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tv   Supreme Court Oral Argument on Religious Organization Employees ...  CSPAN  May 11, 2020 5:20pm-6:59pm EDT

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freedom and whether federal courts have a role in discrimination cases filed by employees employed by a law religious -- by a religious institution. this is an hour and 40 minutes. >> we will hear argument next in case number 19267, our lady of guadalupe a school versus agnes morrissey and the consolidated case. >> mr. chief justice and may it please the court, the separation of church and state means anything at all, it must mean a church cannot give up decisions on who should teach its religions. this is not the province of juries or judgment -- government officials who want to teach that jesus is the sum of god or want to teach what it means to say "hear o israel, the lord your one." one pickup -- is
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these cases are about who teaches the faith to schoolchildren. is easy. churches must choose those who teach their faith. that is one of the most important religious f churches must teach the faith, passing it onto to the next generation. . primary agents for teaching the catholic faith to fifth-graders, much more, they fall within the exception immunity. less fondant would have accorded court ignore all that. substituting a standard that relies on the title to determine whether there is an exception. that would wrongly elevate form over function enforce judges to decide what title some religious enough to qualify. and it would entangle churches to date. i -- no court is ever adopted respondent title tests. respondents are recycled many of the arguments that courts
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rejected years ago. the pretext inquiry, the notice requirement, the idea that freedom is association makes freedom of religion entirely unnecessary, all were raised in hosea tabor and rejected unanimously. eight years later, arguments are no more convincing. there is no reason for courts to get in the business of teaching religion. the ninth circuit should be reversed. >> counsel, you say in your brief that personnel is policy and that teachers, as part of their job personifying church values. is that enough to trigger the exception, in your case? >> i think, in this case, i don't think that is something you have to address and i don't think that would personification -- july >> i don't have to address it, but you do because i asked. [laughter] >> yes, your honor. on the basis of personification
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alone, i don't think that would necessarily mean that we would win the case. i think the right answer is that , what functions were they performing, and those functions were to teach the faith for hours on end over the course of the week. >> is it your argument, both with respect to personifying values as a factor, and was hit other functions that the teachers might form, apply in the case of teachers who are not catholic because many catholic schools hire teachers who aren't? mr. rassbach: so, i don't think it does. hosanna tabor rejected there wasn't a problem with non-lutheran teachers cannot teach lutheran kids. they get to decide who best
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performs those functions in courts should not be in the business of second-guessing that. i would point the court to some of the briefs would in talks about a difficult it would be for jewish entities if they cannot hire non-coreligionists. >> justice thomas? justice thomas: how exactly would you go about, or secular cord go about determining whether employees' duties and functions are religious or important? mr. rassbach: i think the best way to think about it is, with respect to the religious part of it, i think -- i think you can look at the list of things that this court talked about in hosanna tabor, teaching, preaching, as well as the list that was in concurrence by justice alito.
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and get that as a kind of safe harbor in terms of if one of those is present, then it clearly isn't an important religious function, but then, let's say you have something where the church, or the religious defendant is raising other thing as an important religious function, then i think you probably -- you would have to look and do some difference to the church's understanding of that. so, this is pointed out in the brief by professor mcconnell where he talks about substantial difference about the importance question and the religious question. justice tom is: thank you. >> justice ginsburg? justice ginsburg: i would appreciate your answer to two questions. one, who among the religious schools' employees, who among them are not ministers?
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the second question is one that the chief already alluded to. you do not have to be catholic to be a fifth grade teacher? how can a jewish teacher be required to model catholic faith -- how can a jewish teacher be a catholic minister? mr. rassbach: to answer both of your questions, your honor, with respect to who is not covered, i think it would include anyone who was not performing important religious functions. for example, the janitor. you have the baltimore hebrew congregation case cited in our briefing, where the janitor, although he did explain what a -- is to the schoolchildren, it still did not, did not want that
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-- that did not qualify him as a minister. and that was decided under hosanna tabor. the same thing would be true if someone is just doing the idt for the company or the school. as for -- justice ginsburg: -- [inaudible] mr. rassbach: did you say coach, your honor? yes, i don't think a code would be one. it would depend on whether the person is performing an important religious function. if they are just a coach and do no other functions, they would not come in under the exception. justice ginsburg: you mean in leading the team in an opening prayer? mr. rassbach: if they do an opening prayer, i think there would be, just saying that, just doing that would probably come
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within something like this situation with the baltimore hebrew congregation case, where it is essentially to minimus. it is not something by itself does that. i think in reality, that is not going to be a big class of cases because if they are leading a prayer before the game, they are also doing a host of other activities. >> justice breyer? justice breyer: i think that the statute itself provides for religious exemption for hiring the person of a particular religion, where that is connected the carrying on of the religious organization's activities. there is also the bona fide occupational qualification. so, i think this case has to do where a religious organization might dismiss someone on the basis of race, religion, national origin, where that isn't related to religious --
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where that isn't related to the carrying on of the religious activity. for example, person who is handicapped. so, why of the ministers -- isn't it enough to have the ministerial exemption applied to that kind of thing? that is, whether a person holds a position of religious leadership or authority? there's different kinds of evidence that would show that. so why do you need more than that? mr. rassbach: i think it is because of the establishment clause, your honor. you know, this is not just a sort of bilateral interaction between the employer on one side and the employee on the other. there is a third ox getting go red here. we have a separation of church and state. the process of teaching schoolchildren what to believe -- align
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>> i take it to my question, which do the other religious organizations need other than the ministerial exemption confined to leadership, and your answer seems to be they don't? mr. rassbach: chief justice roberts: mr. rassbach: just as prior. justice breyer: how? mr. rassbach: i do not think it or titleo q exemption vii that allows to overrule that. chief justice roberts: justice alito? justice alito: let me follow up on that. towould allow the school
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allow only a catholic to teach in this capacity, right? it would not address the question whether the school could dismiss somebody who is a catholic because that person is not teaching the faith in which the way the school was. is that a correct understanding? mr. rassbach: i think that you are right, justice alito, in this sense. hiring and firing are clearly covered by the ministerial exemption, but there are other doctrines that might come into bear, if, for example, the example used in our briefing, the employee of the synagogue school who starts wearing anti-semitic t-shirts to school, that has to be covered by other first amendment doctrines, not just the ministerial exemption.
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even if the janitor did that, it would fall under one of those other kind of doctrines, not under the ministerial exemption itself. justice alito: i took justice whyer's question to mean isn't the exemption in title 7 that allows for a religion to be a qualification for certain jobs sufficient to address the question of a teacher who teaches religion in a religiously-affiliated school? mr. rassbach: right. it is true, your honor, that the thehe -- if you -- if person is teaching -- is not -- if the bona fide -- if the bfoq exception applies here, it wouldn't actually cover most of the kinds of people that carry out the important religious functions, so there was a
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disjunct between two things. justice alito: thank you. chief justice roberts: justice sotomayor? justice sotomayor: counsel, there is a difference between a teacher who teaches a religion class and a secular school, and and a teacher who teaches religion in a religious school, what thenot sure difference is, meaning -- can you point me to anything in the evidence that the teacher here was acting any differently, working from a workbook from a for her religious class, than a teacher does in a secular school? that is my first question. my second question is, i think what is being confused here is that you are asking for an exception to law that is broader than the ministerial exception generally, and broader that is necessary to protect the church.
