Supreme Court Hands Victory to Church, Laycock; Cites Professors in Eyewitness Case

January 11, 2012 — The U.S. Supreme Court on Wednesday issued a unanimous opinion in a major religious liberty case argued by University of Virginia School of Law professor Douglas Laycock.

In the opinion deciding Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, written by Chief Justice John Roberts, the justices sided with Laycock's arguments, finding that the First Amendment guarantee of freedom of religion limits the ability of religious institution employees to sue for employment discrimination.

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important," Roberts wrote. "But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way."

Laycock, a leading expert on the law of religious liberty and the counsel of record for the Hosanna-Tabor church and school in Michigan, argued that the justices should retain the First Amendment doctrine of the "ministerial exception," which bars most employment-related lawsuits brought against religious organizations by employees who perform religious duties.

"This is a huge win for religious liberty," Laycock said. "The court has unanimously confirmed the right of churches to select their own ministers and religious leaders. It has unanimously held that the plaintiff in this case was a minister for purposes of the rule. It has unanimously held that the courts cannot inquire into whether the church had religious reasons for its decisions concerning a minister. The longstanding unanimity in the lower courts has now been confirmed by unanimity in the Supreme Court."

The case, which was argued in October, marked Laycock's third oral argument before the Supreme Court.

Also on Wednesday, Supreme Court Justice Sonia Sotomayor cited two U.Va. law professors in her dissenting opinion in Perry v. New Hampshire, a case on eyewitness reliability. The justices voted 8-1 that courts are not required to exclude eyewitness testimony when identifications are made under suggestive circumstances that are not orchestrated by the police. Judges currently can bar testimony when the police intentionally influence a witness to identify a suspect.

In her dissent, Sotomayor criticized the majority ruling for resting on the "murky distinction" of whether police actions intentionally or inadvertently influence an eyewitness. She cited research by professor John Monahan that also was referenced in a decision by the New Jersey Supreme Court in August. In that case, the New Jersey court outlined sweeping new rules for handling eyewitness testimony, including explaining to jurors why an eyewitness identification may not be reliable.

Sotomayor pointed to a portion of the case's opinion that quotes Monahan, writing, "'[t]he research [on the unreliability of eyewitnesses] ... is not only extensive,' but 'it represents the "gold standard in terms of the applicability of social science research to law."'"

Sotomayor also cited data from U.Va. professor Brandon Garrett's book, "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," some of which focuses on problems with eyewitness testimony in the criminal justice system. "Researchers have found that a staggering 76 percent of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification," she wrote.

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Brian McNeill

School of Law