WEBVTT - Supreme Court Expands Religious Liberties 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.880 --> 0:00:09.880 The Supreme Court expanded religious liberties, including one that struck 0:00:09.920 --> 0:00:13.720 another blow to the contraceptive mandate in obamacarem In a 0:00:13.840 --> 0:00:17.160 seven to two vote, the Court upheld the Trump administration's 0:00:17.239 --> 0:00:21.240 expansion of the religious exemption to the mandate, giving employers 0:00:21.280 --> 0:00:24.160 a broad right to refuse to offer birth control through 0:00:24.200 --> 0:00:27.320 their health plans. It was the third time the Supreme 0:00:27.360 --> 0:00:31.200 Court has ruled in the fractious debate over the contraceptive mandate, 0:00:31.600 --> 0:00:35.519 and during your arguments, Chief Justice John Roberts expressed some 0:00:35.560 --> 0:00:38.479 frustration that neither side seemed to want to work the 0:00:38.520 --> 0:00:41.519 problem out. Well, the problem is that neither side in 0:00:41.560 --> 0:00:44.880 this debate wants the accommodation to work. The one side 0:00:44.880 --> 0:00:46.720 doesn't want it to work because they want to say 0:00:46.720 --> 0:00:49.840 the mandate is required, and the other side doesn't want 0:00:49.880 --> 0:00:54.640 it to work because they want to uh impose the mandate? Uh. 0:00:54.840 --> 0:00:56.720 Is it really the case that there is no way 0:00:56.760 --> 0:01:00.720 to resolve those differences? But just as Ruth Bade Ginsburg, 0:01:00.800 --> 0:01:04.560 who dissented in the case with Justice Sonia Sotomayor, conveyed 0:01:04.600 --> 0:01:07.600 her concern for the women who would immediately lose access 0:01:07.720 --> 0:01:12.160 to free contraception as many as one thousand, four hundred 0:01:12.319 --> 0:01:16.120 according to a government estimate. At the end of the day, 0:01:16.760 --> 0:01:21.640 the government is throwing into the wind the women's entitlement 0:01:21.760 --> 0:01:26.720 to seamless no cost to them. It is requiring those 0:01:26.800 --> 0:01:31.720 women to pay for contraceptive services. Joining me is Richard Garnett, 0:01:31.720 --> 0:01:35.479 a professor at Notre Dame Law School. In three cases 0:01:35.680 --> 0:01:42.319 involving religion, this term the decisions expanded religious liberty is 0:01:42.360 --> 0:01:46.600 the line between separation of church and state moving or blurring. 0:01:47.280 --> 0:01:49.840 So as I see it, it's worth distinguishing among these 0:01:49.880 --> 0:01:53.960 three cases in the sense that decisions involving the Catholic 0:01:53.960 --> 0:01:57.720 schools and teachers and the Ministry of Exception that case 0:01:57.840 --> 0:02:02.600 is best seen as involving and vindicating the separation of 0:02:02.640 --> 0:02:04.600 church and state. That is the if you think about 0:02:04.600 --> 0:02:08.560 what the core idea in the separation of church and 0:02:08.600 --> 0:02:11.040 state is that the government should lack the power to 0:02:11.120 --> 0:02:14.000 decide who's going to be a minister or a bishop. 0:02:14.040 --> 0:02:16.040 I mean, if you think of the oldest church state 0:02:16.040 --> 0:02:19.840 controversies that we have are when kings wanted to decide 0:02:19.880 --> 0:02:22.880 who was going to run the church and the principle 0:02:23.000 --> 0:02:27.280 that was applied in the in the school's cases today 0:02:27.720 --> 0:02:31.280 should be seen as a decision that affirmed the separation 0:02:31.280 --> 0:02:34.040 of church and state. It affirmed that secular and civil 0:02:34.040 --> 0:02:42.320 courts shouldn't be interfering or inserting themselves into essentially religious questions. Now, 0:02:42.800 --> 0:02:46.280 let's move to the Little Sister's case. That case, at 0:02:46.280 --> 0:02:48.840 this point, since been going on for so long, is 0:02:48.919 --> 0:02:53.280 really a case about administrative law and procedure. But if 0:02:53.320 --> 0:02:56.800 you scrape off the top, get down a little deeper, 0:02:57.520 --> 0:02:59.480 it is the case about whether the government's allowed to 0:02:59.720 --> 0:03:04.119 a comidate religion. But in the American tradition, we've never 0:03:04.120 --> 0:03:07.519 thought that the separation of church and state prevents accommodations. 