1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:05,880 --> 00:00:09,880 Speaker 1: The Supreme Court expanded religious liberties, including one that struck 3 00:00:09,920 --> 00:00:13,720 Speaker 1: another blow to the contraceptive mandate in obamacarem In a 4 00:00:13,840 --> 00:00:17,160 Speaker 1: seven to two vote, the Court upheld the Trump administration's 5 00:00:17,239 --> 00:00:21,240 Speaker 1: expansion of the religious exemption to the mandate, giving employers 6 00:00:21,280 --> 00:00:24,160 Speaker 1: a broad right to refuse to offer birth control through 7 00:00:24,200 --> 00:00:27,320 Speaker 1: their health plans. It was the third time the Supreme 8 00:00:27,360 --> 00:00:31,200 Speaker 1: Court has ruled in the fractious debate over the contraceptive mandate, 9 00:00:31,600 --> 00:00:35,519 Speaker 1: and during your arguments, Chief Justice John Roberts expressed some 10 00:00:35,560 --> 00:00:38,479 Speaker 1: frustration that neither side seemed to want to work the 11 00:00:38,520 --> 00:00:41,519 Speaker 1: problem out. Well, the problem is that neither side in 12 00:00:41,560 --> 00:00:44,880 Speaker 1: this debate wants the accommodation to work. The one side 13 00:00:44,880 --> 00:00:46,720 Speaker 1: doesn't want it to work because they want to say 14 00:00:46,720 --> 00:00:49,840 Speaker 1: the mandate is required, and the other side doesn't want 15 00:00:49,880 --> 00:00:54,640 Speaker 1: it to work because they want to uh impose the mandate? Uh. 16 00:00:54,840 --> 00:00:56,720 Speaker 1: Is it really the case that there is no way 17 00:00:56,760 --> 00:01:00,720 Speaker 1: to resolve those differences? But just as Ruth Bade Ginsburg, 18 00:01:00,800 --> 00:01:04,560 Speaker 1: who dissented in the case with Justice Sonia Sotomayor, conveyed 19 00:01:04,600 --> 00:01:07,600 Speaker 1: her concern for the women who would immediately lose access 20 00:01:07,720 --> 00:01:12,160 Speaker 1: to free contraception as many as one thousand, four hundred 21 00:01:12,319 --> 00:01:16,120 Speaker 1: according to a government estimate. At the end of the day, 22 00:01:16,760 --> 00:01:21,640 Speaker 1: the government is throwing into the wind the women's entitlement 23 00:01:21,760 --> 00:01:26,720 Speaker 1: to seamless no cost to them. It is requiring those 24 00:01:26,800 --> 00:01:31,720 Speaker 1: women to pay for contraceptive services. Joining me is Richard Garnett, 25 00:01:31,720 --> 00:01:35,479 Speaker 1: a professor at Notre Dame Law School. In three cases 26 00:01:35,680 --> 00:01:42,319 Speaker 1: involving religion, this term the decisions expanded religious liberty is 27 00:01:42,360 --> 00:01:46,600 Speaker 1: the line between separation of church and state moving or blurring. 28 00:01:47,280 --> 00:01:49,840 Speaker 1: So as I see it, it's worth distinguishing among these 29 00:01:49,880 --> 00:01:53,960 Speaker 1: three cases in the sense that decisions involving the Catholic 30 00:01:53,960 --> 00:01:57,720 Speaker 1: schools and teachers and the Ministry of Exception that case 31 00:01:57,840 --> 00:02:02,600 Speaker 1: is best seen as involving and vindicating the separation of 32 00:02:02,640 --> 00:02:04,600 Speaker 1: church and state. That is the if you think about 33 00:02:04,600 --> 00:02:08,560 Speaker 1: what the core idea in the separation of church and 34 00:02:08,600 --> 00:02:11,040 Speaker 1: state is that the government should lack the power to 35 00:02:11,120 --> 00:02:14,000 Speaker 1: decide who's going to be a minister or a bishop. 