these are the people who will teach the fee on - - the faith to the next generation if they don't do it nobody else will then to decide those delicate questions with the constitutional to get a should be reversed. >> the case is submitted. >> so the second case we have heard this morning is our lady of guadalupe a and i have the pleasure to introduce him now eugene joins the professors and others in support of the petitioner a distinguished professor of law at the ucla school of law where he teaches the first amendment and the author of the first amendment and co-author of the conspiracy and it is wonderful

to have him in joining the brief submitted on the national women's lawl center and 68 other organizations of the legal director of the women's law center to oversee those litigation efforts help to create the legal network for gender equity and until august 2017 deputy director for the civil rights division for department of health and human services. thank you for joining. >> they give for having a. >> good to be here. >> what i case this was. you file a brief on behalf of the petitioner so we will begin with you and i will

write back up to the first question that chief justice roberts asked and the attorney who said it is a teacher to personify church values is that have to have the at onministerial exception? what was chief justice roberts getting a and how he was pressing the petitioner on the central claim that it should be whether or not if they perform important religious functions. >> antidiscrimination law applies to the federal employers in particular large or medium or medium small employers it applies to

churches and synagogues so when i catholic church says you only have been are presets illegal you have to hire women if the church says no then you support the really the country. >> courts have long recognized to antidiscrimination. for certain kinds of employees andeligious institutions then they may say okay but it's okay to hire nuns and not otmonks or something there has to be those types of

exceptions and that ministerial exception but even those ministers don't have a label with that sharpest vision of labor so what happens to schoolteachers at religious schools? and i think what we sow with chief justice roberts is to have thew notion any employee to personify the church is exempted and i can cover a lot of things. so if somebody teaches religion then they don't just personify the church and then to convey religious doctrine. that is a lot closer that's a

lot to the priest or the rabbi. >> what about the line the court is trying to draw? but where the line will be and how that will deal with school teachers and religiousgi school. >> thank you very much for that. several justices said this would represent a radical exception to antidiscrimination law because it expands that ministerial exemption which the court gnrecognized in the hosanna tabor case decided 2012 that if the teacher was called asas a minister that was not subject to antidiscrimination laws it could be fired then anyone

that worked could be discriminated so what did you hear what that concern was and how they prefer to keep the hosanna table or case to include those who performed leadership or ministerial functions. >> justice ginsburg was troubled at what is called the staggering brat what's at stake. already and hosanna table arewe going from a spiritual leader someone who is a commission to minister so that was already and expansion in the area of immunity. so not even those employment

rights that are at stake and employment contract rates and those that basically and have a whole host of protection. man you have that cover you have to carefully check who gets to be included in that. and so now we go from don't worry this is a special teacher. now we come all the way down to regular teachers are theyea teachers who teach it out of a workbook also a very dramatic moment nurses and hospitals

would not have civil rights protection that they are asked to do prayer along with caring for the sick so what justice one - - just on --dash justice gorsuch once is to wonder if they can we can minister to the doctrine may be in a good faith way because they are personify the faith or for any liability of those reasons a whole host of those that deny civil rights protection so there is so much at stakeke with healthcare, camp counselors, the ball coaches and justice kagan did a whole line of hypotheticals there was not a clear answer. >> u those were amazing hypotheticals she just wanted a yes or no answer is that covered? probably not. and then you mention a math teacher with jewish prayer and

that takes no that's too much and then granted them all. so with those leading experts on the free exercise clause the discussionn they argue this expanded exemption in the free exercise clause but what is a response to justice breyer the ability to those with the restoration act or those qualifications with those of the important religious function as a tool to have the exemption to prevent you from firing someone like it someone giving chemotherapy.

that is a radical expansion. >> there are two things going on in your question and one is what is the legal force? is that the first amendment with the establishment clause or both leave it to just statutes? seven estate that doesn't have a freedom of religious from those similar provision and which doesn't have the exemption for the sex discrimination law and most iodon't and that state they could not function if the rights are subject only to the statute. maybe but that also is that

exception that has been narrowed. that is why the courts that it is a constitutional right to select whatever criteria in the synagogues or not. >> so the second question is the situation where it looks like the institution doesn't have a religious doctrine to fire the disabled?

