with Justice Antonin Scalia when she asserts that the case should be considered as any old labor dispute, and without any special solicitude for the religion of the employer. Scalia explodes: “That's extraordinary. That’s extraordinary. We are talking here about the Free Exercise Clause and about the Establishment Clause. … There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization … but here, black on white in the text of the Constitution, are special protections for religion.”
Kruger then loses Alito when she distinguishes relationships within a religious community that “are so fundamental, so private and ecclesiastical in nature” that government might interfere, citing health or safety as important government interests, as opposed to “the general interest in eradicating discrimination in the workplace.” For the remainder of her argument she is quizzed by the justices on the left and the right as to why it is she believes that the Lutheran objection to civil litigation is less compelling than the Catholic objection to female priests. Alito puts it this way: "I can't reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger, and entitled to more respect than the Lutheran doctrine."
Walter Dellinger—a friend and Slate contributor—then has 10 minutes to speak on behalf of Perich. Before he can even finish the words “May it please the court,” Kagan jumps him with a question. After a long silence in which neither Kagan nor Dellinger can figure out who should be talking next, the chief justice finally says, “Justice Kagan.”
Kagan peers down the bench and says, “I feel like I missed something.”
Dellinger tries to explain that under the rule proposed by the church, even though a religious school could constitutionally be prevented from using peyote in its ceremonies, it could fire, without judicial recourse, any employee who reported that use. Asked what his proposed alternative test would be, Dellinger says the ministerial exception should not be offered to those employees who perform "important secular functions."
"That can't be the test!" retorts Roberts. "The pope is a head of state carrying out secular functions. Those are important. So he is not a minister?"
One of the amicus briefs filed on behalf of the church makes the argument that at “any point in time any given religious community is a mere generation away from extinction.” If the last 10 years have taught us anything, it might be that the same can be said of the rule of law. This is a terribly tricky case for anyone who believes that no institution should be granted broad immunity from judicial scrutiny and a doubly tricky case for any person of faith who believes the government shouldn’t pick their leaders. That’s why there are so many amicus briefs in the case: It pits a central American value (that we do not discriminate) against another central American value (that free exercise of religion really means something).
Indeed, if one were to try to offer any prophecies about the outcome of today’s argument, it should be only that Breyer seems to command a majority when he grabs his head and says, toward the end of the morning, “I’m stuck.”