0:03:07.680 --> 0:03:10.640 We've sometimes said that the constitution doesn't require them, and 0:03:10.680 --> 0:03:12.880 we've said in some context that even if you have 0:03:12.919 --> 0:03:16.480 a religious objection to a law, you're not constitutionally entitled 0:03:16.480 --> 0:03:20.880 to an exemption. But when legislatures or government officials crafts 0:03:20.960 --> 0:03:23.519 laws in such a way that religious people are accommodated, 0:03:24.120 --> 0:03:26.120 in our tradition, again we haven't thought that violates the 0:03:26.120 --> 0:03:29.200 separation of church and state. The case that represents, I 0:03:29.200 --> 0:03:34.079 think the most kind of striking development is the Espinosa 0:03:34.160 --> 0:03:37.320 case from Montana, which you mentioned about the blame amendments 0:03:37.360 --> 0:03:40.880 and the funding of religious schools. As you know, there 0:03:40.920 --> 0:03:43.960 was a there was a time in American constitutional law 0:03:44.040 --> 0:03:47.800 and the sixties, seventies and early eighties when people thought 0:03:47.840 --> 0:03:50.400 that the a lot of justice is thought too that 0:03:50.520 --> 0:03:53.840 the separation of church and state required that the government 0:03:53.920 --> 0:03:58.080 not fund, not even advanced in any way, even indirectly, 0:03:58.640 --> 0:04:01.240 the missions of religious schools. Now where the doctrines move, 0:04:01.320 --> 0:04:05.360 there is that so long as the government is being 0:04:05.440 --> 0:04:10.000 neutral and treating private and secular alternatives alike, that this 0:04:10.080 --> 0:04:13.120 kind of cooperation is okay. But certainly I think there 0:04:13.160 --> 0:04:18.000 are there are lines that are kind of universally recognized 0:04:18.040 --> 0:04:19.680 in addition to the to the ones that we're in 0:04:19.720 --> 0:04:23.880 the ministry exception cases. Today, all the justices would agree 0:04:23.960 --> 0:04:29.240 that the government could never require or coerce involvement in 0:04:29.279 --> 0:04:33.240 religious activities or prayer or anything of that kind. I 0:04:33.279 --> 0:04:36.359 think all the justices agree, as they should, that the 0:04:36.360 --> 0:04:41.200 government shouldn't have any role in deciding what particular churches, 0:04:41.680 --> 0:04:46.760 um liturgy or rituals or ministerial training should be. So 0:04:46.800 --> 0:04:49.520 in a sense, I think we're we're arriving at a 0:04:49.560 --> 0:04:53.719 place that is consistent with the historical understanding of what 0:04:54.240 --> 0:04:57.520 the important principle of church state separation involved, which was 0:04:57.600 --> 0:05:02.440 keeping political and religious authority distinct. And I think we're 0:05:02.560 --> 0:05:06.160 kind of moving away from the view that again was 0:05:07.080 --> 0:05:11.159 probably on offer in the nineties and seventies, which was 0:05:11.240 --> 0:05:16.880 hostile to any form of sort of cooperation between faith 0:05:17.160 --> 0:05:21.040 and the public square. Let's discuss the cases separately now, 0:05:21.200 --> 0:05:26.240 So the case involving the contraceptive mandate, the Trump administration 0:05:26.400 --> 0:05:30.479 expanded the ability to opt out of paying for contraceptive 