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the two teachers at issue here are not claiming that they were fired because the school thought they were teaching religion wrong. says she was fired because she came down with cancer and was fired for a medical condition. the other was for age. she had been there for many years, and all of a sudden, she reaches a certain age and she is fired. so, you're asking for an exception to the family of medical leave act, to wage and hourly laws, to all sorts of laws, including breach of contract, because at least one of the schools here, contract with the teacher says will they won't discriminate because of the teacher's age or disability. so you are asking for something broader than giving the schools the power to hire or fire
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certain kinds of people because of how they teach their religion or don't teach it, and you haven't explained to me why it is necessary. i don't understand what leadership role or proselytizing role these teachers played in simply teaching about religion. mr. rassbach: your honor, they absolutely were doing much more than teaching about religion . they were teaching it, and they were proselytizing. their job, number in their one, overriding commitment, was to teach these kids to become catholic, and to believe in the catholic faith. i don't -- i am not sure i agree with the premise of the question. with respect to, you know, religious reasons, first of all, you know, hosanna tabor rejected that exact same argument and said it missed the point.
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f the ministerial the reason it misted was because it is inherently -- the reason it missed it was because it is -- chief justice roberts: thank you. justice kagan? justice kagan: i am hoping you can answer the hypotheticals in a few words. like yes, he qualifies, no, he doesn't qualify. here is the first one. a math teacher who is told to teach something about judaism for 10 minutes a week? mr. rassbach: if he is teaching at diversion only? ally? justice kagan that is all you know about them. mr. rassbach: then, i would say probably not. justice kagan: ok.
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next is someone -- you mentioned at the beginning of your remarks it takes about 20 seconds to , say. a math teacher who was told to begin every class with leading the shabbat? mr. rassbach: i don't think that is likely because -- justice kagan: a math teacher who was told to embody jewish values and infuse instruction with jewish value? mr. rassbach: if it is that alone, probably not, but depends -- justice kagan: i really am asking these things alone. a nurse at a catholic hospital, who prays with sick patients, and is told otherwise to attend to their religious needs? mr. rassbach: i think a nurse doing that kind of counseling and prayer may fall within the exception. justice kagan: may fall within it. ok. a press communication staff or who prepares press releases for religious institution of all kinds that they need? mr. rassbach: that should fall
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within it because it is communication -- that should fall within it because it is an exemption. justice kagan: ok, and outpatient who urges someone to reconnect with their faith community? mr. rassbach: that would probably be, but it depends on how much connecting there is. antice kagan: ok, someone employee at a soup kitchen who distributes religious literature and leads grace before a meal? mr. rassbach: my guess is that eminimus,thd under the same kind of the same case i mentioned earlier. justice kagan: a church organist who provides musical accompaniment for select services? mr. rassbach: i think that would
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fall within it, because that is an important religious function, and that is the main job. justice kagan a cook who is not preparesbut kosher-compliant meals for children at a jewish school? mr. rassbach: no. justice kagan: ok. you got through the mall. thank you. -- you got through them all. thank you. what is the connection? mr. rassbach: we laid it out in our briefing. what is this person doing, performing on behalf of this religious body? what is the function they are performing on behalf of that body? it is not all religious exercise. it is a subset of the kind of religious exercises that are out there. it is the kind of things that were listed in the alito concurrence and disorder verbs we teased out in hosanna-tabor, which is teaching, preaching, guiding, communicating, things that are crucial to what you do as a religious organization.
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chief justice roberts: justice gorsuch? justice gorsuch: i would like to follow-up on justice kagan's line of questioning, i would like to respond on a previous question on that religious activities would not qualify. you are asking a secular court to make that judgment. even when some deference is given to a religious organization in a qualified, immunity sort of way or otherwise, you're still asking us to make a judgment between who qualifies as a minister and who does not. and i am wondering, does that pose some problems for you? and for your clients some of these cases? i could easily see as school in wichita they are teaching these kids to become apart of a faith. that everyone is a minister and
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not just limited to clergy. what do we do about that? the next case is going to be a school in which a janitor takes a pledge, or a school bus driver, or a coach, and the all believe sincerely they are all ministers, and you will have us tell them know, that is too de minimis. mr. rassbach: i think is apart of the issue with the use of the word minister. this is a kind of immunity that goes to the kind of things that are done, then things you would never contemplate having a governmental entity do. therefore, you know, it is true that they may well be within their faith tradition a minister, but the term minister is explained in one of the colloquies that justice scalia had in hosanna-tabor, it is a legal term here. it arose in the 1955 rayburn case. i think there is a real -- you have to see it as a subset of the kinds of things done on
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behalf of the religious community that make it distinctive. it will not cover the gas station attendant, or the bus driver. it has to go to those functions that make religious, religious communities distinctive within our society. chief justice roberts: justice kavanaugh? good morning, mr. rassbach. do you think the exception applies to teachers who teach religious doctrine, or teachers perhaps more broadly, who teach religious values? how would you answer that question? would of the two are you looking at? mr. rassbach: if a teacher is teaching religion, devotional e, , doctrine values, what have you, or religious practices, then that teacher is going to
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come within that exception. this is an establishment clause rooted doctrine. if it is something we will start to feel nervous about having any public school done by public school teachers, then how can you turn around and reach into the religious, private/religious school, and have the government tell them how to arrange those affairs? justice kavanaugh: the number of questions far has gone to the limits, if you were to win this case. we are thinking about where it would go. say the english teacher who sprinkles in references to matthew 25 and feed the hungry, or the art teacher who talks about art in the vatican, or the football coach who says a prayer before every practice and game. the basketball coach who says, "our lady of victory, pray for us." those kinds of things are definitely instilling religious values. are those people therefore covered or not covered? mr. rassbach: i think, in most cases, they probably -- if it is only that.
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if it is just doing the one thing, the sort of saying grace before meals situation, that could be -- that probably would fall outside of the exception , because it is not at the heart of what they are doing, but i don't think there is actually a whole of situations where that is actually the only thing that such coaches are teachers -- justice kavanaugh: i am not sure about that. i guess the question that justice thomas and justice gorsuch have is -- are we going to have litigation over what particular students take out a particular coaches? the physics teacher that has the crucifix on the wall is one thing. if you have a physics teacher that adds a sermon to every class, that is a different one. mr. rassbach: important religious functions not just every religious exercise, but they are a certain subset that a person is performing, as in a
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religious community, and that main part of the their job, so it cannot be something where it is just, you know, you have the physics teacher that has a crucifix on the wall. that is one thing. if you have a physics teacher that adds a sermon to every class, that is a different one. chief justice roberts: thank you, counsel. ms. wagner? ms. wagner? er: thank you, and may itustice, please the court, there are three proposed proposes to the exception on the table. first, the employee's function has been central to the analysis.
