An employee “having cancer has nothing to do with the performance of her religious function,” Justice Ginsburg pointed out.
, did not lay out a test for courts facing cases like. It was, instead, deliberately opaque, leaving the precise contours of the exception for another day. That day arrived on Monday, and it wasn’t pretty. Justice Elena Kagan captured the quandary in a colloquy with Eric Rassbach, who defended the employers. She gave Rassbach a list of hypotheticals, asking him to say whether the employee would qualify.
“I think a nurse doing that kind of counseling and prayer may well fall within the exception,” Rassbach responded. Amusing as this line drawing may be, these cases pose a real threat to long-standing employee safeguards. Ginsburg described the breadth of the requested exception as “staggering,” noting that it would exempt religious employers from “all anti-discrimination law.” That includes measures to protect workers from disability and age discrimination.
Rassbach and Ratner’s arguments also alarmed the conservative justices, for a very different reason: They don’t appear to want courts drawing these lines. “How exactly,” Justice Clarence Thomas asked Rassbach, would “a secular court go about determining whether an employee’s duties and functions are religious or whether they’re important?”
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