The transcript of the oral arguments of the Lutheran teacher/minister/EEOC case at SCOTUS is up and it is....what? I don't want to diminish the pain and hurt this matter has caused both the parish and the former teacher...but...well, the transcript is kind of funny if you are a lifelong LCMS Lutheran who has been party to endless discussions of just what in blue blazes is the Lutheran doctrine of the ministry. Kyrie Eleison!

I'm only about halfway through - here are some highlights so far.

+HRC

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.

.....