WEBVTT - High Court Seems Divided on Shield for Religious Schools 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.080 --> 0:00:09.280 The relationship between church and state was before the Supreme 0:00:09.320 --> 0:00:12.719 Court once again on Monday, as the Justice is considered 0:00:12.760 --> 0:00:16.480 calls by religious schools for a broader exemption from employment 0:00:16.520 --> 0:00:21.960 discrimination lawsuits. The justices appeared divided along ideological lines. Here 0:00:21.960 --> 0:00:26.200 are Justices Sonya Soto, Mayor and Neil Gorst's you're asking 0:00:26.280 --> 0:00:30.800 for an exception to law that's broader than the ministerial 0:00:30.840 --> 0:00:37.040 exception generally, and broader than is necessary to protect the church. 0:00:37.840 --> 0:00:42.080 Why couldn't we just simply say that sincerely held religious 0:00:42.080 --> 0:00:44.519 belief about who is a minister should control just like 0:00:44.560 --> 0:00:47.440 we do everywhere else in the First Amendment. And joining 0:00:47.440 --> 0:00:50.320 me is Richard Garnett, a professor at Notre Dame Law School. 0:00:50.840 --> 0:00:53.920 Rick explain what the ministerial exception is and when the 0:00:53.960 --> 0:00:58.320 Supreme Court recognized it. Sure, so, lower courts went first 0:00:58.360 --> 0:01:01.280 on this issue. Lower courts recognized what they called a 0:01:01.320 --> 0:01:04.360 ministrail exception about forty years ago, and the idea here 0:01:04.480 --> 0:01:09.199 was that for certain classes of employees, employment discrimination lawsuits 0:01:09.520 --> 0:01:12.280 couldn't go forward because if they did, it would get 0:01:12.280 --> 0:01:14.680 courts involved and you know, what they thought was kind 0:01:14.720 --> 0:01:18.000 of the tricky business of having to interfere with religious 0:01:18.040 --> 0:01:22.400 decisions between ministers and religious institutions. And so this doctrine 0:01:22.440 --> 0:01:23.960 would have been around for a long time. And the 0:01:24.000 --> 0:01:26.800 reason the Supreme Court never addressed it was because all 0:01:26.840 --> 0:01:29.240 the lower courts agreed that there was such a doctrine, 0:01:29.280 --> 0:01:32.039 and there were there were disputes about details in particular cases, 0:01:32.080 --> 0:01:34.360 but the basic idea that if the separation of church 0:01:34.360 --> 0:01:36.960 and State needs anything, it means that the government can't 0:01:37.000 --> 0:01:39.360 tell churches who hires their ministers. That there was a 0:01:39.400 --> 0:01:41.759 lot of consensus on that point. Then the Supreme Court 0:01:42.120 --> 0:01:44.680 weighed in in two thousand and twelve, they finally did 0:01:44.800 --> 0:01:47.680 take a case, and they were ruled unanimously that yes, 0:01:47.720 --> 0:01:51.120 there is a ministerial exception that the First Amendment does 0:01:51.160 --> 0:01:55.080 not permit some employment discrimination lawsuits to go forward. So 0:01:55.200 --> 0:01:57.520 you know, it would be illegal for Walmart to refuse 0:01:57.560 --> 0:02:00.040 to hire a woman, but the government doesn't have a 0:02:00.120 --> 0:02:03.000 power to tell an Orthodox Jewish congregation that it has 0:02:03.040 --> 0:02:05.080 to hire a woman to be its rabbi, and so on. 0:02:05.280 --> 0:02:08.800 The disagreement has been not so much about the principle 0:02:08.919 --> 0:02:11.079 of the thing I mean, I think everybody has kind 0:02:11.080 --> 0:02:13.639 of an instinct. The government can't make the Catholic Church 0:02:13.760 --> 0:02:16.680 ordained women priests. But it's more about the shape of 0:02:16.680 --> 0:02:20.119 the doctrine, right who count has a religious institution, who 