36 00:02:14,040 --> 00:02:16,040 Speaker 1: I mean, if you think of the oldest church state 37 00:02:16,040 --> 00:02:19,840 Speaker 1: controversies that we have are when kings wanted to decide 38 00:02:19,880 --> 00:02:22,880 Speaker 1: who was going to run the church and the principle 39 00:02:23,000 --> 00:02:27,280 Speaker 1: that was applied in the in the school's cases today 40 00:02:27,720 --> 00:02:31,280 Speaker 1: should be seen as a decision that affirmed the separation 41 00:02:31,280 --> 00:02:34,040 Speaker 1: of church and state. It affirmed that secular and civil 42 00:02:34,040 --> 00:02:42,320 Speaker 1: courts shouldn't be interfering or inserting themselves into essentially religious questions. Now, 43 00:02:42,800 --> 00:02:46,280 Speaker 1: let's move to the Little Sister's case. That case, at 44 00:02:46,280 --> 00:02:48,840 Speaker 1: this point, since been going on for so long, is 45 00:02:48,919 --> 00:02:53,280 Speaker 1: really a case about administrative law and procedure. But if 46 00:02:53,320 --> 00:02:56,800 Speaker 1: you scrape off the top, get down a little deeper, 47 00:02:57,520 --> 00:02:59,480 Speaker 1: it is the case about whether the government's allowed to 48 00:02:59,720 --> 00:03:04,119 Speaker 1: a comidate religion. But in the American tradition, we've never 49 00:03:04,120 --> 00:03:07,519 Speaker 1: thought that the separation of church and state prevents accommodations. 50 00:03:07,680 --> 00:03:10,640 Speaker 1: We've sometimes said that the constitution doesn't require them, and 51 00:03:10,680 --> 00:03:12,880 Speaker 1: we've said in some context that even if you have 52 00:03:12,919 --> 00:03:16,480 Speaker 1: a religious objection to a law, you're not constitutionally entitled 53 00:03:16,480 --> 00:03:20,880 Speaker 1: to an exemption. But when legislatures or government officials crafts 54 00:03:20,960 --> 00:03:23,519 Speaker 1: laws in such a way that religious people are accommodated, 55 00:03:24,120 --> 00:03:26,120 Speaker 1: in our tradition, again we haven't thought that violates the 56 00:03:26,120 --> 00:03:29,200 Speaker 1: separation of church and state. The case that represents, I 57 00:03:29,200 --> 00:03:34,079 Speaker 1: think the most kind of striking development is the Espinosa 58 00:03:34,160 --> 00:03:37,320 Speaker 1: case from Montana, which you mentioned about the blame amendments 59 00:03:37,360 --> 00:03:40,880 Speaker 1: and the funding of religious schools. As you know, there 60 00:03:40,920 --> 00:03:43,960 Speaker 1: was a there was a time in American constitutional law 61 00:03:44,040 --> 00:03:47,800 Speaker 1: and the sixties, seventies and early eighties when people thought 62 00:03:47,840 --> 00:03:50,400 Speaker 1: that the a lot of justice is thought too that 63 00:03:50,520 --> 00:03:53,840 Speaker 1: the separation of church and state required that the government 64 00:03:53,920 --> 00:03:58,080 Speaker 1: not fund, not even advanced in any way, even indirectly, 65 00:03:58,640 --> 00:04:01,240 Speaker 1: the missions of religious schools. Now where the doctrines move, 66 00:04:01,320 --> 00:04:05,360 Speaker 1: there is that so long as the government is being 67 00:04:05,440 --> 00:04:10,000 Speaker 1: neutral and treating private and secular alternatives alike, that this 68 00:04:10,080 --> 00:04:13,120 Speaker 1: kind of cooperation is okay. But certainly I think there 69 00:04:13,160 --> 00:04:18,000 Speaker 1: are there are lines that are kind of universally recognized 70 00:04:18,040 --> 00:04:19,680 Speaker 1: in addition to the to the ones that we're in 71 00:04:19,720 --> 00:04:23,880 Speaker 1: the ministry exception cases. Today, all the justices would agree 72 00:04:23,960 --> 00:04:29,240 Speaker 1: that the government could never require or coerce involvement in 73 00:04:29,279 --> 00:04:33,240 Speaker 1: religious activities or prayer or anything of that kind. I 74 00:04:33,279 --> 00:04:36,359 Speaker 1: think all the justices agree, as they should, that the 75 00:04:36,360 --> 00:04:41,200 Speaker 1: government shouldn't have any role in deciding what particular churches, 76 00:04:41,680 --> 00:04:46,760 Speaker 1: um