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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The relationship between church and state was before the Supreme

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Speaker 1: Court once again on Monday, as the Justice is considered

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Speaker 1: calls by religious schools for a broader exemption from employment

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Speaker 1: discrimination lawsuits. The justices appeared divided along ideological lines. Here

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Speaker 1: are Justices Sonya Soto, Mayor and Neil Gorst's you're asking

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Speaker 1: for an exception to law that's broader than the ministerial

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Speaker 1: exception generally, and broader than is necessary to protect the church.

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Speaker 1: Why couldn't we just simply say that sincerely held religious

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Speaker 1: belief about who is a minister should control just like

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Speaker 1: we do everywhere else in the First Amendment. And joining

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Speaker 1: me is Richard Garnett, a professor at Notre Dame Law School.

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Speaker 1: Rick explain what the ministerial exception is and when the

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Speaker 1: Supreme Court recognized it. Sure, so, lower courts went first

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Speaker 1: on this issue. Lower courts recognized what they called a

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Speaker 1: ministrail exception about forty years ago, and the idea here

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Speaker 1: was that for certain classes of employees, employment discrimination lawsuits

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Speaker 1: couldn't go forward because if they did, it would get

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Speaker 1: courts involved and you know, what they thought was kind

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Speaker 1: of the tricky business of having to interfere with religious

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Speaker 1: decisions between ministers and religious institutions. And so this doctrine

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Speaker 1: would have been around for a long time. And the

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Speaker 1: reason the Supreme Court never addressed it was because all

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Speaker 1: the lower courts agreed that there was such a doctrine,

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Speaker 1: and there were there were disputes about details in particular cases,

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Speaker 1: but the basic idea that if the separation of church

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Speaker 1: and State needs anything, it means that the government can't

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Speaker 1: tell churches who hires their ministers. That there was a

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Speaker 1: lot of consensus on that point. Then the Supreme Court

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Speaker 1: weighed in in two thousand and twelve, they finally did

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Speaker 1: take a case, and they were ruled unanimously that yes,

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Speaker 1: there is a ministerial exception that the First Amendment does

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Speaker 1: not permit some employment discrimination lawsuits to go forward. So

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Speaker 1: you know, it would be illegal for Walmart to refuse

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Speaker 1: to hire a woman, but the government doesn't have a

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Speaker 1: power to tell an Orthodox Jewish congregation that it has

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Speaker 1: to hire a woman to be its rabbi, and so on.

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Speaker 1: The disagreement has been not so much about the principle

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Speaker 1: of the thing I mean, I think everybody has kind

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Speaker 1: of an instinct. The government can't make the Catholic Church

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Speaker 1: ordained women priests. But it's more about the shape of

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Speaker 1: the doctrine, right who count has a religious institution, who

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Speaker 1: counts as a ministerial employee. And there's been a lot

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Speaker 1: of cases that have been pretty easy. If a church

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Speaker 1: fires its pastor, that's pretty obviously a minister. So what

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Speaker 1: was the main issue in these cases which involved teachers

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Speaker 1: and Catholic schools who were not ordained ministers, who had

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Speaker 1: a mix of job duties religious and secular, And so

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Speaker 1: the issue was how do you decide who counts as

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Speaker 1: a ministerial employee? And in these two cases, the lower

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Speaker 1: courts had taken a narrower review than most courts had.

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Speaker 1: Most courts had taken a pretty deferential approach, you know,

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Speaker 1: not wanting to kind of get involved in wading into

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Speaker 1: the weeds about you know, counting up how many minute

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Speaker 1: the teachers is doing religious subjects or what have you.

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Speaker 1: And what the justices were wrestling with was not whether

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Speaker 1: there should be a ministry or exception. I think all

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Speaker 1: the justices agreed there should be one. The question they

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Speaker 1: were wrestling with those kind of how far should it reach?

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Speaker 1: Should courts be kind of second guessing religious institutions designations

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Speaker 1: of their own ministers they leave up to them, and

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Speaker 1: so on? And how did the justices way the competing

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Speaker 1: considerations the justices, you know, we're asking lawyers on both sides, well,

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Speaker 1: you know, what about this kind of case, or you

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Speaker 1: know what if you have a teacher who does religion

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Speaker 1: for two hours a day but is also a gym coach,

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Speaker 1: or what if you have somebody who's a they're a

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Speaker 1: Lutheran person at a Catholic school who says grace before meals.