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second, in the ninth circuit, an employer must check off one or more at morality is even if the religious function is clear. and third, the court should go even further and make formalities the key, with functions at the cross check. the first approach is the right one. the touchstone of the exception should be, whether an employee performs important religious functions. the first amendment interests at stake, and because, critically, more neutral among different religions. here we are talking about teachers of religious doctrines at a religious school. teachersanna-tabor, are ministering to their students by teaching them how and why to be catholic. they should follow exception regardless of what the school tells them. chief justice roberts: counsel, looks at all of the factors in the case and the issue now seems to be what emphasis you should put on one of those factors, religious function, and what emphasis on a different one, the ministerial title. in addressing the question, i
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would like to repeat justice gorsuch's question to you as a representative of the government. is a court supposed to determine what is a significant religious function and what is an insignificant one? ms. wegner: well, mr. chief justice, with respect to your first question, we do not -- we think it would be up -- and appropriate methodology here. we think the reason why a function from this approach, is as i mentioned, it advances the purposes identified in hosanna-tabor. the way that one would return whether this is an important religious function starts by looking at categories set out. in hosanna-tabor. and if the court would allow us to pick it up as mentioned by justice, then we are talking about things like preaching, teaching, worship, and rituals. it is a pretty defined set that we think would cover the cases in the area.
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so it is not going to be in discriminant analysis. just two underscore that, this is a concept has been around in the lower courts since the 1980's. and so, again, it is not something we are inventing here or that the courts will struggle significantly struggle with. chief justice roberts: thank you, counsel. justice thomas? justice thomas: yes, counsel, my question is similar to that. i am perplexed as to what you do , for example, with a chemistry teacher who starts class with a hail mary, or the chemistry teacher who is a nun who starts chemistry class with a hail mary, or the lay teacher who teaches religion but does it in a straightforward and objective way.
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how would you handle those? i do not see what standards a secular court would use to determine which of those is an important duty or function, a religious duty or function. ms. wegner: sure, justice thomas. with that the important religious functions are those of the type i have mentioned before. then the question and some of these cases that have been an essentialisn't part of a person's job, or as patricia called it, a minimal de minimis part of a person's job. if the job is in one of your hypotheticals, then of course the answer is yes. if the job is teaching something in a secular way and we are talking about one prayer, the answer may not be yes. there have been three main buckets of recurring claims. sends hosanna-tabor, and that has been principals and teachers
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of religious schools, worship musicians, and leaders of congregations. those are the ministerial exception claims that we see again and again. we think those would all be resolved, or at least the court would set a clear path forward if it were to adopt a function -focused approach. justice thomas: thank you. chief justice roberts: justice ginsburg? justice ginsburg: the breadth of the exemptions list is staggering. these people are exempt from all anti-discrimination laws. if i would've taken example, suppose a teacher who does everything that the two teachers in these cases do, as a faith leader, also reports a student's complaint of sexual harassment by a priest and is terminated. she has no remedy? ms. wegner: justice ginsburg, i think that question goes to what
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is covered i exception as opposed to the who falls within it. and on the what is covered, we are simply asking for the same thing this court decided in hosanna-tabor, and they did not specifically decide for things like retaliation of abuse reported would be covered. what it did decide is that employment discrimination claims that involved hiring and firing of an employee necessarily went go to a religious organization's ability to control and that those claims are categorically precluded. we provide the same rules and here, and then, what is the appropriate methodology for determining that it is one who ministers to the faithful? justice ginsburg: so her having cancer has nothing to do with the performance of religious functions. she needs time off, and the government says she should have time off to take care of her disease. yes?
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ms. wegner: yes, justice ginsburg, that is the answer, but this court said in hosanna-tabor that requiring a particular religious reason misses the point of her religious exemption and that it really is categorical related to category ofin the the discrimination claims related to hiring and firing. justice ginsburg: if it is categorical, why doesn't it care if a teacher who reports a student's claim of abuse by a priest? again, i think there may well be arguments with that retaliation claim would have to be covered. my point is the court avoided that in hosanna-tabor, and we can avoid that here. justice ginsburg: it would be the same as what was reported at the school, sister mary margaret had been stealing from the school, from the school's till
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regularly to pay for her , gambling excursions to las vegas. the teacher reports that and she is terminated. ms. wegner: so, justice ginsburg, again, all of this relates to what is the potential scope and what are the types of claims and, in particular, retaliation claims, for which the ministerial exception would apply. i think there are logical reasons why maybe some of those claims could come in, but we think the better approach -- excuse me, why maybe some of those claims would be covered by the ministerial exception, but we think the better approach would be covered by hosanna-tabor, and say that we do not need to decide those outlier cases now. we're deciding things that relate to the employee-employer relationship and a hiring, firing claim related to -- chief justice roberts: thank you. justice breyer? justice breyer: counsel, i would like to ask you about your
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as i understand it, this is -- the kinds of claims that are brought are not about religion. there is a bfoq, and there is the religious exemption. and taken together, where the organization do something related to religion, and that is why they dismissed the person, they are likely to win, if the case is brought in the first place. we're talking about the kinds of things, anyway, that justice ginsburg raised. should there be an immunity there? i think the court has previously decided, yes, there should be, when the person is a minister, because in that situation, do not even get into it. , court, do not even get into it. so who falls within the ministry? now, i can say, easily, a person
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of leadership or authority. that is not going to help much. so when you take your categorical approach, minister, person of leadership, person of authority, what do you want to add? how do explain to people what , in your view what that should , amount to? ms. wegner: well, your honor, i think you need to add a come at a minimum the other categories , that you discussed in hosanna-tabor. it does not apply to leaders of congregation, it applies to other employees who preach the belief, teach their faith, and carry out their mission. we think at a minimum, teaching the faith during the week to schoolchildren and not just those preaching the faith on the weekend to adults, are included in the category. when we are talking about what it means to carry out the religion's mission, then we think there are other categories, some hopefully laid out by justice alito worship, , like leadership, and rituals that would also come in. justice breyer: why?
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it to a plain teacher who teaches religion, too, why is it necessary to keep out of it entirely, even if the teacher or the administrator or whoever it is does discriminate on the basis of handicap? ms. wegner: because once you have made the decision that someone is performing a religious function, and this court said in hosanna-tabor, that getting in to why they are misses the point. at that point, the organization has to be capable of deciding who will minister to the faithful, who is going to fulfill the role of teaching catholic schoolchildren that jesus is the son of god and god created the world, and this is the appropriate way to be catholic. justice breyer: thank you. chief justice roberts: justice alito? justice alito: what do you think is the relevance of titles in this inquiry? ms. wegner: justice alito, we
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think with all of the considerations this court mentioned in hosanna-tabor may be relevant, and whether someone performs a religious function. and i think to do the opposite, to require a title as a separate checkbox that needs to be ticked off is going to create a real problem in terms of neutrality among religions. some faiths have those sorts of formalities. some faiths do not. to take a particularly salient example is that the lutheran church in hosanna-tabor had available to it things like teachers and commissions ministers, and those types of non-ordained ministerial type -sounding titles are not used by a lot of faiths, in particular, catholicism, judaism, and others. that is why we think the title and existence of it can be used to help understand someone's religious role but not as a freestanding inquiry.
