SCOTUS 15: Help Us, Ruth Bader Ginsburg! You're Our Only Hope!

[SJHovey]

Because a hospital in a rural area that is likely affiliated with a church (20% of hospitals are religiously affiliated) should not be able to fire a nurse, doctor, or janitor simply because they're gay?

Are you really going to argue that the receptionist answering the phones for the principal is a minister?

The general rule should be no discrimination unless absolutely necessary, not "go ahead and discriminate as much as you want if you're religious." The limits were there as a way to accommodate the churches so that they couldn't be forced to hire woman priests, not so that they could fire the black cafeteria worker. Now the exception has swallowed the rule.

Alright, there are a lot of issues here. The first is the "ministerial exception" which is the subject of the courts decision today, which talks about whether all employees of a church are barred from suing for discrimination versus only a "minister." The second issue is the Hobby Lobby issue, which has to do with how far down the Church - Business spectrum do we apply this rule, and which as I understand it, was not really the issue in today's case.

So let's talk about a church first. Let's say this church is opposed to gay marriage as part of its doctrine. It seems to be settled law that we will allow them to discriminate in a way that say General Electric can't by refusing to hire someone, or firing someone, who supports gay marriage. Whether that's right or wrong can be debated, but in this country, today, that seems to be well-settled.

The question addressed in today's case is to whom does that apply within the spectrum of church employees. A church may have a minister, an associate minister, a youth minister, an activities director, a secretary, a groundskeeper, or a wide variety of positions. There has never been a doubt that someone like the minister could be fired for preaching against creed, without recourse to the discrimination statutes. But the litigation was always in the gray area. Is there a difference between with the youth "minister" versus the youth activities director? I always thought that distinction was stupid. These people are supposedly representing the church in their job. If they are going to go against church ways, why should one be barred and not the other? The effect of trying to draw a line always involved churches applying the name "minister" whenever they could, which is silly.

The second question, and the one you addressed in your post, has to do with how far down the "business" spectrum should this apply. On one end you have churches, on the other you have businesses like Hobby Lobby who claim to have some sort of religious belief. Religious schools, somewhere in between, were the subject of today's case.

In my mind, I don't think the rule should be extended to for profit businesses like Hobby Lobby or wedding cake shops or the like. Personally I think it probably shouldn't go much further than churches and affiliated schools. I didn't attend a catholic high school, but I had plenty of friends who did. There is no question that part of the curriculum of that school was religious education/indoctrination. In those instances I think the rule set out by the SCOTUS today should apply. I don't care if it's a priest, a nun, or a "teacher" that's engaged in the indoctrination. If you happen to be emptying the garbage cans in the school after hours as your job, unfortunately you are part of the indoctrination process.

For things like your hospital that is owned in part by a church, or Hobby Lobby, I don't think they should receive the right to discriminate at all. Their purpose is not religious teaching, it's healthcare or selling junk.

Just my two cents.

[unofan]

My predictions for this morning:
Indians win 5-4 (Gorsuch being the tiebreaker) and 1/2 of Oklahoma will now technically be part of a reservation.
Trump beats Congress 5-4 (partisan split, with Roberts joining the conservative wing)
State of NY beats Trump 5-4 (partisan split, with Roberts joining the liberals), but since it's a grand jury proceeding, we still won't see the taxes until after the election.

[Kepler]

Nice post on SCOTUSBlog:

In the first opinion of Christmas, my Chief Justice gave to me, a ruling re: Indian Territory

In the second opinion of Christmas, my Chief Justice gave to me, a peek at Trump's ten-forty

In the third opinion of Christmas, my Chief Justice gave to me, an indictment from Albany

[Kepler]

Rumors that Alito and Thomas may both retire giving Dump 2 more appointments. Triumph of the Will.

[SJHovey]

My predictions for this morning:
Indians win 5-4 (Gorsuch being the tiebreaker) and 1/2 of Oklahoma will now technically be part of a reservation.
Trump beats Congress 5-4 (partisan split, with Roberts joining the conservative wing)
State of NY beats Trump 5-4 (partisan split, with Roberts joining the liberals), but since it's a grand jury proceeding, we still won't see the taxes until after the election.

I think that's probably an excellent prediction.

[unofan]

Rumors that Alito and Thomas may both retire giving Dump 2 more appointments. Triumph of the Will.

There's rumors like that every freaking year, and especially in years where there's a possibility of a change in the WH. People were calling for RBG and Breyer to retire in 2015. Alito's still relatively young, don't see it. Thomas is going to die in office, so I also don't see that happening.

And you want to see the Senate flip hard in November? McConnell ramming through a SCOTUS nominee in an election year would do it.

[Kepler]

There's rumors like that every freaking year, and especially in years where there's a possibility of a change in the WH. People were calling for RBG and Breyer to retire in 2015. Alito's still relatively young, don't see it. Thomas is going to die in office, so I also don't see that happening.

And you want to see the Senate flip hard in November? McConnell ramming through a SCOTUS nominee in an election year would do it.

I hope you are right.

[Kepler]

My predictions for this morning:
Indians win 5-4 (Gorsuch being the tiebreaker) and 1/2 of Oklahoma will now technically be part of a reservation.

This would be very interesting, as Roberts has been 60-1 so far, and that would have him finish at, presumably, 62-2.

[unofan]

This would be very interesting, as Roberts has been 60-1 so far, and that would have him finish at, presumably, 62-2.

I don't know what the split of the other 8 are, other than they split 4-4 previously when Gorsuch was recused. Cases involving Native Americans, just like criminal procedure cases, can produce weird splits (Scalia and Breyer almost always flipped from their normal sides on 4th Amendment cases, for instance).

[Kepler]

I don't know what the split of the other 8 are, other than they split 4-4 previously when Gorsuch was recused. Cases involving Native Americans, just like criminal procedure cases, can produce weird splits (Scalia and Breyer almost always flipped from their normal sides on 4th Amendment cases, for instance).

I recall Scalia didn't like searches and Thomas liked porn.

[Kepler]

Ha.

When was the last time there was NOT a rumor of a retirement at the end of a term?

1789

[Kepler]

10:00. Here we go.

[ScoobyDoo]

I bet in a 5-4 they don't allow Trump's finances or taxes to be exposed.

[unofan]

1st one up is the indian one. 5-4, Gorsuch with the liberals. Oklahoma is native American land.

[Kepler]

My predictions for this morning:
Indians win 5-4 (Gorsuch being the tiebreaker) and 1/2 of Oklahoma will now technically be part of a reservation.

McGirt is Gorsuch 5-4. Have a sheroot.