liturgy or rituals or ministerial training should be. So 77 00:04:46,800 --> 00:04:49,520 Speaker 1: in a sense, I think we're we're arriving at a 78 00:04:49,560 --> 00:04:53,719 Speaker 1: place that is consistent with the historical understanding of what 79 00:04:54,240 --> 00:04:57,520 Speaker 1: the important principle of church state separation involved, which was 80 00:04:57,600 --> 00:05:02,440 Speaker 1: keeping political and religious authority distinct. And I think we're 81 00:05:02,560 --> 00:05:06,160 Speaker 1: kind of moving away from the view that again was 82 00:05:07,080 --> 00:05:11,159 Speaker 1: probably on offer in the nineties and seventies, which was 83 00:05:11,240 --> 00:05:16,880 Speaker 1: hostile to any form of sort of cooperation between faith 84 00:05:17,160 --> 00:05:21,040 Speaker 1: and the public square. Let's discuss the cases separately now, 85 00:05:21,200 --> 00:05:26,240 Speaker 1: So the case involving the contraceptive mandate, the Trump administration 86 00:05:26,400 --> 00:05:30,479 Speaker 1: expanded the ability to opt out of paying for contraceptive 87 00:05:30,560 --> 00:05:35,799 Speaker 1: coverage from houses of worship to include publicly traded companies 88 00:05:35,800 --> 00:05:41,440 Speaker 1: and universities with religious or moral objections to contraception. Tell 89 00:05:41,520 --> 00:05:45,360 Speaker 1: us about that decision. The Court's ruling was focused primarily 90 00:05:45,560 --> 00:05:50,400 Speaker 1: on whether or not the administration followed the correct procedures 91 00:05:51,040 --> 00:05:54,120 Speaker 1: when it created this accommodation. So it's mainly an administrative 92 00:05:54,160 --> 00:05:57,359 Speaker 1: law opinion. The court's opinion is not really about whether 93 00:05:57,480 --> 00:06:00,440 Speaker 1: or not this exemption is a good idea. Now, as 94 00:06:00,480 --> 00:06:05,800 Speaker 1: you said, the Trump administration expanded the religious exemption that 95 00:06:05,920 --> 00:06:08,920 Speaker 1: the Supreme Court had affirmed in Hobby Lobby, for example, 96 00:06:08,960 --> 00:06:12,600 Speaker 1: several years ago, to include entities that had quote moral, 97 00:06:12,720 --> 00:06:17,440 Speaker 1: not just religious, but moral objections to providing conception coverage 98 00:06:17,520 --> 00:06:20,520 Speaker 1: in their insurance policies. Reasonable people can disagree about whether 99 00:06:20,520 --> 00:06:24,400 Speaker 1: that expansion is good policy. The Religious Freedom Restoration Act, 100 00:06:25,040 --> 00:06:31,080 Speaker 1: which arguably does require an exemption for religious employers, wouldn't 101 00:06:31,080 --> 00:06:35,600 Speaker 1: apply to employers that have moral but not religious objections. 102 00:06:35,640 --> 00:06:38,800 Speaker 1: So the accommodation that was provided does go beyond what 103 00:06:38,960 --> 00:06:42,039 Speaker 1: the federal religious freedom law arguably requires. But in a 104 00:06:42,080 --> 00:06:44,400 Speaker 1: sense that's fine. The question is just whether the administration 105 00:06:44,520 --> 00:06:47,000 Speaker 1: kind of followed the correct procedure for creating this exemption. 106 00:06:47,240 --> 00:06:49,600 Speaker 1: I've been talked to professor Richard Garnett of the Notre 107 00:06:49,720 --> 00:06:53,800 Speaker 1: Dame Law School about cases involving religious liberties. The Supreme 108 00:06:53,839 --> 00:06:56,800 Speaker 1: Court handed down to Ricky said that the case involving 109 00:06:56,920 --> 00:07:00,480 Speaker 1: the contraceptive mandate was basically an admit a strait of 110 00:07:00,560 --> 00:07:04,200 Speaker 1: law case. How did Justice Thomas answer the claims that 111 00:07:04,279 --> 00:07:09,080 Speaker 1: the Trump administration had not followed the correct procedures? Yeah, 112 00:07:09,160 --> 