0:05:30.560 --> 0:05:35.799 coverage from houses of worship to include publicly traded companies 0:05:35.800 --> 0:05:41.440 and universities with religious or moral objections to contraception. Tell 0:05:41.520 --> 0:05:45.360 us about that decision. The Court's ruling was focused primarily 0:05:45.560 --> 0:05:50.400 on whether or not the administration followed the correct procedures 0:05:51.040 --> 0:05:54.120 when it created this accommodation. So it's mainly an administrative 0:05:54.160 --> 0:05:57.359 law opinion. The court's opinion is not really about whether 0:05:57.480 --> 0:06:00.440 or not this exemption is a good idea. Now, as 0:06:00.480 --> 0:06:05.800 you said, the Trump administration expanded the religious exemption that 0:06:05.920 --> 0:06:08.920 the Supreme Court had affirmed in Hobby Lobby, for example, 0:06:08.960 --> 0:06:12.600 several years ago, to include entities that had quote moral, 0:06:12.720 --> 0:06:17.440 not just religious, but moral objections to providing conception coverage 0:06:17.520 --> 0:06:20.520 in their insurance policies. Reasonable people can disagree about whether 0:06:20.520 --> 0:06:24.400 that expansion is good policy. The Religious Freedom Restoration Act, 0:06:25.040 --> 0:06:31.080 which arguably does require an exemption for religious employers, wouldn't 0:06:31.080 --> 0:06:35.600 apply to employers that have moral but not religious objections. 0:06:35.640 --> 0:06:38.800 So the accommodation that was provided does go beyond what 0:06:38.960 --> 0:06:42.039 the federal religious freedom law arguably requires. But in a 0:06:42.080 --> 0:06:44.400 sense that's fine. The question is just whether the administration 0:06:44.520 --> 0:06:47.000 kind of followed the correct procedure for creating this exemption. 0:06:47.240 --> 0:06:49.600 I've been talked to professor Richard Garnett of the Notre 0:06:49.720 --> 0:06:53.800 Dame Law School about cases involving religious liberties. The Supreme 0:06:53.839 --> 0:06:56.800 Court handed down to Ricky said that the case involving 0:06:56.920 --> 0:07:00.480 the contraceptive mandate was basically an admit a strait of 0:07:00.560 --> 0:07:04.200 law case. How did Justice Thomas answer the claims that 0:07:04.279 --> 0:07:09.080 the Trump administration had not followed the correct procedures? Yeah, 0:07:09.160 --> 0:07:12.400 so there's a law called the Administrative Procedure Actors, and 0:07:12.440 --> 0:07:16.640 there's other precedents and practices that require certain pathways to 0:07:16.680 --> 0:07:20.480 be followed before administrative rules are changed. The challengers to 0:07:20.600 --> 0:07:24.680 this exemption said that the administration kind of didn't dot 0:07:24.720 --> 0:07:26.880 all the eyes and cross all the teas that were required, 0:07:27.040 --> 0:07:30.240 and Justice Thomas for the court said, yes, they did, 0:07:30.640 --> 0:07:33.600 but there wasn't any kind of unlawful departure from the 0:07:33.600 --> 0:07:36.440 procedures that are required in order for an agency to 0:07:36.560 --> 0:07:38.600 change its rules. You know, the idea here is that, 0:07:38.640 --> 0:07:40.640 you know, it's often the case, and we might well 0:07:40.640 --> 0:07:42.400 see this in a couple of months, that when a 0:07:42.440 --> 0:07:46.000 new administration comes in and has different priorities and agencies 0:07:46.200 --> 0:07:48.120 adjust the rules, we want to make sure they don't 0:07:48.240 --> 0:07:51.520 change their rules and kind of a haphazard or random fashion. 