"The government can do many things to force reporting," Laycock said. "If the government's interest is … protecting the children, then you can assess whether that government interest is sufficiently compelling to justify interfering with the relationship between the church and its ministers. But the government's interest is at its nadir when the claim is we want to protect these ministers as such, we want to tell the churches what criteria they should apply for selecting and removing ministers."
(Laycock added, "The one case I am aware of cuts the other way. A priest accused of sexually abusing children was fired, sued to get his job back, and the church invoked the ministerial exception and that case ended. They were able to get rid of him.")
Dellinger brought the child abuse example up as well. "The State's interest in allowing citizens to have access to its courts and to its agencies is paramount—in cases like child abuse, reporting of school safety problems and others."
"It's not paramount," Justice Antonin Scalia interrupted. A Catholic priest can't just sue if he gets removed from his duties for getting married, he suggested. Dellinger agreed. "The reason is there are ample doctrines to protect church autonomy. One is that under the Establishment Clause, there can be no reinstatement ordered by a court of someone into an ecclesiastical position."
Dellinger and Laycock were not the only lawyers arguing before the court in this case. Leondra R. Kruger, assistant to the U.S. Solicitor General, argued the government's anti-discrimination case. And, to the surprise of many justices, she argued that the First Amendment had limited, if any, application in the case. It's the right of expressive association that's at issue, Kruger argued. "We don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry. … We don't see that line of church autonomy principles in the religion clause jurisprudence as such. We see it as a question of freedom of association."
Justices Scalia and Samuel Alito were incredulous. But so was Justice Elena Kagan, who called the view "amazing."
But Kruger stood her ground, saying that the question wasn't about religious rights, but about the right to tell the government about illegal conduct. "The government's interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law."
That government interest is even stronger, she said, than eradicating discrimination in the workplace—which is why she said that a woman could not sue over being excluded from the Catholic priesthood because of her gender.
"When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?" asked Alito. "You're making a judgment about how important a particular religious belief is to a church."