00:07:12,400 Speaker 1: so there's a law called the Administrative Procedure Actors, and 113 00:07:12,440 --> 00:07:16,640 Speaker 1: there's other precedents and practices that require certain pathways to 114 00:07:16,680 --> 00:07:20,480 Speaker 1: be followed before administrative rules are changed. The challengers to 115 00:07:20,600 --> 00:07:24,680 Speaker 1: this exemption said that the administration kind of didn't dot 116 00:07:24,720 --> 00:07:26,880 Speaker 1: all the eyes and cross all the teas that were required, 117 00:07:27,040 --> 00:07:30,240 Speaker 1: and Justice Thomas for the court said, yes, they did, 118 00:07:30,640 --> 00:07:33,600 Speaker 1: but there wasn't any kind of unlawful departure from the 119 00:07:33,600 --> 00:07:36,440 Speaker 1: procedures that are required in order for an agency to 120 00:07:36,560 --> 00:07:38,600 Speaker 1: change its rules. You know, the idea here is that, 121 00:07:38,640 --> 00:07:40,640 Speaker 1: you know, it's often the case, and we might well 122 00:07:40,640 --> 00:07:42,400 Speaker 1: see this in a couple of months, that when a 123 00:07:42,440 --> 00:07:46,000 Speaker 1: new administration comes in and has different priorities and agencies 124 00:07:46,200 --> 00:07:48,120 Speaker 1: adjust the rules, we want to make sure they don't 125 00:07:48,240 --> 00:07:51,520 Speaker 1: change their rules and kind of a haphazard or random fashion. 126 00:07:51,960 --> 00:07:53,800 Speaker 1: And so courts do want to make sure that they 127 00:07:53,880 --> 00:07:57,240 Speaker 1: follow the proper procedures. And here again, whether one likes 128 00:07:57,280 --> 00:08:00,360 Speaker 1: the new accommodation or not, the question is really, well, 129 00:08:00,480 --> 00:08:04,480 Speaker 1: is this administration following the correct procedure to put into 130 00:08:04,480 --> 00:08:06,920 Speaker 1: place the rules that it wanted. And we've seen in 131 00:08:06,920 --> 00:08:08,880 Speaker 1: some other cases the court telling the administration that it 132 00:08:08,920 --> 00:08:11,160 Speaker 1: hadn't followed the proper procedures right in the in the 133 00:08:11,200 --> 00:08:14,000 Speaker 1: census case or in the recent case about the DOCTA, 134 00:08:14,400 --> 00:08:17,640 Speaker 1: we had instances where the court told the administration you 135 00:08:17,720 --> 00:08:20,360 Speaker 1: didn't do this right. But in this case, the Court 136 00:08:20,400 --> 00:08:23,920 Speaker 1: thought the administration had followed the proper procedures and that 137 00:08:23,960 --> 00:08:26,800 Speaker 1: the accommodation was therefore permissible. The Court didn't say that 138 00:08:26,800 --> 00:08:31,320 Speaker 1: the accommodation was required by the Constitution, just that it's permissible. 139 00:08:31,880 --> 00:08:37,320 Speaker 1: Justices Elina Kiggainst. Stephen Ryer joined the majority, but Kagan 140 00:08:37,320 --> 00:08:40,000 Speaker 1: wrote a concurring opinion, and she said the lower courts 141 00:08:40,080 --> 00:08:44,800 Speaker 1: could still consider arguments that the administration didn't engage in 142 00:08:44,960 --> 00:08:49,319 Speaker 1: reason decision making. What is she referring to here, So, 143 00:08:49,440 --> 00:08:53,120 Speaker 1: in administrative law, you have questions about sort of following 144 00:08:53,120 --> 00:08:57,319 Speaker 1: the correct procedures, but you also have questions that involve 145 00:08:57,800 --> 00:09:01,640 Speaker 1: making sure that agencies are, as she put it, engaged 146 00:09:01,679 --> 00:09:04,360 Speaker 1: in reason decision making, that they're not being kind of 147 00:09:04,480 --> 00:09:07,160 Speaker 1: arbitrary and capricious, that the records built up well enough. 