I'm only about halfway through - here are some highlights so far.
MR. LAYCOCK [Counsel for the parish]: How -- how many religious
functions you perform can be explored. The issue that
can be explored is whether she's a minister. We think
she clearly is. The issue -
JUSTICE SCALIA: And that term is a legal
term. What constitutes a minister is -- is decided by
the law, not by the church, right?
MR. LAYCOCK: That is correct.
JUSTICE SCALIA: Okay.
MR. LAYCOCK: That is correct.
JUSTICE KAGAN: Is that correct?
JUSTICE ALITO: But I thought with a lot of
deference to the church's understanding of whether
someone is a minister.
MR. LAYCOCK: We think there should be
deference to good faith understandings. But we are not
arguing for a rule that would enable an organization to
fraudulently declare that everyone is a minister when
it's not true. You decided the Tony Alamo case 20 years
ago. We're not defending that.
JUSTICE SCALIA: What makes it not true?
What is the legal definition of "minister"? What is it?
That you have to lead the congregation in their
religious services or what? What is it?
MR. LAYCOCK: We think -- we think if you
teach the doctrines of faith, if that is per your job
responsibilities to teach the doctrines of the faith, we
think you're a minister.
JUSTICE KENNEDY: While Justice Ginsburg is
looking, I had -- I had the same impression, that
whether you're commissioned or not commissioned doesn't
necessarily mean you can't teach a religious class.
MR. LAYCOCK: Well, it doesn't -
JUSTICE KENNEDY: And again, that's
something that, that can be heard. you don't even want
to hear it.
JUSTICE SOTOMAYOR: What is your definition
of minister? Maybe we need to find out. So it's not a
title. It's really -- the only function, you're saying
anyone who teaches religion?
MR. LAYCOCK: I think if you teach the
religion class, you're clearly a minister. But if you
are -- if you hold an ecclesiastical office, that makes
this a very easy -
JUSTICE SCALIA: Okay, but this is -- you're
saying a fortiori, but basically you'd be here anyway
even if she hadn't been ordained; right?
MR. LAYCOCK: That's correct.
Justice Breyer: . . . I didn't until I read the very
excellent brief filed by the Lutherans that explained
the nature of taking civil suits. No one said that to
her, whether it was in someone's mind or not. She found
out on motion for summary judgment. So therefore this
wasn't an effort by the religious organization to
express its tenets. She was dismissed.
She could have -- they could have had a
defense, but it doesn't apply, and therefore, even
though she's sort of like a minister, she loses.
[Poor!] JUSTICE ALITO: Mr. Laycock, didn't this
inquiry illustrate the problems that will necessarily
occur if you get into a pretext analysis -- the question
of was she told that she had violated the church's
teaching about suing in a civil tribunal. Well, that
depends. The significance of -- let's assume she wasn't
told. The significance of that depends on how central a
teaching of Lutheranism this is.
It's like, suppose a Catholic priest got
married and the bishop said: I'm removing you from your
parish because of your conduct. Now, there wouldn't be
much question about why that was done. So you'd have to
get in -- what did Martin Luther actually say about,
about suing the church where other Christians in a civil
tribunal. Is this really a central tenet of
Lutheranism? Isn't that the problem with going into
this pretext analysis.