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Speaker 1: You know, I think for one side of the case,

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Speaker 1: they wanted to show these hypothecles like, look, this thing

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Speaker 1: could sweep really broadly, and would that undermine the importance

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Speaker 1: of antidiscrimination law. The other side was trying to make

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Speaker 1: the point. I think that, look, we don't want secular

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Speaker 1: courts getting in the business of making these kind of

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Speaker 1: fine grain distinctions based on how many minutes a day

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Speaker 1: person might spend teaching math versus teaching catechisess and theology.

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Speaker 1: And you know, at a lot of schools the math

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Speaker 1: teacher does play an important religious role and you can't

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Speaker 1: make it just depend on the label. The arguments at

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Speaker 1: the end of the day were really about the difficulty

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Speaker 1: of line drawing. There was a lot of consensus at

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Speaker 1: the level of high principle right religious freedom is important.

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Speaker 1: Religious institutions should get to govern themselves and decides who

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Speaker 1: their ministers are. We don't want secular courts involved in

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Speaker 1: these decisions. There seemed to be a fair bit of

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Speaker 1: agreement on those points, but the argument was more about

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Speaker 1: where do you draw the line? So Rick, what's your

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Speaker 1: sense of how the justices might line up in the case.

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Speaker 1: My read of the situation was that maybe it won't

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Speaker 1: be unanimous this time, but that you'll still have a

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Speaker 1: majority of the justices saying, look, this doctrine is important,

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Speaker 1: and it really should prevent courts from getting involved in

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Speaker 1: um sort of second guessing the employment decisions that religious

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Speaker 1: institutions make about people who they regard as having an

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Speaker 1: important ministerial or religious role. Justice course, it's said that

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Speaker 1: we don't second guess these sincerely held religious beliefs in

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Speaker 1: First Amendment cases? Why should we hear so? Do you

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Speaker 1: think that enough justice will come down and say we

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Speaker 1: shouldn't second guesses at all. Whoever religious institution says is

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Speaker 1: a minister, that's a minister. Well, uh, he used. He

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Speaker 1: was making an analogy to what we do in free

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Speaker 1: exercise cases around the sincerely held belief issue, And that

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Speaker 1: comes up in RIFRA cases obviously, and it comes up

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Speaker 1: in free exercise cases. UM courts do inquire in those

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Speaker 1: kind of cases into whether a claim about religion is sincere.

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Speaker 1: I mean, if a court thinks that the that the

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Speaker 1: party is typically not telling the truth about their religious beliefs,

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Speaker 1: then they don't have to give credence to that. But

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Speaker 1: I think what justice course it was alluding to was

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Speaker 1: the idea that, look, we take a pretty we take

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Speaker 1: a pretty light touch when it comes to um second

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Speaker 1: guessing somebody who tells us what their religious beliefs are.

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Speaker 1: And similarly, it makes sense in this context to take

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Speaker 1: a pretty light touch to the question of if a

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Speaker 1: religious community tells us and tells the world that they

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Speaker 1: regard a particular position as important to the religious mission,

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Speaker 1: it's not really our job to second guess that. Again,

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Speaker 1: if we're going to take this kind of church state

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Speaker 1: separation idea seriously, I mean, and again looking in the background,

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Speaker 1: and I think this is something that Justice Kagan was

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Speaker 1: particularly concerned with. Justice Thomas also, there's a there's a

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Speaker 1: worry about the potential for discrimination against kind of unfamiliar religions,

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Speaker 1: or minority religions, or just small institutions. Um. You know,

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Speaker 1: in these cases involved kind of Catholic parochial schools, and

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Speaker 1: everybody is kind of familiar with that set up. But

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Speaker 1: as some of the justices pointed out, there's a whole

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Speaker 1: lot of religious institutions in this country where people wear

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Speaker 1: a a lot of different hats and where the roles

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Speaker 1: that they're asked to play might be unfamiliar to your