148 00:09:07,520 --> 00:09:09,600 Speaker 1: And I take her point to be that since this 149 00:09:09,679 --> 00:09:13,760 Speaker 1: particular case involved challenges more to the procedure that the 150 00:09:13,800 --> 00:09:17,480 Speaker 1: administration had followed, that it would still be possible, you know, again, 151 00:09:17,520 --> 00:09:20,200 Speaker 1: in a later stage in this litigation, that this litigation 152 00:09:20,280 --> 00:09:23,640 Speaker 1: keeps ongoing to say, Okay, maybe it is true that 153 00:09:23,679 --> 00:09:26,440 Speaker 1: the proper pathways were followed. But it's still the case 154 00:09:26,480 --> 00:09:30,640 Speaker 1: that the agencies have to provide some evidence that they 155 00:09:30,760 --> 00:09:34,760 Speaker 1: rationally considered all factors and balanced all costs of benefits, 156 00:09:34,840 --> 00:09:37,400 Speaker 1: and that maybe that didn't happen here. So for some 157 00:09:37,520 --> 00:09:40,400 Speaker 1: who are wondering, like will this case about the contraception 158 00:09:40,440 --> 00:09:43,960 Speaker 1: mandate ever end? I think that Justice Kagan's point might 159 00:09:43,960 --> 00:09:46,440 Speaker 1: have been, well, it's not necessarily over yet, there's still 160 00:09:46,440 --> 00:09:50,240 Speaker 1: other other bases to challenge it. But Justice Kegan agrees 161 00:09:50,280 --> 00:09:54,080 Speaker 1: that the challenge in this case didn't go through. What 162 00:09:54,200 --> 00:09:58,360 Speaker 1: happens now. I thought that this was okay, they're good 163 00:09:58,400 --> 00:10:00,600 Speaker 1: to go on this. Now. I don't know what's going 164 00:10:00,600 --> 00:10:02,520 Speaker 1: to happen next. I take her to be saying this 165 00:10:02,600 --> 00:10:05,120 Speaker 1: is something that could happen. But obviously it's a it's 166 00:10:05,120 --> 00:10:10,439 Speaker 1: a question whether litigants will decide to bring a different 167 00:10:11,240 --> 00:10:15,320 Speaker 1: challenge again, one that's more substantive and less procedural to 168 00:10:15,440 --> 00:10:17,920 Speaker 1: this particular accommodation. And of course, you know, given that 169 00:10:17,960 --> 00:10:20,120 Speaker 1: we're coming up on an election and there might well 170 00:10:20,200 --> 00:10:24,080 Speaker 1: be a change in administration, you could very well see 171 00:10:24,520 --> 00:10:29,319 Speaker 1: a new administration trying to change the very regulations that 172 00:10:29,360 --> 00:10:31,480 Speaker 1: were an issue in this case. So we have to 173 00:10:31,520 --> 00:10:34,400 Speaker 1: wait and see. Splite one thing. Well, let's say you 174 00:10:34,440 --> 00:10:38,360 Speaker 1: have a publicly traded company and they say we have 175 00:10:38,640 --> 00:10:42,720 Speaker 1: moral objections to contraceptives. Is that all they have to do? 176 00:10:42,720 --> 00:10:44,640 Speaker 1: Do they have to do anything to prove that they 177 00:10:44,679 --> 00:10:47,200 Speaker 1: actually have those and they're not just trying to get 178 00:10:47,520 --> 00:10:52,079 Speaker 1: away with not paying for contraceptive coverage. Yeah. Generally speaking, 179 00:10:52,240 --> 00:10:58,080 Speaker 1: in cases involving religious exemptions, courts may and do inquire 180 00:10:58,160 --> 00:11:01,520 Speaker 1: into whether the claim is quotes fear. So there has 181 00:11:01,559 --> 00:11:07,400 Speaker 1: to be some evidence that the asserted objection is, you know, 182 00:11:07,520 --> 00:11:09,880 Speaker 1: being made in good faith. The question is that whether 183 00:11:09,920 --> 00:11:12,120 Speaker 1: the objectors are right. You know, the courts are supposed 184 00:11:12,120 --> 00:11:13,440 Speaker 1: to get into the question of, you know, what's the 185 00:11:13,480 --> 00:11:16,240 Speaker 1: moral right answer to this question, but you're allowed to 186 00:11:16,240 --> 00:11:18,600 Speaker 1: ask whether a claimant is sincere. Courts