Supreme Court to Decide Issue of Women Priests?

That’s what could happen on a legal theory articulated by the Obama administration—and the justices of the U.S. Supreme Court were quick to pick up on the fact.

The case at hand involves a Lutheran minister, but the principles potentially apply to the issue of women’s ordination in the Catholic Church.

Specifically, the case involves a woman who served in a teaching capacity that her Lutheran body considers ministerial. Problems arose with her position because she suffers from narcolepsy, and she threatened to file a complaint with the state under the Americans with Disabilities Act. She was then let go because the Lutheran body she works for holds that an in-house dispute resolution process should have been used rather than involving the state.

They apparently have a fairly strict interpretation of 1 Corinthians 6:1-8, where St. Paul warns against lawsuits among believers, saying that such disputes should be settled within the Christian community rather than using the secular courts because of the scandal this creates. The Catholic Church recognizes the principles used in this passage but would apply them within a larger, natural law framework that would not result in an absolute prohibition. The scandal caused by Christians suing each other in secular court in a country like America today is not nearly the same as it would have been in St. Paul’s day, when Christians were a tiny minority. Operating in a “Scripture only” manner that does not have the same natural law heritage, however, it’s easy to see how a Lutheran group might take St. Paul as being more absolute than he is.

Whatever one may think of the group’s view regarding dispute resolution and going to court, it seems like this is precisely the kind of thing that the First Amendment would protect. The federal government should not be in the business of telling churches who they must or must not have as ministers. Such an intervention would violate the free exercise of religion.


Not according to the Obama administration.


“The (Obama) administration has taken a very extreme position,” said Becket Fund Legal Counsel Luke Goodrich, who is leading the religious freedom group’s work on the Hosanna-Tabor case. He said the administration was “attacking the very existence of the ministerial exception,” such that “even the pastor of a church could sue the church for employment discrimination.”

“There’s a lot of uncertainty surrounding the outcome of this case,” Goodrich told CNA/EWTN News Oct. 3, “because the Supreme Court has not decided a case involving the autonomy of religious groups in many years.”

The Justice Department holds that the Lutherans cannot fire Perich for complaining to the government even if church teaching forbids it.

And it was this question – when might the government’s interest in preventing discrimination trump a religious group’s principles? – that prompted the justices to ask the attorney for the government’s Equal Employment Opportunity Commission during Oct. 5 oral arguments why female priests could not be mandated by the government on similar grounds.

The justices were quick during oral arguments to apply the principles the Obama administration was proposing to the Catholic Church’s teaching that only baptized men can be validly ordained to the priesthood:

“The belief of the Catholic Church that priests should be male only – you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic?” asked Chief Justice John Roberts, questioning Leodra Kruger, the U.S. solicitor general’s assistant who represented the Equal Opportunity Employment Commission.

“Yes,” Kruger responded. “But that’s because the balance of relative public and private interests is different in each case.”

That right there should send chills up your spine. Whenever a public official starts talking about the relative balance of public and private “interests” the public (i.e., government) “interests” tend to win out in the end. It may take a generation, but once the precedent is set that it’s a question of how government vs. non-government “interests” get balanced, the government finds a way—based on changing mores and social standards or whatever—to impose its own interests as the expense of non-government entities.

“Do you believe, Miss Kruger, that a church has a right that’s grounded in the Free Exercise Clause and/or the Establishment Clause to institutional autonomy with respect to its employees?” asked Justice Elena Kagan.

“We don’t see that line of church autonomy principles in the religion clause jurisprudence as such,” the federal government’s attorney replied.

Kruger also said the ministerial exception to discrimination laws was not simply a part of the First Amendment’s guarantee of the “free exercise of religion.”

So according to the Obama administration a church does not have a First Amendment right to determine who its ministers will be.

Justice Scalia then pressed Kruger on the difference between ordinary “associations” – subject to a range of anti-discrimination laws – and religious ones.

“There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization,” said Justice Scalia, “but there, black on white in the text of the Constitution are special protections for religion. And you say that makes no difference?”

Kruger’s response included her explanation of what the government considers “the core of the ministerial exception as it was originally conceived … which is that there are certain relationships within a religious community that are so fundamental, so private and ecclesiastical in nature, that it will take an extraordinarily compelling governmental interest to (allow) just interference.”

Go, Antonin! This is the very reason we have freedom of religion protection in the First Amendment to begin with—to draw a bright line that the government must not cross.

But Justice Breyer pushed the federal government’s attorney to say how far she believed the protection extended.

“Suppose you have a religion and the central tenet is: ‘You have a problem with what we do, go to the synod; don’t go to court,’” he asked. “So would that not be protected by the First Amendment?”

“It’s not protected,” Kruger responded.

So, according to the Obama administration, the Obama administration gets to decide on the applicability of 1 Corinthians 6:1-8 to an employment dispute?

The government attorney went on to attack Hosanna-Tabor’s use of the ministerial exception, which she said would mean “ that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits” to federal regulators.

And this would be bad . . . how? Note in particular that she objected to the idea that “the hiring and firing decisions with respect to . . . priests is categorically off limits.” So the Obama administration thinks the government’s interference with the Church’s hiring and firing of priests should not be off limits?

“We think that that is a rule that is insufficiently attentive to the relative public and private interests at stake,” she said, citing “interests that this Court has repeatedly recognized are important in determining freedom of association claims.”

It was then that Breyer sprung the question of whether a woman might sue over her exclusion from the Catholic priesthood, on the same basis that Perich was suing over a religiously-grounded termination.

Kruger said the two situations were different – not categorically, but rather because “the private and public interests are very different in the two scenarios.”

“The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine,” she said.

But, she said, the government does have a “compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct,” even if the church in question would prohibit its members from doing so on religious grounds.

I’m sorry. My spider sense is telling me that if the principle is established that these situations are not “categorically different” then it’s only a matter of time before the government, trying to pander to feminist constituencies, will decide that “the government’s general interest in eradicating discrimination in the workplace” is “sufficient to justify changing the way that the Catholic Church chooses its priests.”

Justice Samuel Alito pointed out that this distinction between the Lutherans’ lawsuit prohibition on the one hand, and the Catholic Church’s male priesthood on the other, seemed arbitrary.

To quote President Obama, “Darn, tootin’!”

Kruger’s clearest articulation of the Obama administration’s position on religious freedom came in response to Justice Kagan’s question as to whether she was “willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims.”

The government’s lawyer responded that “substantive discrimination” claims, such as those alleging sex discrimination, could also be legitimate grounds for a lawsuit against some religious institutions.

Yes. This generates lots of confidence that the Catholic Church will not be an institution that is tomorrow subject to lawsuits alleging sex discrimination regarding its hiring of priests.

The good news is that, based on the press account above, the justices seem skeptical of the Obama administration’s legal theory on this point—and a majority of the court are, in fact, Catholics of one stripe or another—but we’ll have to wait and see the outcome of the suit, won’t we?

In the end, the Church will not base its theology on the dictates of the U.S. Supreme Court, but if things go wrong now, they could go even more wrong in the future and harm the Church’s ability to live and promulgate its faith in America.

What do you think?