More Questions: the Government's Position in Hosanna-Tabor

It has been difficult for me to get a fix on the government's position in Hosanna-Tabor.  I posted some initial questions about it here.  Leslie Griffin offers thoughts about what Assistant SG Kruger should have said, but did not say, here.

Here is another piece of the puzzle (courtesy of Chris Lund, with whom I've been trying to hash some of this out), from the government's brief (40-41):

Cases in which the religious employer offers a reason relating to an evaluation of the plaintiff's performance of religious functions for an adverse action pose the greatest risk of entanglement.  If, for example, Petitioner in this case had claimed it fired Perich because she was insufficiently spiritual, it would be constitutionally problematic for Perich to challenge that assessment in precisely the same way that an employee of a nonreligious employer might attempt to challenge a comparable subjective defense in a secular setting, e.g., that she was insufficiently professional.  By contending that she was in fact just as spiritual or more spiritual than other teachers, Perich's claim would risk entangling the Court in religious questions beyond its adjudicative capacity.  In such cases, the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment.  If Plaintiff's only pretext evidence consisted of a challenge to that assessment, then the suit might have to be dismissed altogether.

I'm having trouble with this view -- not even from the point of view of agreement or disagreement, merely from the perspective of understanding it.  Some questions after the jump.

1.  It was my understanding that the government's position was that there is no ministerial exemption.  Religious institutions can defend discrimination suits by raising freedom of association defenses (setting aside the statutory exception and BFOQ issues) just like anybody else.  But in this statement, it seems like a defense of insufficient spirituality presents for the government a special kind of concern -- so much so that the government agrees that if all the employee has in response is the claim that he actually was very spiritual, the claim of discrimination has to be dismissed.  At the same time, the government says that this sort of 'spirituality' defense is exactly the same as the "subjective" defense of a non-religious employer that the employee was insufficiently professional.  So is it the subjectivity of the defense which makes these two types of claims equivalent for the government?  Is the government saying that when a non-religious institution defends a claim of discrimination by asserting that the employee was "unprofessional," the suit must be dismissed if all the employee can muster in return is evidence that she was, in fact, professional?  That must be wrong.

2.  I do not understand the reference to entanglement in the statement.  Entanglement is a concern that is activated by the government's interaction with religious institutions.  It is a concept with a long lineage in religious liberty generally, and in Establishment Clause doctrine specifically (see Lemon and cases following).  If it is true, as the government asserts, that cases in which the religious entity is claiming that the employee was insufficiently spiritual present special questions of "entanglement," then that appears to be an argument for something special about discrimination suits which involve religious entities. 

This makes the reference to non-religious employers defending such suits on the grounds that the employee was insufficiently professional mystifying.  Why would we care that the secular government was entangling itself with a non-religious institution?  Whatever concerns we might have would not go under the name entanglement, because entanglement is a concept that applies when we are talking about the government's involvement with religious institutions.  If we are concerned with entanglement at least in some situations (again, as the government seems to be here), then that is a concern which distinguishes this case from the ordinary associational case precisely because we are dealing with a religious institution.

3.  I continue not to understand the reference to "spirituality" or, as Professor Griffin puts it, "theological" considerations as a marker for distinguishing between those situations in which it is permissible and impermissible for courts to intervene.  It has always seemed to me that endorsing a test of "spirituality" is a question-begging way to go about doing things: Hosanna-Tabor is claiming that Perich's decision not to submit to the internal resolution procedures of the Synod was exactly evidence of a spiritual (or, if one prefers, theological) failing on her part.  

The government says that the court can inquire whether the Church was motivated to fire Perich on the basis of her failure to submit to the internal procedure, without "questioning the validity of the doctrine."  (42)  I don't understand this.  I would assume that no court would opine as to the "validity" of a religious doctrine.  What would it even mean for the government with no established church to declare a religious doctrine "invalid"?  But the issue of whether the Church was motivated by its own doctrine goes to the centrality of the procedure, the degree of commitment of the Church to the procedure, its place within the religious tradition, the sincerity with which the view was held, and so on.

I should add that I am not necessarily opposed to some inquiry in these situations.  In fact, I support a careful kind of inquiry -- careful and limited because of the nature of the special religious liberty interests applicable here, ones which are not exhausted by association doctrine.  But the issue here is not my own views, but whether the availability of this inquiry can be judged by bifurcating defenses into "spiritual" versus "non-spiritual."  I don't think that it can.  The inquiry, if it is made, will almost certainly probe into "spiritual" or "theological" matters.    

Moreover, the case is laced with other disputes about "spirituality" or its lack, and these issues serve as backdrop and context as to the quality of the termination/retaliation claim.  Perich claims that she rarely introduced theological considerations into her courses; the Church claims that such integration, and the duty to serve as a Christian role model, were core parts of her job responsibilities.  Why is this all not evidence of her lack of "spirituality."  I can understand what might be a non-spiritual claim.  A gargoyle fell on my head as I was walking into the church.  My religious employer failed to pay me money due on a contract.  I was fired because the Church discovered that I was a convicted child molester.  But beyond these simple examples, what is it, in the government's view, which makes the Church's defense non-spiritual?   

ADDENDUM: It occurs to me that there might be another way to read this paragraph, though it would require one to believe that it contained a drafting error.  The government says this: "If, for example, Petitioner in this case had claimed it fired Perich because she was insufficiently spiritual, it would be constitutionally problematic for Perich to challenge that assessment in precisely the same way that an employee of a nonreligious employer might attempt to challenge a comparable subjective defense in a secular setting, e.g., that she was insufficiently professional." (emphasis mine)

I have read this language as meaning that each situation would be equally constitutionally problematic ("constitutionally problematic . . . in the same way").  But it is possible that the government actually meant to say that the nonreligious employer/"insufficiently professional" defense is not constitutionally problematic "in the same way" as is the religious employer/insufficiently spiritual defense.  This is not a true reading of the language, but it's possible that the drafting was messy. 

If the latter is the correct reading, then obviously the government would be saying that the two situations are not the same -- and in consequence that there is something different and special when we are dealing with religious institutions -- something which relates to "entanglement."  If that were the case, then it seems to me that the government would be advocating for a ministerial exemption, albeit one limited to purely "subjective" "spiritual" defenses.  That, again, would not be consistent with its claim that there is no ME, but only an associational defense.