do this all 187 00:11:18,600 --> 00:11:22,319 Speaker 1: the time. If you think back to the hobby Lobby case. Um, 188 00:11:22,360 --> 00:11:25,600 Speaker 1: you know, there was plenty of evidence that the owners 189 00:11:25,640 --> 00:11:30,000 Speaker 1: of Hobby Lobby did have certain religious beliefs, that they 190 00:11:30,000 --> 00:11:32,840 Speaker 1: were representing them accurately and so on. But you know, 191 00:11:32,880 --> 00:11:36,560 Speaker 1: presumably if Ford Motor Company were to come forward and say, 192 00:11:37,400 --> 00:11:39,160 Speaker 1: we don't want to do this anymore, we don't want 193 00:11:39,200 --> 00:11:42,520 Speaker 1: to provide these benefits because we have a religious objection 194 00:11:42,880 --> 00:11:44,719 Speaker 1: of court, which they will show me one bit of 195 00:11:44,800 --> 00:11:47,120 Speaker 1: evidence that you have this objection or that you've ever 196 00:11:47,280 --> 00:11:49,600 Speaker 1: tried to assert it in other cases, and I suspect 197 00:11:49,600 --> 00:11:52,160 Speaker 1: the court would be pretty skeptical about that. And of 198 00:11:52,160 --> 00:11:56,120 Speaker 1: course it's not clear at all that publicly traded corporations 199 00:11:56,160 --> 00:12:00,960 Speaker 1: have any incentive to gain this particular account adation, since 200 00:12:00,960 --> 00:12:05,840 Speaker 1: there's a lot of evidence that UM providing contraception coverage 201 00:12:06,120 --> 00:12:11,280 Speaker 1: to employees says corporations money. So that would suggest that 202 00:12:11,320 --> 00:12:15,120 Speaker 1: when a corporation does as certain objection, like Hobby Lobby did, 203 00:12:15,480 --> 00:12:17,840 Speaker 1: they probably are sincere because they're not trying to again, 204 00:12:17,840 --> 00:12:20,640 Speaker 1: they're not trying to get some kind of financial advantage. 205 00:12:21,040 --> 00:12:25,520 Speaker 1: I remember that during the oral arguments, Justice Ruth Bader Ginsburg, 206 00:12:25,600 --> 00:12:29,360 Speaker 1: who during this argument I believe was taking part from 207 00:12:29,360 --> 00:12:34,280 Speaker 1: the hospital, was very fiery in her questioning how how 208 00:12:34,320 --> 00:12:37,960 Speaker 1: would you characterize her dissent? I would say it was 209 00:12:38,160 --> 00:12:41,160 Speaker 1: kind of in keeping with the tone of our argument. 210 00:12:41,240 --> 00:12:44,680 Speaker 1: You know, um, this is in many ways. I mentioned 211 00:12:44,720 --> 00:12:46,959 Speaker 1: a couple of minutes ago that this case has been 212 00:12:46,960 --> 00:12:50,120 Speaker 1: going on for a long time, and Justice Ginsburg dissented 213 00:12:50,160 --> 00:12:52,720 Speaker 1: in the Hobby Lobby case, she thinks that the the 214 00:12:52,800 --> 00:12:55,560 Speaker 1: policy of the contraception coverage mandate. I think she thinks 215 00:12:55,559 --> 00:12:58,599 Speaker 1: it's a wise policy and that it's certainly legally permissible. 216 00:12:59,600 --> 00:13:04,720 Speaker 1: She objected here quite strongly, obviously, to the administration's decision 217 00:13:04,760 --> 00:13:09,320 Speaker 1: to to revise and to expand the accommodation that had 218 00:13:09,320 --> 00:13:12,400 Speaker 1: been put in place by Obama. She was very direct 219 00:13:12,440 --> 00:13:16,400 Speaker 1: in her disagreement. And let's turn out to the second case, 220 00:13:16,520 --> 00:13:21,600 Speaker 1: the ministerial exception explain the court's decision. Sure, so these 221 00:13:21,600 --> 00:13:25,280 Speaker 1: are two cases that presented basically the same issue. They 222 00:13:25,320 --> 00:13:29,720 Speaker 1: involved parochial school teachers at Catholic schools who've been fired, 223 00:13:30,160 --> 00:13:33,880 Speaker 1: who had then filed employment discrimination claims, and the question 224 