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justice alito: so how does it help to understand a person's role? you have people who do exactly two the same thing in two different religiously-affiliated schools, but one has a title, and the other one does not have a title, other than title of teacher. why should the absence or presence of this title make any difference? ms. wegner: so it shouldn't, in a circumstance where we know clearly what individuals are doing. it is a little harder to understand, based on the facts, whether someone plays an important religious function and if the religion gives out titles for different types of religious functions, then perhaps a could shed some light on the question. but, no, in a circumstance like we have here were a teacher performs the exact same function
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that she did in hosanna-tabor, then we do not think the absence of the title should make a difference. chief justice roberts: thank you, counsel. justice sotomayor. justice sotomayor: counsel, in your brief, you are encouraging us not just to define who is a minister by appropriate religious function, but you're asking us to defer to religious the religious organizations' determination of what is an important religious function. that is a recipe for saying, the teacher who says a prayer at the beginning of a class, every teacher, whether it is a math teacher, a computer teacher, a gym teacher, they are doing an important religious function, because all the school has to number two, i thought what hosanna-tabor, our prior case, was recognizing is that when you are talking about a leader, a person who stewards a religion,
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that they are entitled to this absolution. you are now absolution from liability in law. you are now suggesting that we as judges have an obligation to expand the exemption we created in law. i thought that was was congress that would do that and not us. as justice breyer indicated, they have already done it. you are asking us to broaden that to anyone whose job is now primarily religious in any way. for decades, the lower courts, most of them, have not used anything you are proposing.
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they are using primarily religious, not important, but primera's -- primarily religious functions. i do not think that teachers who are hired as lay teachers, not as religious teachers, it is hard to see how they qualify. as primarily religious leaders. >> on your first question, when we are about confined to religious organizations, we think that this court has already outlined objectively what would be considered the class of important religious functions. what we're talking about is a rare case where there is a dispute about whether it is important to worship, whether a hebrew teacher at a jewish school should teach the jewish faith. we agree that the exception applies to those who perform
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other functions involving stewardship and the personification of the faith. that is exactly what teachers do. the question is the methodology. is this based on what you do, or what you are called? justice kagan: i was struck by the emphasis your brief gave on the idea that it was not important whether an individual is not a member of a good take -- of a particular faith. as i understood the central premise of the exception, it is that there were certain individuals within faith communities who have a particularly distinctive special role about how to propagate the faith. if a position can be filled by any person and not by a member of the faith, isn't that a good sign that the employee does not have that special role within the religious community? ms. ratner: no, i don't think so. there are several reasons. most important one is religious judgment about who is qualified to perform certain important
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religious functions and how much of the creed of that religion you need to share to perform that function. the second is that this is really entangling inquiry to engage in practice and that the result will have a disproportionate effect on minority religions. these are not just abstract questions. one of the schools said it preferred catholic teachers but it would make exceptions for certain other protestant religions like lutherans. i do not know whether to consider that partial coreligionists requirement, i do not know whether that is different from a reformed jewett -- jewish school that would hire an orthodox jewish teacher. i don't think that's a row the court wants to go down, particularly as it has concerns about others potentially entangling parts of this analysis.
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justice kagan: in some of your answers, you have talked about the language in hosanna-tabor which was leading, preaching, teaching. of course, hosanna-tabor connected that up with training , title, and formal commissioning. when you take all of those things away and you're left with the terms preaching and teaching, that is when you are left with questions of how much, of what kind, any prayer, any amount of teaching? how would we deal with that? ms. ratner: i think the way to do it that is by understanding that there is a baseline here. the religious functions of the type discussed in hosanna-tabor have to be in a meaningful part of these duties. a lot of these are outlier hypotheticals that are not circumstances where this even has arisen.
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justice gorsuch: under the first amendment, we have emphasized repeatedly that we do not inquire as to how important the plaintiffs religious believe is, or how central it is to their faith. we protect any sincerely held religious belief precisely because we are worried about entangling courts in making religious judgments, and discriminating against those who may have views about what is important and different from our own. it seems to me that instead of pursuing that line of argument, and suggesting that the sincerely held religious belief about who is a minister should control, you're asking the court to involve itself in deciding for itself who is not important minister. in the teaching of religion.
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doesn't that create the sort of entanglement problems that we try to avoid elsewhere? and discriminate against minority religions that have different views than you are i might have? you reject all of these hypotheticals have speculative or have not yet really is risen, but the very attitude proposed seems to me to invite them. ms. ratner: a couple of points. i think the reason we have not advocated for a completely deferential approach is the reason alluded to, and that is the exception -- different religions may have different views on who constitutes a minister under that particular faith. that does not necessarily map onto the fear that this court has said has to be left to religious organizations. we do not think there is a way to entirely extricate yourself
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from the problem so the question becomes, what is the methodology? the worry is that discriminating among religions and disadvantaging minority religions, that is a significantly greater worry if we are talking about things like training, then if we're using generalized functional approach that looks at the type of things religion usually operates with. >> that is exactly the problem, usually. that discriminates in the favor of majority conceptions of teaching. why could we not just say, sincerely held religious belief should control, just like we do everywhere else? ms. ratner: again, your honor, everywhere else, we are talking about sincerely held beliefs. here, we are talking about a constitutional protection this
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court has said is limited to those ministering to the faithful or who personify the church, and we do not think that will necessarily map onto the particular definitions of him minister that one organization may use. justice kavanaugh: thank you, chief justice. good afternoon. i want to confirm your view that the roots of the exception are the constitution, not statute. the professor first two -- refers to principal religious autonomy rooted in the establishment clause. is that correct? ms. ratner: that is correct. i do not see how you could read the course decision to adopt -- the court decision to adopt this as some sort of statutory analysis in the same vein as catholic bishop. i think it is clearly first amendment in that case. justice kavanaugh: you used the
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phrase, teaching the faith. and if your side would prevail in this case, what does teaching the faith mean and a similar question that i asked her colleague about, instilling religious values and not just teaching specific doctrine, school can have a creed of instilling the value of being a person for all students and all the teachers and coaches are told to underscore the message and how they go about instructing and coaching students, that is the religious value and they're all told to pursue that in different ways. how do we analyze a case like that? i think those cases are going to be more difficult. it is a case where you are talking about the teaching of religious doctrine on a near daily basis, as we have here, and as the court has in hosanna-tabor. if you are talking about
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modeling the faith, i think you need to do analysis about whether, in practice, this particular position is expected to transmit those through that way. i would not say that categorically, those individuals are either outer in. it will depend on what it means in practice. i just want to underscore that the ninth circuit's position is really an outlier position. all of his concerns about repercussions, we're just asking you to eliminate the decision that has deviated from the general focus in the lower courts function-based approach. >> thank you. two minutes for rebuttal. >> your honor -- [laughter] >> you do not have anything just yet.
