Leondra Kruger, potential Biden Supreme Court docket nominee, surprised justices with place on spiritual liberty


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One of many girls on President Biden’s brief checklist to switch outgoing Supreme Court docket Justice Stephen Breyer as soon as startled the court docket’s justices together with her aggressive place towards the plaintiff in a spiritual liberty case. 

Leondra Kruger, now a justice on California’s highest court docket, argued on behalf of the Obama administration in Hosanna-Tabor Evangelical Lutheran Church and College v. EEOC, which concerned whether or not spiritual organizations needed to abide by anti-discrimination legal guidelines when selecting spiritual leaders. 


Supreme Court Justice Stephen Breyer is retiring at the end of this term. President Biden has pledged to replace Breyer with a Black woman.

Supreme Court docket Justice Stephen Breyer is retiring on the finish of this time period. President Biden has pledged to switch Breyer with a Black lady.
(Erin Schaff/Pool by way of REUTERS)

“The place that Kruger staked out as a litigant in Hosanna-Tabor towards the ministerial exception — one which even Justice Kagan described as ‘amazing’ during oral argument — suggests that she could be hostile to religious liberty if she were appointed,” Judicial Crisis Network president Carrie Severino told Daily Post Digital in a Monday statement.

“Given that Hosanna-Tabor was unanimously decided, such a position would shift the Court’s liberal wing even further to the left, which of course is the desire of the liberal dark money groups who spent $1.5 billion in 2020 to help elect President Biden and Senate Democrats,” she continued.

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Kruger broadly argued against a doctrine known as the “ministerial exception,” which generally bars the government from intruding into how religious organizations choose their leaders. 

The ministerial exception is what protects religious groups’ “freedom to make employment decisions based on their beliefs, including their beliefs on marriage and human sexuality,” for ministerial positions, notes the Alliance Defending Freedom, a conservative legal group. 

The justice’s ruling recognized that “it is impermissible for the government to contradict a church’s dedication of who can act as its ministers.”

In his opinion, Chief Justice John Roberts wrote that the Obama administration’s argument was “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”

“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,” he opined.

Throughout oral arguments, Roberts pressed Kruger on whether or not there may be “a ministerial exception distinct from the right of association under the First Amendment.”

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“We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses,” Kruger responded.

“Is there anything special about the fact that the people involved in this case are part of a religious organization?” Roberts retorted.

In this Dec. 22, 2014 photo, Leondra Kruger addresses the Commission of Judicial Appointments during her confirmation hearing to the California Supreme Court in San Francisco. Kruger is now reportedly on President Biden's shortlist to replace Justice Stephen Breyer. 

On this Dec. 22, 2014 photograph, Leondra Kruger addresses the Fee of Judicial Appointments throughout her affirmation listening to to the California Supreme Court docket in San Francisco. Kruger is now reportedly on President Biden’s shortlist to switch Justice Stephen Breyer. 
(AP Photograph/S. Todd Rogers, Pool, File)

Kruger mentioned her workforce thought the Court docket “has elaborated in other cases involving similar claims to autonomy, noninterference” however was interrupted by 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,” Roberts requested. “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?”

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Kruger mentioned her facet believed “the basic contours of the inquiry are not different” earlier than repeating her level about comparable circumstances, eliciting a response from a number of justices.

“That’s extraordinary… We’re talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application to –,” the late Justice Antonin Scalia mentioned, with Kruger ending his sentence.

“The contours — but 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….” Kruger mentioned.

President Biden has pledged to nominate a Black woman to the Supreme Court. 

President Biden has pledged to appoint a Black lady to the Supreme Court docket. 
(AP Photograph/Evan Vucci)

“So, this is to go back to Justice Scalia’s question, because I too find that amazing, that you think that the Free — neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees,” Justice Elena Kagan mentioned.


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