00:13:33,960 --> 00:13:38,160 Speaker 1: was whether these claims can go forward given that eight 225 00:13:38,240 --> 00:13:42,120 Speaker 1: years ago, a unanimous Supreme Court said that the First 226 00:13:42,160 --> 00:13:47,040 Speaker 1: Amendment doesn't allow employment discrimination lawsuits to be used as 227 00:13:47,040 --> 00:13:50,600 Speaker 1: a way to kind of second guests religious schools decisions 228 00:13:50,640 --> 00:13:53,720 Speaker 1: about who will or who will not be They use 229 00:13:53,760 --> 00:13:56,200 Speaker 1: the term minister, but you know, a leader, a teacher, 230 00:13:56,559 --> 00:13:59,800 Speaker 1: somebody who plays an important religious role. Um. That was 231 00:14:00,120 --> 00:14:03,880 Speaker 1: years ago, and the Court again had been unanimous in 232 00:14:03,920 --> 00:14:06,079 Speaker 1: a case involving a teacher in a Lutheran school. The 233 00:14:06,200 --> 00:14:09,920 Speaker 1: question here was whether these teachers were any different from 234 00:14:09,960 --> 00:14:12,720 Speaker 1: the teacher in the case eight years ago seven justices, 235 00:14:12,800 --> 00:14:16,160 Speaker 1: So the five Conservatives plus Justice Justices Kagan and Bryer 236 00:14:16,760 --> 00:14:20,640 Speaker 1: agreed that this case presented basically the same issue as 237 00:14:20,680 --> 00:14:24,040 Speaker 1: the Josiana Table case eight years ago, and that because 238 00:14:24,080 --> 00:14:26,760 Speaker 1: the First Amendment both you know, the separation of Church 239 00:14:26,840 --> 00:14:29,720 Speaker 1: and State and the free exercise clause, the First Amendment 240 00:14:29,720 --> 00:14:32,280 Speaker 1: tells governments that they don't get to decide who should 241 00:14:32,320 --> 00:14:36,080 Speaker 1: or who should not be involved in religious education and leadership, 242 00:14:36,280 --> 00:14:38,320 Speaker 1: so that these lawsuits can't go forward because, if you 243 00:14:38,320 --> 00:14:41,200 Speaker 1: think about it, an employment discrimination lawsuit brought by a 244 00:14:41,240 --> 00:14:44,720 Speaker 1: religious school teacher is basically a request to a court 245 00:14:44,760 --> 00:14:47,400 Speaker 1: to tell a religious school, Hey, this person gets to 246 00:14:47,440 --> 00:14:49,000 Speaker 1: be a religious school teacher for you, whether you like 247 00:14:49,040 --> 00:14:53,160 Speaker 1: it or not. The Ninth Circuit Court of Appeals had 248 00:14:53,200 --> 00:14:56,480 Speaker 1: said that these cases could go forward because the Ninth 249 00:14:56,480 --> 00:15:00,280 Speaker 1: Circuit adopted, but the Court told us was a a 250 00:15:00,520 --> 00:15:04,960 Speaker 1: narrow version of this ministry or exception doctrine. And so 251 00:15:05,360 --> 00:15:08,120 Speaker 1: I think, from my perspective anyway, the way to see 252 00:15:08,120 --> 00:15:11,120 Speaker 1: these cases that came down today is that the court 253 00:15:11,160 --> 00:15:13,560 Speaker 1: basically said, we we meant what we said eight years ago. 254 00:15:14,160 --> 00:15:18,520 Speaker 1: The Ninth Circuit was wrong to shrink this doctrine, and 255 00:15:18,560 --> 00:15:22,600 Speaker 1: we're just reaffirming what we said before, mainly that there 256 00:15:22,600 --> 00:15:28,000 Speaker 1: are some employees of religious institutions who are involved in 257 00:15:28,040 --> 00:15:32,680 Speaker 1: the religious mission of those institutions, and that the principle 258 00:15:32,720 --> 00:15:35,080 Speaker 1: of religious freedom and the principle of church state separation 259 00:15:35,240 --> 00:15:39,440 Speaker 1: doesn't allow courts to interfere in the decisions about who 260 00:15:39,440 --> 00:15:42,280 Speaker 1: should or should not be a minister. Did the majority 261 00:15:42,320 --> 00:15:47,440 Speaker 1: opinion give any