0:02:20.200 --> 0:02:23.520 counts as a ministerial employee. And there's been a lot 0:02:23.600 --> 0:02:26.720 of cases that have been pretty easy. If a church 0:02:26.800 --> 0:02:29.880 fires its pastor, that's pretty obviously a minister. So what 0:02:30.000 --> 0:02:33.160 was the main issue in these cases which involved teachers 0:02:33.160 --> 0:02:36.680 and Catholic schools who were not ordained ministers, who had 0:02:36.680 --> 0:02:40.240 a mix of job duties religious and secular, And so 0:02:40.280 --> 0:02:43.639 the issue was how do you decide who counts as 0:02:43.639 --> 0:02:47.120 a ministerial employee? And in these two cases, the lower 0:02:47.200 --> 0:02:51.640 courts had taken a narrower review than most courts had. 0:02:52.160 --> 0:02:55.240 Most courts had taken a pretty deferential approach, you know, 0:02:55.280 --> 0:02:57.760 not wanting to kind of get involved in wading into 0:02:57.800 --> 0:03:00.000 the weeds about you know, counting up how many minute 0:03:00.040 --> 0:03:02.800 the teachers is doing religious subjects or what have you. 0:03:03.200 --> 0:03:05.800 And what the justices were wrestling with was not whether 0:03:05.800 --> 0:03:07.480 there should be a ministry or exception. I think all 0:03:07.480 --> 0:03:10.040 the justices agreed there should be one. The question they 0:03:10.040 --> 0:03:13.400 were wrestling with those kind of how far should it reach? 0:03:13.880 --> 0:03:18.000 Should courts be kind of second guessing religious institutions designations 0:03:18.040 --> 0:03:20.040 of their own ministers they leave up to them, and 0:03:20.080 --> 0:03:22.799 so on? And how did the justices way the competing 0:03:22.840 --> 0:03:27.080 considerations the justices, you know, we're asking lawyers on both sides, well, 0:03:27.280 --> 0:03:28.800 you know, what about this kind of case, or you 0:03:28.800 --> 0:03:31.200 know what if you have a teacher who does religion 0:03:31.240 --> 0:03:33.280 for two hours a day but is also a gym coach, 0:03:33.400 --> 0:03:35.440 or what if you have somebody who's a they're a 0:03:35.520 --> 0:03:40.080 Lutheran person at a Catholic school who says grace before meals. 0:03:40.120 --> 0:03:41.840 You know, I think for one side of the case, 0:03:42.160 --> 0:03:44.080 they wanted to show these hypothecles like, look, this thing 0:03:44.080 --> 0:03:47.200 could sweep really broadly, and would that undermine the importance 0:03:47.400 --> 0:03:50.240 of antidiscrimination law. The other side was trying to make 0:03:50.240 --> 0:03:53.040 the point. I think that, look, we don't want secular 0:03:53.080 --> 0:03:55.880 courts getting in the business of making these kind of 0:03:56.040 --> 0:03:59.840 fine grain distinctions based on how many minutes a day 0:04:00.080 --> 0:04:05.000 person might spend teaching math versus teaching catechisess and theology. 0:04:05.040 --> 0:04:06.839 And you know, at a lot of schools the math 0:04:06.880 --> 0:04:09.680 teacher does play an important religious role and you can't 0:04:09.760 --> 0:04:12.760 make it just depend on the label. The arguments at 0:04:12.800 --> 0:04:14.760 the end of the day were really about the difficulty 0:04:14.880 --> 0:04:17.600 of line drawing. There was a lot of consensus at 0:04:17.600 --> 0:04:20.920 the level of high principle right religious freedom is important. 