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>> thank you, mr. chief justice. may it please the court. i think the first half of the argument is illustrative of my problems with the important the dysfunction on the other side. in terms of consequences, it was readily admitted that all nurses in catholic hospitals would be covered and as justice gorsuch illustrated. i want to focus on the narrower argument in the case that i hear the schools and government making. that is that these particular teachers should be considered ministers, though they did not have to be catholic to have their job, simply because their job included teaching religion. our position is to reject this contention for three reasons. the school's argument would strip more than 300,000 teachers in religious schools across the country, employment law protections.
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necessarily included in the number are teachers who teach so-called secular classes. this is been a focus of a lot of questions this morning. the court itself, has said in no uncertain terms, there's no way to distinguish a teacher who teaches religion in a religious school from a teacher who teaches general curriculum or a secular course infused with religion. and from the u.s. conference of catholic ships to the american jewish committee, they are in absolute pains to underscore this reality. the emphasis -- they emphasized that all teachers and religious schools infuse instruction with religious doctrine, regardless of whether they teach religious
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order secular subjects, not just mad and science. this already is readily apparent, but let me give you a couple more. imagine an english teacher that teaches rhetoric using the sermon on the mount, or a history teacher that describes the equity us -- exodus from egypt. or the science teacher who teaches creationism or intelligent design. i do not understand what the other side means when they talk about the minimus teaching of religion, or outlier, all teachers in religious schools are necessarily in play in this case. >> i think it is fair to describe your position compared to friends on the other side, as more formalistic in using that word in a non-pejorative sense. you are much more focused on titles, i would think, and whether or not you or performing religious functions. my concern is one raised by the opinion that fits put different stock in titles and some that -- different faiths put different stock in titles and some that are more hierarchical, and the second concern is that
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they are pretty manipulable. if you want broad protection, just start handing out titles and everybody would be covered. i would like your reaction to that. >> to be clear, the court should adhere to the multifactor framework laid out, which starts with what we would call objective factors. one of the factors is also things like the individuals training, if they have to be of the same religion, etc. we think there are good places for courts to start. the court has mentioned the entanglement problem here are extraordinary. once the court returns to religious doctrine and how religious values come into play. mr. chief justice, you asked about manipulation. entanglement problem here are extraordinary.i think you have e study in the last eight years since this was announced, you have seen pages 35 and 37 in our brief, religious employers looking to claim broad
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protection of the ministerial exception are being told to put out the importance of the religious function of employees and assign daily prayer activities in their life. they are not being given special titles. the titles themselves even on their own terms are meaningful things. you can look across all sectors of american society, including churches, to see that. we would not rely solely on titles. we would just say it is important to start with titles. just like in hosanna-tabor. justice thomas: thank you. just first a general question. would exactly what these teachers were doing be a violation, if they did it in a public school? a violation of the establishment clause if they did it in a public school? mr. fisher: i think there is a
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yes and no answer to that. some of the religious teaches step over the line, but it is commonplace for religion to be taught in public schools. let me clarify one thing that came up in the first half of the argument about teaching devotional in a religious school. the document, lay teachers in catholic schools, which is kind of the touch point for what it means to teach catholicism as a layperson, even when they are in public schools, they should devotional it is not just the idea that a catholic is to witness the faith or even persuade people to become catholic. that would be somehow different. justice thomas: it is my understanding they actually led them from time to time in prayer or took them to service, things like that. that is what i mean. not the minimal performance of their duty, but the sort of
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standard week-to-week performance. could they do that at the local public school? mr. fisher: i think the answer to that is no. prayer and worship would step over the line, but i do not think it tells you anything meaningful in terms of what a minister is because if prayer and worship were enough, then you would have not just the football coach or the administrator that gives the morning prayer over the loudspeaker at school, but you have nurses in catholic hospitals, teenagers who are camp counselors. prayer is one thing to look at but we do not think it is enough to make somebody a minister. thomas: do you think it odd that things that would violate the establishment cause -- establishment clause in the public school are not considered religious enough for a free exercise protection one done in
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a parochial school? mr. fisher: i wholeheartedly agree that free exercise protection is available in this case. i want to make clear that any religious reason for firing these teachers or for otherwise regulating the teachers would be entitled to the highest free exercise protection. the other side needs to prove that there is an establishment clause violation in this case going forward. we think that is something that requires more than just leading people in prayer. it requires being a leader in the church, not just being a member, but a person who, the stewardship of the congregation has been placed. that is what raises the establishment clause problem. justice thomas: you have relied somewhat on the ministerial designation. how would you determine that, especially when we look at nonhierarchical religions that
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do not use pastor, and that sort of designation? mr. fisher: i think the best way to do that in a religion that did not use the kinds of titles the catholic church and the lutheran church use would be to do what judge wilkinson did. which is to say if a person is performing all of the same things as what would typically come with a title, then that may well be relevant. and i hasten to and i hasten to add, i just do not want to give the appearance that our test relies simply on title. was the training reflected in that title? even if religion is not hierarchical, you are most likely going to have significant religious training in play when you do with a religious leader in the congregation and the like. chief justice roberts: justice ginsburg.
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justice ginsburg: i have the same question you are answering about. discriminating against some hierarchical religions, and you are saying even those people have special training that distinguishes them from members of the congregation? mr. fisher: i think that will be true quite often. i think the raburn case is a very good example in that respect, the foundational case for the concept of ministerial exception. one thing only to add, i think it is correct and we agree with the premise that different religions ought to be treated equally, but i do not think this should require the courts to have all of the people perform the same functions across all religions to be treated the same. if i could offer a rough analogy. think about the 11th amendment
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immunity that applies to states. different states structure their own government differently. they have different administrative bodies and some have bigger administrative bodies than others. different people in different states that perform roughly the same thing will sometimes trigger the 11th amendment immunity and sometimes not. areouldn't say that we treating those states unequally. we respect the decision the states have made. and so, too, here. we are respect in the decisions that churches themselves make about how to structure hierarchies, in whom to put their faith. justice ginsburg: you don't seem to make much out of what i find disturbing in all of this, that a prison could be fired or refuse to be hired for reasons that have nothing to do with
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religion, like needing to take care of chemotherapy. mr. fisher: i do not want to give that impression at all. we think that is the center of the case in terms of how this court should think about it. it is not just that there are statute ofin the hiring people of the same faith, but any time a religious employer wants to hire, fire, or take other employment actions for religious reasons, the statutes themselves let them do that. if for some reason, even then the statute doesn't give them what they want, they can raise a free exercise clause. the only place that exception matters is the case where religion is not acting for religious reasons. this case, as you said, with the cancer treatment and being fired because she alleges she got too
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old, those are the cases where the ministerial exception matters. stripped of all the labels, i think we could make this case more complicated than it is. than it is. to think about the the best way to think about the case is to say when does the church, a religious employer, require immunity to hire and fire people for whatever reason they want, whether it be raised -- race discrimination, whether it be any other thing that does not have anything to do with their religion, and when, on the other hand, is it enough to say, of course you have an important stake to have functions and duties, and you are allowed to fire them and disciplined them. -- or discipline them. you simply can't do it for nonreligious reasons. we think when it comes to lay teachers, the 300,000 lay teachers in catholic schools and other religious schools in
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catholic schools around the country, not to mention the 200,000 more of teachers and colleges, when we think about those people, it is enough to serve the religions legitimate interests to say, if you have a problem with how they teach religion or how they are otherwise upholding themselves, you can hire them or fire them. say, we don't care when you come in -- but we still give immunity. we think that is a bridge too far. justice ginsburg: thank you. justice breyer: you said we are looking for, where is that the court should really stay out with respect to religion, that we will not even look at this defendant that committed a violation that has nothing to do with religion. justice ginsburg went on about that. all right.
