This is a pretty stunning act by the Obama administration, something that shock both Justices on the right and left of the political spectrum. An extreme regulatory overreach by the Obama Justice Department. From ABC News:
The high court is being asked to decide whether Cheryl Perich and the Equal Employment Opportunity Commission (EEOC) may sue the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., for allegedly violating the Americans with Disabilities Act. . . .
Lawyers for the EEOC and for the teacher say Ms. Perich was fired in retaliation for filing a discrimination lawsuit against the school. They say there is no "ministerial exception" that would allow religious organizations to fire with impunity an employee whose job primarily involves teaching secular subjects to her students. . . .
Leondra Kruger, an assistant solicitor general, said the government was basing its argument on a section of the First Amendment that guarantees the freedom of individuals to associate with each other.
Some justices took issue with the position, wondering why the solicitor general's office wasn't analyzing the issue through the First Amendment's religion clauses. The two religion clauses bar the government from establishing a state-favored religion, while prohibiting laws that infringe the free exercise of religion. . . .
At one point, Justice Elena Kagan asked Ms. Kruger whether she believed that a church has a right grounded in First Amendment religious protections to hire and fire employees without government interference.
Kruger answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.
"We don't see that line of church autonomy principles in the religion clause jurisprudence as such," Kruger replied. "We see it as a question of freedom of association."
The position surprised several justices, including Justice Kagan, the Obama administration's former solicitor general, who said she found the comment "amazing." After the hearing, one representative of a religious association called the government's position a "full frontal assault on religious liberty."
Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything "special about the fact that the people involved in this case are part of a religious organization."
Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.
"That's extraordinary. That is extraordinary," Justice Antonin Scalia declared. "We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?" . . .
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