guidance for who is a teacher who 262 00:15:47,600 --> 00:15:50,680 Speaker 1: is involved in religious education? Does there have to be 263 00:15:50,760 --> 00:15:53,600 Speaker 1: more than just a teacher? In a sense, what the 264 00:15:53,640 --> 00:15:58,520 Speaker 1: majority said today was, you can't reduce this question to 265 00:15:58,680 --> 00:16:01,960 Speaker 1: kind of a bright line test. You can't reduce it 266 00:16:02,000 --> 00:16:05,560 Speaker 1: to the presence or the absence of any one particular factor. So, 267 00:16:05,960 --> 00:16:09,280 Speaker 1: for example, it doesn't matter, or at least, it's not 268 00:16:09,320 --> 00:16:12,200 Speaker 1: the only thing that matters, whether somebody has a title 269 00:16:12,600 --> 00:16:15,960 Speaker 1: of minister or pastor or rabbi, because after all, there's 270 00:16:16,000 --> 00:16:19,960 Speaker 1: lots of religious organizations that might be newer or unfamiliar 271 00:16:20,080 --> 00:16:22,960 Speaker 1: or just different. They don't use those terms, and so 272 00:16:23,000 --> 00:16:25,640 Speaker 1: you wouldn't want to adopt a rule that kind of 273 00:16:25,880 --> 00:16:29,440 Speaker 1: privileged religions that use certain titles over ones that didn't. 274 00:16:29,600 --> 00:16:31,600 Speaker 1: And the court also said, like, there's a real danger 275 00:16:31,840 --> 00:16:34,760 Speaker 1: to make the test depend on, well, how much religious 276 00:16:34,840 --> 00:16:36,880 Speaker 1: training does the person have to have, because then you 277 00:16:36,920 --> 00:16:40,200 Speaker 1: have courts trying to evaluate, you know, what counts as 278 00:16:40,200 --> 00:16:42,440 Speaker 1: religious training and whatnot. So what the court did is 279 00:16:42,480 --> 00:16:44,200 Speaker 1: really just say, you have to look at the function. 280 00:16:44,760 --> 00:16:46,800 Speaker 1: You have to look at what the employee is being 281 00:16:46,840 --> 00:16:50,280 Speaker 1: asked to do by the religious organization, and if the 282 00:16:50,320 --> 00:16:56,640 Speaker 1: employee's role is connected to the religious organization's mission, then 283 00:16:56,680 --> 00:16:59,400 Speaker 1: that employee should be covered. So it's not a bright 284 00:16:59,440 --> 00:17:02,640 Speaker 1: line test. That more the courts saying, look, we articulated 285 00:17:02,680 --> 00:17:05,760 Speaker 1: this principle eight years ago. The Ninth Circuit tried to 286 00:17:05,760 --> 00:17:09,760 Speaker 1: convert that principle into a more of a mechanical test, 287 00:17:09,960 --> 00:17:12,040 Speaker 1: and the Court here said, that's not what we want. 288 00:17:12,280 --> 00:17:16,320 Speaker 1: We want courts to be appropriately deferential to the fact 289 00:17:16,400 --> 00:17:20,080 Speaker 1: that different religions have different ways of arranging themselves, and 290 00:17:20,160 --> 00:17:23,959 Speaker 1: that courts should ask the more general questions, is this 291 00:17:24,040 --> 00:17:28,639 Speaker 1: employee playing a part in the religious mission of the institution, 292 00:17:28,680 --> 00:17:30,960 Speaker 1: And if the employee is, then it should be up 293 00:17:31,000 --> 00:17:33,879 Speaker 1: to the religious institution to decide, for better or worse, 294 00:17:34,320 --> 00:17:37,680 Speaker 1: whether to hire or fire that person. Thanks Rick, That's 295 00:17:37,800 --> 00:17:40,760 Speaker 1: Richard Garnett of Notre Dame Law School, and that's UT 296 00:17:40,800 --> 00:17:43,960 Speaker 1: for this edition of Bloomberg Law. I'm June Grossel. Thanks 297 00:17:44,000 --> 00:17:46,200 Speaker 1: so much for listening, and remember to tune in to 298 00:17:46,240 --> 00:17:48,440 Speaker 1: The Bloomberg Lawn Show every week now at ten DM 299 00:17:48,520 --> 00:17:50,480 Speaker 1: Eastern right here on Bloomberg Radio.