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The Ministerial Exception

Who is a minister?  

Cheryl Perich was a "called teacher" at Hosanna-Tabor Evangelical Lutheran Church and School. She took medical leave in 2004 after being diagnosed with narcolepsy.  After being treated and cleared to return to work by her doctors she was told by the school that her position had been filled and was asked to submit her resignation. Instead Ms Perich threatened to sue under the American with Disabilities Act and was fired. 

The ministerial exception in the ADA allows churches to require employees to conform to the religion's tenets, and a basic tenet of the Lutheran Church is that disputes are resolved in the church, not the courts. 

But because she only spent forty-five minutes out of her seven hour school workday on religious activities the Sixth Circuit held that Perich was not a ministerial employee, and thus her firing did not fall under the "ministerial exception".

Justice Sotomayor asks the lawyer for the church, Douglas Laycock, about “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.”

When former Solicitor General Walter Dellinger, here representing the teacher, tells the Court that the ministerial exception should not be offered to those employees who perform "important secular functions", Chief Justice Roberts responds: "That can't be the test! The pope is a head of state carrying out secular functions. Those are important. So he is not a minister?"

WaPo story here.

 

 

 

 

Children and Miranda

Justice Sotomayor : "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave." 

The case is J.D.B. v. North Carolina.

AP story here.

$290 Million Ruling Against Microsoft

Justice Sotomayor read her opinion for the Court in the patent-law case, Microsoft v. i4i Limited Partnership, which upheld the lower court judgement against the software giant.

The reaction in Redmond? : "Check under the couch cushions and pay them".

Financial Times story here.

 

Roberts Court Not So Business Friendly

Until recently the Supreme Court under Chief Justice Roberts has had a reputation of being friendly to business, but in two decisions delivered today the court continues a recent trend of rulings less favorable to business.

In the first opinion, authored by Justice Sotomayor, a unanimous Court said that stockholders could sue the makers of Zicam nasal spray.

And in a 6-2 opinion ( Justice Kagan took no part ) Justice Breyer wrote that a worker at a plastics factory was protected from retaliatory actions.

Click here for Robert Barnes' WaPo article.

I stuck around to hear/watch arguments in a case,  Borough of Duryea v. Guarnieri, concerning the First Amendment's petition clause.  Some of the historical precedent cited reached back as far as Robin Hood's Sherwood Forest.   Respondent's lawyer, Eric Schnapper :  "If you had a problem in England, if the undersheriff took your cow, you could go to the sheriff, but historically, that wasn't called a petition.  If you went to the king, that was a petition,"

Now that's entertainment!

This Week Inside SCOTUS

No big stories at the Court this week, but I entertained myself with some quick sketches. 

Chemical Carole

Tuesday looked promising with a made-for-TV case about infidelity, revenge and chemical weapons:  Carole Anne Bond was delighted when her best friend became pregnant, but when she learned the her own husband was the father her mood changed.

She mailed defaced photos to her former BFF, and told her "I'm going to make your life a living hell" and "dead people are going to visit you".  Then things got serious.  Carole, who worked as a microbiologist, obtained some nasty, and highly toxic, chemicals from work and began to smear them around her victim's home, including on the mailbox.  The U.S. Postal Service investigated and she was charged under a federal statute implementing the 1993 Chemical Weapons Convention.

As usual, the Justices were more interested in the law than in the soap opera, so the arguments focused on whether Ms Bond has standing to bring a 10th Amendment appeal. 

The one moment of comic relief came when Justice Alito asked the Justice Dept. lawyer, Michael Dreeben, "Suppose that the petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl?"

The Silent One

Tuesday also marked the five year anniversary of the last time Justice Thomas asked a question during oral arguments.  During today's second case,  U.S. v. Tinklenberg, Justice Thomas was intently following the arguments and it seemed to me that he was on the verge of asking a question, but no such luck.  I made the sketch below in anticipation.

Brandeis: A Life

Tuesday evening The Supreme Court Historical Society hosted a lecture in the courtroom which I attended with my big-time professional history buff niece Leah. Justice Kagan was there to introduce the speaker, winner of the Erwin Griswold Prize Professor Melvin I. Urofsky, author of Louis D. Brandeis: A Life.  

Above is a sketch of the courtroom during the lecture, while below Justice Kagan is pictured introducing Professor Urofsky, seated on the right.

A Slip On The Ice?

Is Justice Sotomayor foot-injury prone? Remember the cast she wore as she visited Senators before her confirmation hearings? 

This morning as we waited for the Justices to take the bench, a workman came in carrying an ottoman which he placed under the bench by Justice Sotomayor's seat.  A few minutes later the Justice hobbled in with the assistance of two aides from the Marshal's office.  

Dahlia Lithwick's story on U.S. v. Bond can be found here.