0:04:21.040 --> 0:04:23.680 Religious institutions should get to govern themselves and decides who 0:04:23.720 --> 0:04:26.359 their ministers are. We don't want secular courts involved in 0:04:26.400 --> 0:04:28.159 these decisions. There seemed to be a fair bit of 0:04:28.160 --> 0:04:31.120 agreement on those points, but the argument was more about 0:04:31.120 --> 0:04:33.640 where do you draw the line? So Rick, what's your 0:04:33.680 --> 0:04:36.640 sense of how the justices might line up in the case. 0:04:37.600 --> 0:04:41.120 My read of the situation was that maybe it won't 0:04:41.160 --> 0:04:43.520 be unanimous this time, but that you'll still have a 0:04:43.600 --> 0:04:47.720 majority of the justices saying, look, this doctrine is important, 0:04:47.839 --> 0:04:52.680 and it really should prevent courts from getting involved in 0:04:53.160 --> 0:04:56.840 um sort of second guessing the employment decisions that religious 0:04:56.839 --> 0:05:01.680 institutions make about people who they regard as having an 0:05:01.760 --> 0:05:06.240 important ministerial or religious role. Justice course, it's said that 0:05:06.279 --> 0:05:09.479 we don't second guess these sincerely held religious beliefs in 0:05:09.560 --> 0:05:12.840 First Amendment cases? Why should we hear so? Do you 0:05:12.920 --> 0:05:16.640 think that enough justice will come down and say we 0:05:16.680 --> 0:05:20.599 shouldn't second guesses at all. Whoever religious institution says is 0:05:20.600 --> 0:05:24.320 a minister, that's a minister. Well, uh, he used. He 0:05:24.360 --> 0:05:26.200 was making an analogy to what we do in free 0:05:26.200 --> 0:05:30.000 exercise cases around the sincerely held belief issue, And that 0:05:30.040 --> 0:05:33.080 comes up in RIFRA cases obviously, and it comes up 0:05:33.080 --> 0:05:38.040 in free exercise cases. UM courts do inquire in those 0:05:38.120 --> 0:05:42.040 kind of cases into whether a claim about religion is sincere. 0:05:42.120 --> 0:05:44.000 I mean, if a court thinks that the that the 0:05:44.000 --> 0:05:48.440 party is typically not telling the truth about their religious beliefs, 0:05:48.640 --> 0:05:51.240 then they don't have to give credence to that. But 0:05:51.360 --> 0:05:53.960 I think what justice course it was alluding to was 0:05:54.000 --> 0:05:57.400 the idea that, look, we take a pretty we take 0:05:57.440 --> 0:06:01.279 a pretty light touch when it comes to um second 0:06:01.279 --> 0:06:04.400 guessing somebody who tells us what their religious beliefs are. 0:06:04.440 --> 0:06:08.160 And similarly, it makes sense in this context to take 0:06:08.200 --> 0:06:10.240 a pretty light touch to the question of if a 0:06:10.240 --> 0:06:14.920 religious community tells us and tells the world that they 0:06:15.000 --> 0:06:19.000 regard a particular position as important to the religious mission, 0:06:19.760 --> 0:06:22.040 it's not really our job to second guess that. Again, 0:06:22.080 --> 0:06:24.160 if we're going to take this kind of church state 0:06:24.200 --> 0:06:29.440 separation idea seriously, I mean, and again looking in the background, 0:06:29.480 --> 0:06:32.919 and I think this is something that Justice Kagan was 0:06:32.960 --> 0:06:37.760 particularly concerned with. Justice Thomas also, there's a there's a 0:06:37.800 --> 0:06:43.200 worry about the potential for discrimination against kind of unfamiliar religions, 0:06:43.320 --> 0:06:48.160 or minority religions, or just small institutions. Um. You know, 0:06:48.160 --> 0:06:51.440 in these cases involved kind of Catholic parochial schools, and 0:06:51.480 --> 0:06:54.560 everybody is kind of familiar with that set up. But 0:06:55.120 --> 0:06:57.240 as some of the justices pointed out, there's a whole 0:06:57.279 --> 0:06:59.760 lot of religious institutions in this country where people wear 0:06:59.800 --> 0:07:03.119 a a lot of different hats and where the roles 0:07:03.160 --> 0:07:05.640 that they're asked to play might be unfamiliar to your 0:07:06.200 --> 0:07:12.760 