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that is what the case does hold. but who are those people? we call them ministers, people in positions of leadership or authority. everyone has that kind of position in some religions. other religions, no. people think without education are the one to be the ministers. then that circumstance and desire for us not to metal too much, whatddle too advice can you give us? what should we write? we start by saying leadership or authority, but what else can we write? what should we write to guide the lower court so we do not meddle too much?
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mr. fisher: let me answer that, first in terms of theory, and second in terms of courts. in terms of theory, i think you're right to be concerned about entanglement. that is why we say the first thing you should write is the same thing you wrote of the beginning of hosanna-tabor, which is that status can be gleaned from objective factors, that is where courts ought to look. the designations that religions themselves make. when that is not a conclusive answer, we can look at functions but we have to be very careful when we do and that ought not drive the analysis. i do not even think in the entire first half of the argument i ever heard a meaningful definition of what's -- what an important religious function is. i respectfully submit you will have impossible entanglement problems. even they can concede the
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janitor, maybe the administrator, though the has been argued by other religious institutions in the past but they seem to concede it. there will have to be a line drawn so let me tell you in terms of practical terms what is important. before hosanna tabor, there has been several decades of exception in the lower courts. the position we are advocating today is consistent with the overwhelming weight of the authority. i cannot only give you my theory but lend you a practical insurer -- assurance that for several decades, and these are all gathered in footnote one of our brief, courts consistently held that lay teachers and religious -- in religious schools were outside of the ministerial exception. that line was durable and workable and the federal government brought many of those cases and established that rule. and had the rule across several ministrations for many decades.
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like the case where you have a hard line to draw, you can take some comfort and decades of experience for the government 's own position that prevailed until a moment of this case right now. i think that should help bolster my position in practical terms. if you write an opinion that says all important religious functions trigger the ministerial exception, i do not think there is a way to escape you have cases with nurses, the football coaches, the summer counselors. the only thing the other side says to that in the brief is, those cases have not been brought so much. but my answer is that it shows how revolutionary their case would be. there is no good answer to those cases. and it was said this morning those nurses would be covered. there were several cases were nurses brought discrimination cases and the exception was not even raised in those cases. now you're talking about hundreds of thousands of nurses being stripped of protections.
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and last thing i will send her -- say in regard to practical consequences. we are not just talking about employment discrimination laws here. i know the way that hosanna tabor was tailored was properly said. fair laborg to the standards act, equal pay act, many other statutes, and many states have laws that require a teacher to have a certain amount of education or training, certain criminal background checks or the like. i do not see how you could uphold the constitutionality of any of those requirements under the other sides test. that the government can have nothing to do with the reasons those people are hired for or fired for or what their qualifications might be. justice alito: this issue could
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come up in many different contexts, as the question has brought out. what is before us is a specific, or two specific cases, and it or two specific similar cases and it has to do with teachers religiously affiliated elementary school. these teachers taught in a secondary school and they one subject and that is religion. students came for 50 minutes a day and they had a religious class and it was out to by these teachers. would they qualify? is fisher: justice alito, your assumption in that hypothetical that those teachers ofe no other indicia ministerial status, that they don't have special training or like?or the justice alito: they have the training that the school thinks are notcient and they
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labeled minister. do you appreciate that the very term, minister, treats different differently. it is a predominantly christian, protestant term. it to other religions, its application less clear. and so they do one thing. they teach religion and they have the title of teacher of religion in a catholic school. qualify? mr. fisher: justice alito, the reason i ask and i apologize is think it's going to be an uncommon situation where that other is going to have no formal indicia of ministerial status. i'm sorry. if you had that sort of a case, we think that person would a minister still but you don't have to decide that here, obviously. would thatto: why person not be a minister? mr. fisher: the person wouldn't
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case, atster in that least arguably, because even then the person would not be position of spiritual leadership of the congregation thewe think that's what core of the ministeria exception is about. justice alito: why is that the of -- i would be more comfortable if we jettisoned the whole term "ministerial exception" because i do think but why isminatory there less of a religious autonomy issue and why is there very central religious autonomy issue there? ae function of teaching isigion to new generations central. mr. fisher: justice alito, i minuteeny that for one and i think that is why the schools have every ability to exercise arguments, because of the absolute sen trallity of that function. and i'm happy to jettison the ministerial exception label but
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what we're talking about is when immune, whatls some courts called immunity and you need establishment clause concerns in play. thinkll fairness, i you've identified what i would think of as the edge case, which teachese where somebody religion full-time as their job but doesn't have any other considerations in play. justice alito: what is the fundamental difference between that situation and the situation of an elementary school teacher includings everything religion and for a school that religious body? the teaching of religion is central. very reason why these schools are set up, otherwise there would be no reason. to thedents could go public school and not have to pay any tuition. so it's central to their mission that it is done by -- in an elementary school by
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teacher who teaches everything including religion, why should that make a whether it's structured that way or it's aructured as it might be in secondary school? mr. fisher: i think the difference is when somebody only religion and nothing else, their stature is of an expert on the faith. when you have a general curriculum teacher who happens workbook for 40 minutes a day and teach religion during that segment of the day, person isn't seen, i don't think, as holding the same churchof position in hierarchy in terms of church leadership and remember, justice alito, i don't think there's any to distinguish the general curriculum teacher who teaches religion 40 minutes a day from the science teacher, the history teacher, the english teacher who probably once you number of minutes in that day where religion comes into play is teaching at least religion iforth of not anything more so in terms of consequences, justice alito, you small step from a very
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group of teachers in schools to hundreds of thousands of teachers in k through 12 across the country, maybe hundreds of thousands more. justice alito: you may or may not take the step. are not at teachers issue here. what is at issue is an whoentary school teacher teaches religion as well as other things. mr. fisher: in terms of numbers, there you have about 150,000 teachers in front of you in this case as the lower court hozanna developed for taber were never considered to be ministers. think there's any meaningful way to distinguish, as the catholic bishop's brief jewish committee brief says, all these cases are on the me, there's no way to distinguish somebody who teaches a secular subject with religion infused from someone who teaches as my client did in
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this case. justice sotomayor? justice sotomayor: mr. fisher, i governmentthe supported mrs. biel just two circuito in the ninth and argued that merely teaching per week, spent teaching religion, that that qualify her as a minister. it's now said something -- said snag -- that has surprise which is she seems to be saying that the ninth circuit got this wrong becausee asy were using labels tallismatic. did you understand that argument by her and if you did, why is she wrong? in fisher: well, i think terms of what the ninth circuit did, the court was clear to say we're not a simply resting labeln the absence of the
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minister but we're looking at all the factors in taber itself saying that overall circumstances are not enough here. circuit also said in its opinion that no other court had deemed teachers like these ministers ever before, that had so little religious leadership as part of their duties. and the ninth circuit was right about that. right even after hozanna taber. case that's one close out of the seventh circuit and ninth circuit to distinguish but more generally the ninth circuit outcome is not just what the government asked governmentt the itself asked for for decades going back to president reagan's administration, is that lay teachers who teach some religion are on one side of the scale and other people who are core spiritual leaders in seminary schools and the like are on the side of the scale. so it really is a sea change