so why should it have been exemption there? and that is the entanglement. >> so to recognize that exemption in part because even though the lutheran church where not firing them for being disabled we are firing for another reason but deciding the trueth reason of the religious employer for not hiring or firing. we do itt all the time for secular employees do we think the person that is a really good job so there is no basis? in the supreme court says how making that decision if it was

reasonable to fire somebody because they were doing a bad job of teaching religion. we do have a religious objection or having people with us run by the elders and therefore have a religious objection. and then they use the criteria or otherwise they don't. but that's not the rule of the court. >> several justices were concerned with entanglement of the n-terminal decision and in the hosanna tabor case for the

establishment clause where it said that requiring a church to accept the minister or punishing them for failing to do so interferes with the internal governance of the church including the edwin to administrative state and then to see which also violates the establishment clause for some of the other justices pushed back to avoid that entanglement problem if there is a position of leadership and authority and primarily responsible for pushing the faith. i want to understand how dramatic a result it would be if the court extends that decision to unanimous into the hotly contested area of any employee if they have

important religious function do you agree that is rooted in the first establishment clause? >> question of entanglement that they are struggling with. so what is this test so justice gorsuch says any analysis at all is entangling. but what we believe it is correct so you have to look at more objective criteria. it was about title and duty but all of these important factors and also what is the institutionng saying how were they holding themselves up to the world?

but also for what they signed up for as to a disability or race claim or age claim that even though you taught art so if you have the courts to say that you lead plays or taught was one - - listens to on one line or the other of this factor is important religious function test. - - is one of the pieces that you should look at under hosanna table or and you cannot have a system that is wholesale difference to religious institutions if any employees were covered by the civil rights law that this throws to the wind and then

also think about who is being harmed. 300,000 and lay teachers bringing up nurses and workers.e women, people love color that are protected with multiple identities bear the brunt while religious institutions get a free blank check even if ab bthere is a sincere belief we think they personify our faith. even then this is not practical to balance the equities. >> thank you for mentioning those numbers it was also argueded that the unemployment protections including those asthat teach secular classes.

as a matter of text and original understanding what about the free exercise clause that the entanglement it didn't have judges second-guessing, what can you say for interpretation to carve out this broad exemption? >> i'm not primarily a and originalist some are and some are not. i'm not sure how much original meaning has to say because the understanding of employment that there had been disputes saw the about church employment and if ministers

could be appointed bishops and the like. and as this was a very hot issue in england and puritans and catholics and i do think the framers pretty clearly understood that churches were entitled to select their priest or their ministers or rabbis. i don't think they had much to think because they were not regulated the way it iseg now. so maybe they have more than before but i do think that

there is good functional reason to say religious institutions hire people to teach religion and the government stays out of that decision. it is true that certain employees are not covered by employment law just like if a woman wants to be a catholic priestth i sympathize with her desire but she can't and then loosens the benefit of modern employment but that is the nature of the protection that we offerwh for the faith in the question of the faith is limited to being a spiritual leader or in judaism or a musical for those music programs but that supreme

court question that but looking to the title but those different religious groups are quite different so my understanding for instance is that the a mom is a leader who doesn't have to have a full blown title to have the respect and that quakers also have that view about people within the congregation and nmany rabbis are ordained but it's not clear what that significance should be so that's one reason i find that functional approach more appealing. but looking to the title in some places it is very clear

because those institutions are all about sharp divisions of labor but for other religious groups it's not. >> many thanks for that. justice leaders said what to do between an elementary school teacher it may not be all day because elementary east teachers teach different subjects but wouldn't teaching some religion be enough to qualify? if that's a line that the court adopt anybody who teaches some religion or values does that mean a catholic school could fire any complaining about child abuse in the church or a same-sex marriage? are all teachersig losing protections under

antidiscrimination laws? >> that is a possible outcome with the analysis because it doesn't have to be minister but if the women were hired as lay teachers with the benefits book they had no reason to feel they were spiritual leaders they taught out of a workbook those are the teachers we are talking about across the country they should not be denied employment protection rights. but the harder question is if you have someone who teaches religion all day long in the high school even as they show during the argument the question is does that person who teach out of a a workbook you come in on tuesday and teach chapter five or is she does spiritual director of the