typical again kind of um, white Anglo Saxon Protestant jurists, 0:07:13.440 --> 0:07:15.880 And so they don't want to come up with doctrines 0:07:15.920 --> 0:07:20.960 that run the risk that unfamiliar religions will not get 0:07:20.960 --> 0:07:24.400 the same protection as religions that are more kind of 0:07:24.440 --> 0:07:29.800 structured and formal and familiar. Justice Ruth Bader Ginsburg did 0:07:29.840 --> 0:07:33.280 she seem to be the justice who was most most 0:07:33.360 --> 0:07:36.160 on the side of the teachers. Yeah, I think jeffics 0:07:36.160 --> 0:07:39.280 Ginsburg's current ser and again again, Justice Ginsburg joined the 0:07:39.320 --> 0:07:44.920 opinion eight years ago which endorsed a pretty robust version 0:07:44.960 --> 0:07:48.040 of the ministry exception. But I think what her concern 0:07:48.920 --> 0:07:53.600 was was that, you know, because the ministerial exception applies 0:07:54.560 --> 0:07:58.480 even in cases where the employer's reasons for firing the 0:07:58.520 --> 0:08:03.040 person are not explicitly religious, she was worried about the 0:08:03.080 --> 0:08:07.320 exemption being too broad. Now, again, my view would be 0:08:07.360 --> 0:08:10.040 that that was what Josanna Tabor said eight years ago, 0:08:10.120 --> 0:08:13.360 and she signed onto that. But I think her questions 0:08:14.040 --> 0:08:19.040 indicated a concern that you that the ministry exception might 0:08:19.120 --> 0:08:24.680 have the effect, of um, of blocking a lot of 0:08:24.680 --> 0:08:29.400 employment discrimination lawsuits in cases that, at least in her view, 0:08:30.040 --> 0:08:34.040 don't have a lot to do with actual religious teaching 0:08:34.080 --> 0:08:37.480 and instruction. Do you see them drawing a line? What 0:08:37.520 --> 0:08:41.480 do you see them doing? No? I don't. I just 0:08:41.559 --> 0:08:43.120 really just don't think there's a line to be drawn. 0:08:43.160 --> 0:08:46.720 I mean, they declined to draw one in the Posanna 0:08:46.760 --> 0:08:48.720 Tabor case eight years ago, and I don't think they'll 0:08:49.360 --> 0:08:53.880 draw one now. Um, It'll be it's more a question 0:08:53.920 --> 0:08:57.600 of kind of the um, the vibe of the approach, 0:08:57.760 --> 0:09:00.880 And I think the real what's really in play is 0:09:00.920 --> 0:09:04.439 just how much difference we tell lower courts that they're 0:09:04.480 --> 0:09:07.200 supposed to be extending to the religious employers, and the 0:09:07.240 --> 0:09:10.400 subsite is I mean, it's you know, the people who 0:09:10.400 --> 0:09:14.840 want a narrower version of the ministry exception. They want 0:09:14.880 --> 0:09:18.120 to put out certain markers, you know, like you you 0:09:18.160 --> 0:09:19.920 have to have a certain title, you have to have 0:09:19.920 --> 0:09:21.839 a certain kind of training, or you have to have 0:09:21.880 --> 0:09:24.880 a certain kind of certification, or you have to spend 0:09:24.880 --> 0:09:28.800 a certain amount of time teaching religious subjects. And I 0:09:28.880 --> 0:09:30.720 just don't think the court is going to want to 0:09:31.080 --> 0:09:35.440 do that because with respect to any of those bright lines, 0:09:35.559 --> 0:09:38.480 you could think of cases that wouldn't satisfy them. So 0:09:38.720 --> 0:09:42.360 I suspect we're going to end up, frankly, probably where 0:09:42.360 --> 0:09:45.440 we were after Josiana Tabor, which is just that there's 0:09:45.480 --> 0:09:48.280 a lot of factors to be considered. We don't want 0:09:48.280 --> 0:09:50.040 to have a one size fits all things because we 0:09:50.080 --> 0:09:52.959 have religious diversity in this country, but that the basic 0:09:53.080 --> 0:09:58.480 