August 16, 2022

Leondra Kruger, potential Supreme Court nominee, faces questions on religious rights case

Kruger, then a lawyer in the solicitor general’s office and now a justice on the California Supreme Court, failed to win even the vote of her recent boss — Justice Elena Kagan, who was confirmed to the court in 2010 after serving as President Barack Obama’s solicitor general. Kagan termed the government’s argument “amazing,” and not in a good way.

President Biden is committed to his campaign promise to name the first Black woman to the Supreme Court. Here’s a list of his top contenders. (Mahlia Posey/The Washington Post)

Kruger, 45, is on Biden’s shortlist to replace retiring Justice Stephen G. Breyer, and conservative groups are promoting Kruger’s role in the case as evidence she might not protect religious rights as a Supreme Court justice. Defenders say she was simply a lawyer arguing a case for a client, the messenger for an administration position that found no favor on the court.

If nominated, the Senate will want to know “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her,” said Michael W. McConnell, director of the Stanford Constitutional Law Center. “Having been in that office, I know from experience it could be either way.”

Donald B. Verrilli Jr., the solicitor general at the time and Kruger’s former boss, said it is the latter.

Hosanna-Tabor was 100 percent on me,” Verrilli said in an interview. “I arrived as SG that summer, and we had to make a decision, and I tried to balance protections against discrimination against religious liberty, and I didn’t do it.”

He added: “If I had one case to do over as solicitor general, it would be that case.”

But while Verrilli said it “would be terribly unfair for her to be blamed,” Kruger advanced the government’s brief in the case, along with Verrilli and Thomas E. Perez, former assistant attorney general for civil rights. She served in the office as what is called a career lawyer, but she had been part of its leadership after the Supreme Court accepted the case and as the Obama administration started formulating its position.

Verrilli said it was not proper to discuss the office’s internal debate about the case or whether Kruger championed or disagreed with the government’s ultimate position. Kruger’s chambers in California did not respond to an interview request.

The case was the Supreme Court’s first look at the “ministerial exception,” which says the Constitution’s religion clauses bar government intrusion into an organization’s decisions about who leads and teaches the faith. A regional appeals court first created such an exception in 1972, and it was widely adopted by other courts around the country.

The case before the Supreme Court involved Cheryl Perich, a former teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich. After taking religious classes, Perich was promoted from a lay teacher to a “called” teacher in 2000, and she taught religious and secular classes, such as math, and occasionally led chapel.

She became ill in 2004 and took a leave, eventually receiving a diagnosis of narcolepsy. When she tried to return to her job, the school said that it had hired another teacher and that she would probably be terminated.

Perich threatened to sue under the Americans With Disabilities Act, and the church fired her. It said her actions would violate Lutheran teachings that disputes be handled within the church, rather than in court.

The Equal Employment Opportunity Commission took up Perich’s cause and sued the church.

A federal judge agreed with the church that the ministerial exception applied. But the U.S. Court of Appeals for the 6th Circuit reinstated her lawsuit, under the theory that Perich’s primary function was teaching secular subjects.

The lower court’s decision was not “radical,” according to McConnell, a former federal judge who is an expert on religion and the law at Stanford University.

But the Supreme Court’s review of the decision “became important because of the extreme position the solicitor general took,” McConnell said.

The government’s brief said the Constitution’s religion clauses — prohibiting government establishment of religion and guaranteeing free exercise of faith — had only limited impact when anti-discrimination laws were involved. More relevant, the government said, was the First Amendment’s right to free association. Under such a theory, Kruger said at argument, that would mean the “basic contours” of analyzing Perich’s complaint would be the same whether she was employed by a church or some other group with those rights, such as a labor union.

“That is extraordinary,” Justice Antonin Scalia said. Twice.

“We’re talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application.”

Kagan employed a similar line of questioning, “because I too find that amazing, that you think that … neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” wrote Chief Justice John G. Roberts Jr. “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

The court’s opinion soundly rejected the government’s argument as “untenable” and “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”

Added Roberts: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

While the ruling said Perich’s case was covered by the ministerial exception, the court declined to say exactly who among an organization’s employees qualified. It answered the question more fully in 2020, broadening the exception in a pair of cases brought by fired parochial schoolteachers.

In a 7-to-2 ruling, it said that those involved in almost any kind of religious instruction would be considered “ministers” of the faith, no matter their official title or even if they practiced the faith themselves.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, saying the decision gave religious employers “free rein to discriminate.”

Even though the Hosanna-Tabor case was the first time the Supreme Court confronted the issue, Verrilli said, he did not feel he was being particularly aggressive in staking the Obama administration’s position. “I didn’t think we were being bold,” he said. “I was trying to craft a position that was balanced, but I failed.”

Some do not think Verrilli was wrong and the court was right. “The Court mistakenly protected religious institutions’ religious freedom at the expense of their religious employees,” Leslie C. Griffin, a law professor at the University of Nevada at Las Vegas, wrote in a law review article about Hosanna-Tabor. She added, “The numerous justifications for the exception are all a restatement of one foundational and fundamentally mistaken argument: that religious groups are entitled to disobey the law.”

It doesn’t appear Kruger’s California court has had reason to interpret the Hosanna-Tabor precedent, although she mentioned it matter-of-factly in another First Amendment case. But conservative groups hold out Kruger’s argument as a reason to be wary of her.

“Leondra Kruger was the number two in the SG’s office at the time” the brief was filed, said Carrie Severino, president of the Judicial Crisis Network, which has opposed Biden’s judicial nominations. “It is insulting to her and defies common sense to suggest that she would not have been instrumental in the development of the government‘s position in this case.”

If Kruger is nominated, it would be up to the Senate to look more deeply into her role.

William M. Jay, a Washington lawyer who has argued before the Supreme Court and is a veteran of the solicitor general’s office, said all that one can infer from Kruger signing the brief and arguing the case “is that she didn’t think it was so outlandish a position she wouldn’t associate herself with it.”

He reiterated that it is the job of lawyers there to represent the government’s position regardless of their opinions.