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Speaker 1: typical again kind of um, white Anglo Saxon Protestant jurists,

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Speaker 1: And so they don't want to come up with doctrines

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Speaker 1: that run the risk that unfamiliar religions will not get

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Speaker 1: the same protection as religions that are more kind of

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Speaker 1: structured and formal and familiar. Justice Ruth Bader Ginsburg did

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Speaker 1: she seem to be the justice who was most most

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Speaker 1: on the side of the teachers. Yeah, I think jeffics

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Speaker 1: Ginsburg's current ser and again again, Justice Ginsburg joined the

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Speaker 1: opinion eight years ago which endorsed a pretty robust version

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Speaker 1: of the ministry exception. But I think what her concern

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Speaker 1: was was that, you know, because the ministerial exception applies

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Speaker 1: even in cases where the employer's reasons for firing the

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Speaker 1: person are not explicitly religious, she was worried about the

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Speaker 1: exemption being too broad. Now, again, my view would be

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Speaker 1: that that was what Josanna Tabor said eight years ago,

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Speaker 1: and she signed onto that. But I think her questions

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Speaker 1: indicated a concern that you that the ministry exception might

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Speaker 1: have the effect, of um, of blocking a lot of

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Speaker 1: employment discrimination lawsuits in cases that, at least in her view,

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Speaker 1: don't have a lot to do with actual religious teaching

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Speaker 1: and instruction. Do you see them drawing a line? What

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Speaker 1: do you see them doing? No? I don't. I just

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Speaker 1: really just don't think there's a line to be drawn.

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Speaker 1: I mean, they declined to draw one in the Posanna

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Speaker 1: Tabor case eight years ago, and I don't think they'll

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Speaker 1: draw one now. Um, It'll be it's more a question

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Speaker 1: of kind of the um, the vibe of the approach,

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Speaker 1: And I think the real what's really in play is

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Speaker 1: just how much difference we tell lower courts that they're

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Speaker 1: supposed to be extending to the religious employers, and the

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Speaker 1: subsite is I mean, it's you know, the people who

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Speaker 1: want a narrower version of the ministry exception. They want

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Speaker 1: to put out certain markers, you know, like you you

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Speaker 1: have to have a certain title, you have to have

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Speaker 1: a certain kind of training, or you have to have

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Speaker 1: a certain kind of certification, or you have to spend

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Speaker 1: a certain amount of time teaching religious subjects. And I

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Speaker 1: just don't think the court is going to want to

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Speaker 1: do that because with respect to any of those bright lines,

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Speaker 1: you could think of cases that wouldn't satisfy them. So

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Speaker 1: I suspect we're going to end up, frankly, probably where

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Speaker 1: we were after Josiana Tabor, which is just that there's

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Speaker 1: a lot of factors to be considered. We don't want

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Speaker 1: to have a one size fits all things because we

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Speaker 1: have religious diversity in this country, but that the basic

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Speaker 1: principle is one that respects both free exercise values that

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Speaker 1: as we think religious communit these have a free exercise

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Speaker 1: of religion, right to pick their own ministers. And also

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Speaker 1: this kind of church state separation comes around where we

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Speaker 1: really don't want um employment discrimination lawsuits to become a

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Speaker 1: a mechanism where secular courts are kind of digging into

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Speaker 1: um internal religious decisions about who should be a minister

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Speaker 1: and who won't. So it'll be, you know, for for

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Speaker 1: a certain kind of lawyer. Frankly, I'm offer in this

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Speaker 1: way myself, who likes kind of bright line rules. I

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Speaker 1: suspect we won't get one here. Um. I think instead

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Speaker 1: what we'll get as kind of a a general principle

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Speaker 1: that's important, right, respecting religious autonomy, and then we'll get

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Speaker 1: kind of a pretty deferential approach to religious employers. But

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Speaker 1: like Justice course has said, and I think you're right

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Speaker 1: to pick up on that, there's always it's always possible

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Speaker 1: to ask about kind of the sincerity of a claim

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Speaker 1: that it puts a sular employee is a is a minister.