program? think of thosese questions that came up. what is the primary job of the esperson? do help to think about function it is helpful analysis to see compared to the teachers here more than piece and then the full title discussion is so fascinating because the issue is not minister in the title but are you being held out to buy this organization to be a spiritual leader somebody is providing direction on religion and as part of their job for a period of class time does not seem to be aligned with hosanna table were or how the whole doctrine developed which is to say you canet hire and fire the houses of worship

leader. that's where it started now extended to someone a commissioner and a teacher now extended to a full-time religious or part-time religious teacher or maybe those that personify the faith. soly this could have damaging consequences. >> so what about that of being a teacher of religion? so the respondent in this case did say i didn't even know i was a religious teacher i was just teaching on this subject and that i was in the hospital and i got fired. so if entanglement is the concern that they say is a different way to do it or is there another test which is narrow and doesn't cover

teachers without those protections? >> we saw a couple of different thoughts about that but the question is holding out the person as a teacher of religion my understanding is they were among other things in fact what are you? they didn't say teacher of religion but they did teach religion and that if you ask one of the students, johnny, what did you study today he will say religion from the teacher who teaches me religion. so m the teacher is held out. now, what i saw, the other frame is a spiritual leader. that doesn't matter because a

lot of teachers are not held out but that might require you to ask and then go back to rabbis as i understand it i but spiritual. >> so maybe that is the definition i don't know if they are prepared to say to have actual spiritual leadership but with that leadership my understanding is i don't want to be a spiritual leader we are not a leadership type off group. i just tried one - - try to spread my understanding. so is that question the personon being held out would be anybody who teaches religion?

then that would be narrower and to answer the question there are a lot of lines at this is an area of those possible explanations and that rockaw consensus of that unanimous decision but ultimately draw the line and with justice kagan's position that somebody really is a teacher of religion that is close enough to the minister or priest or rabbi. but now it is interesting if somebody says something about religion for one minute a day or those that teach it for half an hour? i don't know if i'd say teaching from a workbook i'm

not that something one - - believe that something the court is prepared to do but i think the view would be religious institutions are to micromanage their teachers are not but a lot has to do what you think is the most effective for the grade level you may teach from a workbook but then use that with your emotion and intellectual qualities to draw the distinction as a real teacher of religion with spiritual qualities. versus dialing it in i don't think that would elevate. >> thank you for noting justice kagan to suggest even a religious teacher could be a place to draw the line but also with a hosanna table our decision is unanimous in joining the decision during

oral arguments preaching and teaching holding yourself out as the role to decide who gets that exemption so justice alito said i more comfortable if we jettison the administer role objections phrase why is is a religious autonomy teaching is central so has justice alito moving toward applying this religious autonomy more broadly in cases outside of schools involving the hobby lobby case with us antidiscrimination laws for those anti- scrupulous businesses but justice ginsburg said we were just about to drive out antidiscrimination laws. do you see justice alito going in that direction to say that?

>> yes that's important. what is the backdrop we are in this moment where hospitals are merging and affiliating so the levels in the numbers of people working is only increasing. and then those that are bringing these defenses with theof expansion that is impacted by the and then just as in the birth control case that came up know where do the rights not have the access on - - access. just is what happened here about without any attachment

to the first amendment to that came up repeatedlyy because it was said to have religious institutions you were just think so under the statute you could hire or fire to what we think teachers should be there are many other ways to bring up these initiatives. but the question in this case is a get a complete blank check community. so i think framing it was rights because there is a whole number of exemptions

for religious institutions can use to protect themselves. >> what can you tell us about the authority because it's not in the first amendment but how broadly does this sweet and why is it more categorical to grant immunity than the original freedom restoration act that has a balance. where is this coming from? >> right. where it comes from those things with the american legal system is precedent which is then with that restoration act of protection because it is narrower. it can put were those that are not as a way it is designed. but youwh don't have a but as

long as the catholic church but then you need to have it a little bit more narrow or deep to have a more thorough protection than the broader applying to everybody. >> so why do wee think there ought to be some measure of independence for religious institutions? the government tells them that you have to accept this person as a leader or as a teacher of your religion. why would we be that? >> i think the answer to the court historically is that the

freeee exercise of religion generally speaking includes the freedom to have the zone religious institutions the most important thing it can do is propagate for generation and generation that requires a certain degree of freedom is not even available commercially if you cannot have free exercise of religion with the catholic church then you have to hire women as pre- store if otherwise monks teaching as well as nuns and with that sense of the ministry is the way he should be then to have that religious