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teachers, leaving everything else aside, it is truly a sea change that is being side hereby the other today in terms of how teachers in schools are classified and any employmentve rights at all or in fact whether at least if you follow the way haveower courts implemented the ministerial havetion, you basically employment law-free zones in all religious schools. justice sotomayor: the fourth circuit used the primarily test.ous function you haven't adopted that or even spoke about it in your brief. can you tell me what you think the strengths or limits of that test might be? mr. fisher: justice sotomayor, we think that taber is consistent with rayburn and with our test. what rayburn did is it dealt personcase where a applied for a position called a -- pastoral care position and even though the woman in the case who applied for
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position didn't have a ministerial title, the judge that because the way the seventhas structured, day adventist, doesn't give women titles, couldn't be determinant of that and we agree with that. we agree that function should be analysis to make sure you're not disadvantaging minority religions. with what judge wilkinson said. the disconnect from what you're hearing is that it's true the other side can quotes out of rayburn and quotes before and after taber should be whaton controls but i think if you look at all those cases, those are cases where there truly were exceptional circumstances at specialre there were reasons like in rayburn why the more objective factors didn't provide the right answer and again, we agree that then function does have an enhanced
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role in that circumstance. to answer they question, justice sotomayor, is foray remember we're asking what lower courts have done on the ground. just make it concrete and say teachers' status for the decades up and after taber and the status was non-ministers and there's no way concreteile those holdings with the other side's view that first of all the controlling inquiry is whether somebody performs any important religious functions and secondly now the government and petitioners themselves say is to the religious employers themselves as to that question. if that were the real test, you have millions of people falling within the ministerial exception and i don't see how whatan make any sense of the lower courts had done for test.s if that were the >> thank you, justice kagan?
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justice kagan: mr. fisher, i'd like to take you back to justice alito's questions because some me.hat you said surprised with respect to a teacher who is teacher of religion, teaching religious doctrine, teaching religious practice, religious texts, any of those things. taber, have thought that even though it has the thing about commissionerring and title forth, you know, thinks of those people whose job it is to teach religion and to nextally bring up the generation in important understandings of religious and practice, that those people would be covered to you said no so i want say, why? mr. fisher: justice kagan, i is i thinki said that's the hardest case, for me that's the edge case and i can both ways that i really wouldn't have to win here. i think what i really want to do that those you
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people are different from the lay teachers that i represent here. answer your question directly, i do think that somebody who did only that had no other had tog, title, or even be of the same state to perform couldob, i think you still question whether that person is central to the establishment of religion. be verythere would strong free exercise interests at play there but that particular person i don't think is involved with establishing the church but as i said, i can disagree you with me on that and draw the line between people who teach full-time and people who are otherwise lay teachers orching a general curriculum a secular subject with religion infused. justice kagan: where do we draw that line, then? suppose i think the full-time byigion teacher is protected this exemption. then i think justice alito well, infair point --
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an elementary school maybe you have to teach other subjects, maybe it's a halftime religious teacher or quarter time, and where do we draw that line? mr. fisher: i think that line holds up pretty well, justice in terms of just the basic idea that somebody teaching religion all day is going to be different than somebody teaching is just for a small part of the day as part of a general curriculum and maybe this is the way to think about it, justice kagan. even if you strip away all the other objective factors, the hire somebodyg to under different criteria with a theerent idea in mind to be religion teacher in a school compared to somebody who's going curriculumeneral teacher. so, yes, religion in a catholic school or other religious school be particularly important but just like science and math and all the other subjects, the school isn't necessarily going to think this person needs to be a leader and expert in that
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position.old the justice kagan: and what of the question of whether the person is a member of the faith? ms. ratner, i to was surprised by the emphasis they put on that but on the suppose i can think is -- ushiva says non-jewish talmud scholar and hires that person. why shouldn't that person count? mr. fisher: justice kagan, we do is anink co-religion on-off switch, but just think it's a very, very strong objective factor in our column in this case and ought to be an important objective factor. way taber put it and i think the way you put it earlier in whetherment was not someone was just a member in the person ina special the faith who has a stewardship over that congregation or that
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very oddand it's a thing to say that somebody who is not even a member of the believed may fervently in a different faith is somehow andnister of that religion justice kagan i think that hypothetical does a good job of two differenthe strands of constitutional law in the first amendment that are relevant here. school hires a a teacher to say teach religion to students and even devotionally if you can, that is something that the school has strong free exercise interest in so they can immediately fire that person if they're not pleased with the way the person teaching their religion or anything else but we i don't think that's an establishment clause question. it's a very odd thing to say that the government is establishing religion by saying school, for positions where you don't even care whether the your religion and you've hired and fired them for reasons that have nothing to do religion, you're immunityto categorical
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to those decisions because of the first amendment. like an odd conclusion and something wrong with the analysis on the other side. justice kagan: thank you. government gorsuch? gorsuch: we've gone from the full-time to part-time lineion teacher and the i'm struggling with is a part-time teacher is less but what if the school can't afford a full-time teacher. maybe they can only afford a part-time teacher. you mentioned that you think it they be part of the faith but we drew from that withdrew from that a bit recognizing that one could be part of another faith and in this faith, catholics, jews, whatever -- i'm struggling with and howu draw the line much entanglement both sides are going to get us in here in
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deciding what's an important enough person in a particular we avoid that difficulty. mr. fisher: justice gorsuch, let me talk about the part-time hypothetical and the importance of entanglement. on the part-time question, i may not fully understand your apothetical, but i think if school said we're limited funds, teaching religion in our school important to us but we don't have the funds to hire a full-time religion teacher, going to hire a part-time teacher, i think that whatever answer you would give full-time religion teacher who taught only religion would also apply to the a.t-time teacher of justice gorsuch: what if members the congregation believe that all persons are ministers of the even,-- bishops maybe, and that they are all equally capable of teaching religion and something they all wish to do part-time while also subjects?ther
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mr. fisher: justice gorsish, i that taber itself said not be enoughd and i think that just again highlights the real issue in court.f the is not whom the religion considers to be its ministers or even whom the religion considers to be performing its most functions.eligious it's who among employees of aregious employers performing such vital duties to churchablishment of the that any qualification requirements or any legal withcement having to do their rights or qualifications would necessarily run afoul of the establishment clause and i think if we get away from labels, i wholeheartedly agree are enormous engtanglement questions in asking what is important or even who religions
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their minister. i think the problem with the other side's tests and read the materials they've cited and they will tell you, it is very clear religious employers sincerely believe all of their nurses, all of their teachers, administrators and john -- performinge important religious functions of the church so that can't be the question so i think the question is the legal question arising from the first amendment size to who is involved with the establishment of the church. that's the only way you can get perhapsity so i think it's that first principle's textual approach helps shed light on that situation and keep courts on the side of the line, less on religious. said wegorsuch: you shouldn't focus on their sincerely held religious beliefs is what we do elsewhere in first amendment jurisprudence.