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Speaker 1: So let me ask you this then, Rick, looking at

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Speaker 1: this from another side, does that mean that if someone

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Speaker 1: fits the ministerial exception, let's just say you're a l

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Speaker 1: a teacher teaches religion, does that mean that the school

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Speaker 1: can then fire her because she has cancer or because

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Speaker 1: they don't like the way she dresses, That they can

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Speaker 1: fire her for any reason and not be held to account. Right, So,

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Speaker 1: if the ministerial exception applies. It's it's absolutely. Um Uh.

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Speaker 1: This is separate from there's a separate rule in the

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Speaker 1: Title seven and employment discrimination laws which give kind of

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Speaker 1: broad protections to religious institutions to hire and two favorite

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Speaker 1: co religionists. Right, so you're a Catholic institution is allowed

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Speaker 1: to prefer Catholic but that just kind of that's already

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Speaker 1: at rule. The minister exception is separate. The minister exception

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Speaker 1: does not care about the reasons of the employment decision.

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Speaker 1: It's attached to the position and the relationship between that

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Speaker 1: position and the religious institution. And this is again I

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Speaker 1: think this is one of the things that had Justice

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Speaker 1: Ginsburg hesitants and sort of nervous about this is that

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Speaker 1: when the ministry exception applies, it's absolute. And so it

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Speaker 1: does mean that sometimes the ministry exception will protect religious

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Speaker 1: institutions that behave badly. Um. There's there's there's no way

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Speaker 1: around that, right. It's kind of like the freedom of

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Speaker 1: speech protects people who say some really offensive things. Sometimes. Um,

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Speaker 1: the minister exception can be misused in some circumstances by

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Speaker 1: religious institutions two to shield employment decisions that are that

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Speaker 1: are bad and that's just a fact of life. And

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Speaker 1: I don't I don't think, I don't think advocates for

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Speaker 1: the ministry of exception would would deny that. It's just

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Speaker 1: that's an inevitable result of the fact that we have

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Speaker 1: a principle of church autonomy and church state separation. And

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Speaker 1: of course then it just raises the question, well, religious

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Speaker 1: communities and those who are parts of religious institutions um,

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Speaker 1: need to be asking themselves to be outside the context

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Speaker 1: of litigation. Um, how well there they're treating their their members,

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Speaker 1: their employees, their leaders and so on. And it raises

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Speaker 1: all kinds of questions about how you structure employment contracts

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Speaker 1: and um, employee guide books and handbooks and all that

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Speaker 1: kind of thing. But your question is an important one

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Speaker 1: because nobody should nobody should pretend otherwise. The ministry exception

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Speaker 1: does mean that, when it applies, religious institutions can fire

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Speaker 1: some people without having to give an account of that

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Speaker 1: in the secular court. So now, how do you see

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Speaker 1: that the justices lining up, Well, all nine of the

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Speaker 1: justices believe that there is a ministry or exception um,

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Speaker 1: and so at a high level of reality, they will

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Speaker 1: all agree um with respect to this particular case. I'm

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Speaker 1: not sure. If I had to guess, I would I

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Speaker 1: would have been Again, it's so risky, you know, making

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Speaker 1: these kind of predictions on the basis of argument. But

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Speaker 1: I thought there was enough skepticism on the part of

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Speaker 1: Justices Ginsburg and so do my or that maybe they

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Speaker 1: would side with these particular teachers in this particular case. Um,

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Speaker 1: But I would I would think that even in this case, um,

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Speaker 1: since you know, this wasn't the case involving like a

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Speaker 1: really marginal employee like sometimes the cases you hear about

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Speaker 1: our you know, what about the janitor or the school

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Speaker 1: bus driver or what have you. These are still teachers

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Speaker 1: who were teaching religion sometimes. And so I I guess

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Speaker 1: I expect that you'll see at least seven justices siding

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Speaker 1: with the religious school. Thanks for being on Bloomberg Law. Rick,

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Speaker 1: That's Richard Garnett, a professor at Notre Dame Law School.

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Speaker 1: And that's it for the sedition of Bloomberg Law. Remember

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Speaker 1: to our Bloomberg Law podcast. You can find them on iTunes, SoundCloud,

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Speaker 1: or Bloomberg dot com Slash podcast Slash Law. I'm June Grosso,

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