discussion to define in part as an ethnic role or a national origin i am not religious j but i would be counted asou jewish but you can imagine them saying that my dad the children of a jewish mother are jewish whether or not she is religious and that is the national origin something that religious organizations like to do. again, i would assume she would agree when it comes to theat clergy, notwithstanding the federal government of the

antidiscrimination law we can't those that want to decrease because that would be too much. so how far does that go? and because of the separation of church and state but then those religious institutions and again imagine that finding john in some kinds of religious teachers are no kinds or all kinds but it is part of the process to go through to figure it out and the establishment clause so when we have time for one more question susan rayburn asks or

just talk out of the book? and then just to add on to that a history teacher was just fired to marry a man for exercises constitutional right and is considering challenging this others don't follow church teachings like getting divorced or abortion or contraceptio contraception, butut and with those enforcements of the law he not against those others or do we have no ability ever to challenge with hiring and firin firing?

>> a couple of things. one church is can hire and fire because of those protections in the statute and the hardest questions are not at stake and what is dramatic about the cases the schools could not and did not provide between the actions they took and the religious grounds of the first amendment and now they say we don't believe then prior accommodations or disabilities they are saying re never want to have older teachers or any other actions to religious state so there is a harder question about at some length you are absolutely right even if there is there is a question of reinforcement and just applying that rule.

and then you could make some headway with the differences. but all of that is in the yecontext. >> because under our theory that it is incredibly damaging and to personify that they are a camp counselor singing religious songs in the morning before they take them out for a hike are ministers then they don't have no day in court or no back and forth about any employment decision repeatedly tried to enter the first amendment rights and that is what is so troubling here. >> so the arguments in thisth

completely so why do you believe the first amendment religious clause prevents courts from adjudicating claims from those who carry out important religious functions? >> start with thee example of the camp counselor that are just teach the kids how to swing but sing songs and tells bible stories. you can imagine for religious institutions to process. >> that did the institution

but accepting camp counselors they but there is one possible understanding but in those to make religious institutions special but not a completely separate wall of church and state that we can still investigate crimes but at the same time, where people go to war for religious institution in a context whether they are a minister or the principal of a religious school or a teacher but that where

religious infusions get special immunity because we want to maintain as a separate epentity with that alternate place of allegiance and influence in society that not everything is governed by those laws and in particular the teaching of religious faith is something that needs to be under the free exercise clause with the freedom to choose who will spread your message to future generations including those without having your reason but then to go at least part of the way so the court unanimously adopted to what extent is this the

government has to stay up even protecting people and stay out of religious institution decisions based on religious faith and how far and those are the results. >> so do tell the viewers why this is important and then to prevent from adjudicating and those that carry out important notions. >> so to talk about what is at stake of those healthcare workers that have been instrumental and the last

thing we should say is that withy that institution that just by way of example of a camp counselor or it would be a quaker camp but as a camp director is a there is the counselor that's massaging the soldiers is uncomfortable she said to me actually some have secular songs some have religion so that is outrageous cannot be with our hot hard-fought civil rights so as the religious director of the camp so that is important because it is their job to pass on the faith and it

should be reflected in your title and training and that the court not that long ago said one of the criteria so were the's duties just one piece of the puzzle that's why in conjunction with the leadership conference with 60 organizations that they know the rights of workers and the family and then also to teach religion as part ofon the job and i look forward to seeing what the justices will do of where they are and how it will be john so we look forward to the outcome. >> thank you so much for an absolutely fascinating discussion this case and to

take you so much for taking the time to educating yourself. the an experiment and then to give them open mind to inform yourself. and thenbo without that constitutional issue if they will rule against the petitioner and then decide they are protected or to look the other way rightfully to tell me how you reach that constitutional conclusion and why you changed your mind that is an experiment is all of life is an experiment and then

to get to these arguments in a rigorous way tomorrow is the power of congress and the district attorney to subpoena the president be prepared to listen actively to all the oral arguments and the questions and we will learn in the spirit of justice w brandeis and reason together to align ourselves about the meaning of the constitutionn. once again thank you so much for joining us we will see you tomorrow.

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