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we don't second guess their religious beliefs. we do it here in whom they deem a minister? point.her: that's my i don't think you should second guess what religious their ownns define as beliefs or values. i don't think you should second guess whether they sincerely employees perform important religious functions but that just shows that can't be the right test here and i think your earlier questions pointed that out. you're right, the courts should stay out of that business. so what's the solution? we think what the solution is is courts should look to the objective factors that are outlined in taber, the things and the more legalistic things that are more ex-anti-decisions of the church who to designate as spiritual leaders and then ask that legal question about function and duties through the lens of the establishment clause of first principle. we think of telling that for
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isturies of history that discussed on the other side of this case there's not one single was notof a person who a titled member of the clergy receiving the protection they're requesting today. we think if there was a deeply rooted first amendment rule they're describing, there would be thousands of cases, millions of cases, because they're talking about expanding who is ministerialhe exception from primarily people that have objective indicia of status to making them truly the minority among a employees, just teachers alone, who have important religious duties but have never the thought to fall within ministerial exception. justice gorsuch: thank you. justice kavanaugh? justice kavanaugh: thank you, justice and good afternoon, welcome mr. fisher. want to start with a question that comes from the amicus brief of the milwaukee jewish day school. they say that the ninth circuit's approach, the more formalistic or objective
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that in theirs words, quote, jewish schools fared markedly worse, end quote, under that test, under circuit's formulation at least of that test. i want to get your reaction to prevent how we can that. mr. fisher: justice kavanaugh, i haven't seen empirical proof for see statement and we don't why that would be the case. remember, the ninth circuit its decisionized with the seventh circuit's case that dealt with a jewish day there the said even teacher had special training to be teaching in that school and that teacher may well be different. justice kavanaugh, if i would return you, i know i've said before, but the cases we cite in our red brief in footnote one deal with schools of the christian faith, of jewish faith and even some other board wed across the see a consistent treatment of lay teachers like our clients being outside of the
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ministerial exception so with that -- justice kavanaugh: next question is in terms of formulating the said inst, as the court taber is enough in the first factors, to list the we may have to refine that in this case. adoptingined it by justice alito's concurrence, what would be the problems, if from yourthat perspective? mr. fisher: well, i think we thee with much of concurrence, justice kavanaugh. we agree that titles, certainly monitor minister, but titles more generally, shouldn't be agree thatve and we function is important and we further agree, as i was just saying, that what the court do, particularly if it wants to be careful in this followsensitive area, is the vast experience of the lower court. where i depart from the concurrence and i just -- this is just my own difficulty understanding it, is that
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concurrence leaves out all of the cases that we cite in footnote one of our brief. so the concurrence on one hand consistent with past law but suggests, i think you're right, justice kavanaugh, thatome suggestions perhaps a broader ministerial exception for teachers would be appropriate and i think the way we would tell the court. justice kavanaugh: i'm sorry to interrupt but i want to get question or two in. you mentioned earlier religious up --r who just picks religion teacher who just picks up the handbook and you referred that having no training and i guess i would question the training point. there's no way to do this empirically but my guess is a of religion teachers would say their life is their training. mr. fisher: justice kavanaugh, i that byd respond to returning to one of
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mr. russbach's own answers when he was asked is it enough to be or a witness and i think he said no so i think there's something more to being a model or using personal experience because i don't see how you would distinguish the this case if that were the proper touch stone from the hundreds of thousands or oflions of employees religious institutions who are told in mr. handbooks and to carry out themselves during work hours and theheir lives according to faith. justice kavanaugh: thank you very much, mr. fisher. >> thank you, mr. fisher. minute or so to wrap up if you'd like. did isher: thank you, hear someone else wanted to ask a question? ok. mr. chief justice. with no other questions, i'll just simply return the court to important tois bear in mind as the overall question in this case which is when is categorical immunity required on the one hand and
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when is it not enough to say you're entitled as a statutory yourr to choose people of own religion to work for you and hire and fireto and set terms and conditions of employment according to your values and we think the lay teachers here fall on the latter side of the line. enough to give the schools in this case the ability to hire, fire, discipline and andrwise set the terms conditions of employment according to their religious values and it is too much and in ourlow a hole nation's civil rights laws and employment laws in general to say that categorical immunity applies and so schools can pay different amounts, use race, sex, other private even when they have nothing to do with the religion and the religious we ask thetake so court to affirm. >> thank you, counsel. mr. rasbach, two minutes for rebuttal., mr. chief
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may it please the court. a few points. the first is that the proof is pudding and we have the pudding here. the ministerial exception has well for decades and using functional consensus taber.and after you look at pages eight through nine of the yellow brief, we othern that there are cases where lay teachers have been decided under the functional test so i would thert to the fact that federal government said there are three buckets, pastors and teachers. teachers cases are common and are decided under the exception all the time and post taber a crystallization among the lower courts. the test has never been used. lots of nursef cases. there haven't been nurse cases in four decades. no need to decide the
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co-religionist issue in this case. wereis case they coreligionists and both schools wanted their teachers to be in taber just like when they were non--- not people same religion, there were sometimes gap fillers heartlandnd this is a case. these teachers are the stewards ofthe faith, the leaders their classroom. the function of teaching the next generation is central as conceded. these are the people who are teach the faith to the next generation. it, no one else will. the decisions below would framework fors deciding delicate church-state thetions with constitutional -- they should be reversed. thank you. >> thank you, the case is submitted. anouncer: tuesday, consolidated case dealing with president trump's financial records and whether the
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president's fortunately financial records prior to becoming president can be subpoenaed. at whether the president has immunity from subpoenas for financial records trump's taxesident returns, unrelated to his duties as president of the united states. court, live tuesday, on c-span. or listen on the free c-span radio app. liveiately following the supreme court session, join the national of constitution center, leading a live discussion with scholars. vermont senator bernie sanders sat down for an interview to federal response to the coronavirus in the upcoming 2020 presidential election. interview, senator said it was very unlikely he would run for president an hour.


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