29 October 2011

ONE HUNDRED NINETY SEVENTH

CHIEF JUSTICE ROBERTS:  Is there anything special about the fact that the people involved in this case are part of a religious organization?


MS. KRUGER:  We think that the -- the analysis is one that the Court has -- has elaborated in other cases involving similar claims to autonomy, noninterference --


CHIEF JUSTICE ROBERTS:  Is that a "no"?  You say it's similar to other cases.  Expressive associations -- a group of people who are interested in labor rights have expressive associations.  Is the issue we are talking about here in the view of the United States any different than any other group of people who get together for an expressive right?


MS. KRUGER:  We think the basic contours of the inquiry are not different.  We think how the inquiry plays out in particular cases may be --


JUSTICE SCALIA:  That's extraordinary.


MS. KRUGER:  I --


JUSTICE SCALIA:  That's extraordinary.


MS. KRUGER:  Well, I --


JUSTICE SCALIA:  We're talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application to --


MS. KRUGER:  The contours -- the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here.  And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.


JUSTICE SCALIA:  There's nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization.  Now, yes, you -- you can by an extension of First Amendment rights derive such a -- but there, black on white in the text of the Constitution are special protections for religion.  And you say that makes no difference?




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