principle is one that respects both free exercise values that 0:09:58.520 --> 0:10:01.240 as we think religious communit these have a free exercise 0:10:01.240 --> 0:10:05.400 of religion, right to pick their own ministers. And also 0:10:05.480 --> 0:10:08.040 this kind of church state separation comes around where we 0:10:08.080 --> 0:10:13.800 really don't want um employment discrimination lawsuits to become a 0:10:13.800 --> 0:10:18.440 a mechanism where secular courts are kind of digging into 0:10:19.160 --> 0:10:22.480 um internal religious decisions about who should be a minister 0:10:22.520 --> 0:10:25.240 and who won't. So it'll be, you know, for for 0:10:25.280 --> 0:10:29.719 a certain kind of lawyer. Frankly, I'm offer in this 0:10:29.760 --> 0:10:33.520 way myself, who likes kind of bright line rules. I 0:10:33.559 --> 0:10:37.760 suspect we won't get one here. Um. I think instead 0:10:37.800 --> 0:10:40.439 what we'll get as kind of a a general principle 0:10:40.520 --> 0:10:44.480 that's important, right, respecting religious autonomy, and then we'll get 0:10:44.679 --> 0:10:49.319 kind of a pretty deferential approach to religious employers. But 0:10:49.360 --> 0:10:51.160 like Justice course has said, and I think you're right 0:10:51.200 --> 0:10:54.960 to pick up on that, there's always it's always possible 0:10:55.040 --> 0:10:59.400 to ask about kind of the sincerity of a claim 0:10:59.440 --> 0:11:03.080 that it puts a sular employee is a is a minister. 0:11:03.559 --> 0:11:06.160 So let me ask you this then, Rick, looking at 0:11:06.200 --> 0:11:10.520 this from another side, does that mean that if someone 0:11:10.559 --> 0:11:13.480 fits the ministerial exception, let's just say you're a l 0:11:13.480 --> 0:11:17.400 a teacher teaches religion, does that mean that the school 0:11:17.480 --> 0:11:22.000 can then fire her because she has cancer or because 0:11:22.120 --> 0:11:24.160 they don't like the way she dresses, That they can 0:11:24.200 --> 0:11:28.800 fire her for any reason and not be held to account. Right, So, 0:11:28.880 --> 0:11:34.120 if the ministerial exception applies. It's it's absolutely. Um Uh. 0:11:34.160 --> 0:11:38.520 This is separate from there's a separate rule in the 0:11:38.559 --> 0:11:42.280 Title seven and employment discrimination laws which give kind of 0:11:42.320 --> 0:11:47.240 broad protections to religious institutions to hire and two favorite 0:11:47.240 --> 0:11:51.000 co religionists. Right, so you're a Catholic institution is allowed 0:11:51.000 --> 0:11:53.200 to prefer Catholic but that just kind of that's already 0:11:53.240 --> 0:11:55.959 at rule. The minister exception is separate. The minister exception 0:11:56.040 --> 0:12:01.040 does not care about the reasons of the employment decision. 0:12:01.080 --> 0:12:04.720 It's attached to the position and the relationship between that 0:12:04.840 --> 0:12:07.120 position and the religious institution. And this is again I 0:12:07.120 --> 0:12:08.679 think this is one of the things that had Justice 0:12:08.720 --> 0:12:12.640 Ginsburg hesitants and sort of nervous about this is that 0:12:13.200 --> 0:12:18.760 when the ministry exception applies, it's absolute. And so it 0:12:18.800 --> 0:12:25.360 does mean that sometimes the ministry exception will protect religious 0:12:25.360 --> 0:12:29.040 institutions that behave badly. Um. There's there's there's no way 0:12:29.040 --> 0:12:31.360 around that, right. It's kind of like the freedom of 0:12:31.400 --> 0:12:35.600 speech protects people who say some really offensive things. Sometimes. Um, 0:12:35.640 --> 0:12:39.679 the minister exception can be misused in some circumstances by 0:12:39.679 --> 0:12:45.880 religious institutions two to shield employment decisions that are that 0:12:45.960 --> 0:12:49.720 are bad and that's just a fact of life. And 0:12:49.880 --> 0:12:51.839 I don't I don't think, I don't think advocates for 0:12:51.880 --> 0:12:55.320 the ministry of exception would would deny that. It's just 0:12:55.840 --> 0:12:58.800 that's an inevitable result of the fact that we have 0:12:58.920 --> 0:13:02.360 a principle of church autonomy and church state separation. And 0:13:02.400 --> 0:13:05.959 of course then it just raises the question, well, religious 0:13:06.320 --> 0:13:10.080 communities and those who are parts of religious institutions um, 0:13:10.320 --> 0:13:14.040 need to be asking themselves to be outside the context 0:13:14.120 --> 0:13:19.319 of litigation. Um, how well there they're treating their their members, 0:13:19.400 --> 0:13:22.680 their employees, their leaders and so on. And it raises 0:13:22.840 --> 0:13:25.640 all kinds of questions about how you structure employment contracts 0:13:25.720 --> 0:13:29.160 and um, employee guide books and handbooks and all that 0:13:29.240 --> 0:13:31.920 kind of thing. But your question is an important one 0:13:31.960 --> 0:13:36.320 because nobody should nobody should pretend otherwise. The ministry exception 0:13:36.400 --> 0:13:43.200 does mean that, when it applies, religious institutions can fire 0:13:43.280 --> 0:13:47.400 some people without having to give an account of that 0:13:47.920 --> 0:13:51.040 in the secular court. So now, how do you see 0:13:51.080 --> 0:13:54.640 that the justices lining up, Well, all nine of the 0:13:54.679 --> 0:13:58.400 justices believe that there is a ministry or exception um, 0:13:58.480 --> 0:14:00.600 and so at a high level of reality, they will 0:14:00.640 --> 0:14:05.280 all agree um with respect to this particular case. I'm 0:14:05.320 --> 0:14:07.640 not sure. If I had to guess, I would I 0:14:07.640 --> 0:14:10.240 would have been Again, it's so risky, you know, making 0:14:10.240 --> 0:14:13.360 these kind of predictions on the basis of argument. But 0:14:14.240 --> 0:14:16.760 I thought there was enough skepticism on the part of 0:14:16.800 --> 0:14:19.560 Justices Ginsburg and so do my or that maybe they 0:14:19.560 --> 0:14:24.680 would side with these particular teachers in this particular case. Um, 0:14:24.720 --> 0:14:27.480 But I would I would think that even in this case, um, 0:14:27.520 --> 0:14:30.600 since you know, this wasn't the case involving like a 0:14:30.640 --> 0:14:34.240 really marginal employee like sometimes the cases you hear about 0:14:34.240 --> 0:14:37.040 our you know, what about the janitor or the school 0:14:37.040 --> 0:14:40.360 bus driver or what have you. These are still teachers 0:14:40.360 --> 0:14:43.520 who were teaching religion sometimes. And so I I guess 0:14:43.520 --> 0:14:46.240 I expect that you'll see at least seven justices siding 0:14:46.240 --> 0:14:48.840 with the religious school. Thanks for being on Bloomberg Law. Rick, 0:14:49.160 --> 0:14:52.160 That's Richard Garnett, a professor at Notre Dame Law School. 0:14:52.400 --> 0:14:55.160 And that's it for the sedition of Bloomberg Law. Remember 0:14:55.200 --> 0:14:57.160 you can always get the latest legal news by going 0:14:57.160 --> 0:15:01.240 to our Bloomberg Law podcast. You can find them on iTunes, SoundCloud, 0:15:01.360 --> 0:15:05.760 or Bloomberg dot com Slash podcast Slash Law. I'm June Grosso, 0:15:05.960 --> 0:15:08.360 Thanks so much for listening, and remember to tune to 0:15:08.360 --> 0:15:11.240 The Bloomberg Law Show weeknights at ten pm Eastern, right 0:15:11.280 --> 0:15:18.000 here on Bloomberg Radio. Than