0:07:51.960 --> 0:07:53.800 And so courts do want to make sure that they 0:07:53.880 --> 0:07:57.240 follow the proper procedures. And here again, whether one likes 0:07:57.280 --> 0:08:00.360 the new accommodation or not, the question is really, well, 0:08:00.480 --> 0:08:04.480 is this administration following the correct procedure to put into 0:08:04.480 --> 0:08:06.920 place the rules that it wanted. And we've seen in 0:08:06.920 --> 0:08:08.880 some other cases the court telling the administration that it 0:08:08.920 --> 0:08:11.160 hadn't followed the proper procedures right in the in the 0:08:11.200 --> 0:08:14.000 census case or in the recent case about the DOCTA, 0:08:14.400 --> 0:08:17.640 we had instances where the court told the administration you 0:08:17.720 --> 0:08:20.360 didn't do this right. But in this case, the Court 0:08:20.400 --> 0:08:23.920 thought the administration had followed the proper procedures and that 0:08:23.960 --> 0:08:26.800 the accommodation was therefore permissible. The Court didn't say that 0:08:26.800 --> 0:08:31.320 the accommodation was required by the Constitution, just that it's permissible. 0:08:31.880 --> 0:08:37.320 Justices Elina Kiggainst. Stephen Ryer joined the majority, but Kagan 0:08:37.320 --> 0:08:40.000 wrote a concurring opinion, and she said the lower courts 0:08:40.080 --> 0:08:44.800 could still consider arguments that the administration didn't engage in 0:08:44.960 --> 0:08:49.319 reason decision making. What is she referring to here, So, 0:08:49.440 --> 0:08:53.120 in administrative law, you have questions about sort of following 0:08:53.120 --> 0:08:57.319 the correct procedures, but you also have questions that involve 0:08:57.800 --> 0:09:01.640 making sure that agencies are, as she put it, engaged 0:09:01.679 --> 0:09:04.360 in reason decision making, that they're not being kind of 0:09:04.480 --> 0:09:07.160 arbitrary and capricious, that the records built up well enough. 0:09:07.520 --> 0:09:09.600 And I take her point to be that since this 0:09:09.679 --> 0:09:13.760 particular case involved challenges more to the procedure that the 0:09:13.800 --> 0:09:17.480 administration had followed, that it would still be possible, you know, again, 0:09:17.520 --> 0:09:20.200 in a later stage in this litigation, that this litigation 0:09:20.280 --> 0:09:23.640 keeps ongoing to say, Okay, maybe it is true that 0:09:23.679 --> 0:09:26.440 the proper pathways were followed. But it's still the case 0:09:26.480 --> 0:09:30.640 that the agencies have to provide some evidence that they 0:09:30.760 --> 0:09:34.760 rationally considered all factors and balanced all costs of benefits, 0:09:34.840 --> 0:09:37.400 and that maybe that didn't happen here. So for some 0:09:37.520 --> 0:09:40.400 who are wondering, like will this case about the contraception 0:09:40.440 --> 0:09:43.960 mandate ever end? I think that Justice Kagan's point might 0:09:43.960 --> 0:09:46.440 have been, well, it's not necessarily over yet, there's still 0:09:46.440 --> 0:09:50.240 other other bases to challenge it. But Justice Kegan agrees 0:09:50.280 --> 0:09:54.080 that the challenge in this case didn't go through. What 0:09:54.200 --> 0:09:58.360 happens now. I thought that this was okay, they're good 0:09:58.400 --> 0:10:00.600 to go on this. Now. I don't know what's going 0:10:00.600 --> 0:10:02.520 to happen next. I take her to be saying this 0:10:02.600 --> 0:10:05.120 is something that could happen. But obviously it's a it's 0:10:05.120 --> 0:10:10.439 a question whether litigants will decide to bring a different 0:10:11.240 --> 0:10:15.320 challenge again, one that's more substantive and less procedural to 0:10:15.440 --> 0:10:17.920 this particular accommodation. And of course, you know, given that 0:10:17.960 --> 0:10:20.120 we're coming up on an election and there might well 0:10:20.200 --> 0:10:24.080 be a change in administration, you could very well see 0:10:24.520 --> 0:10:29.319 a new administration trying to change the very regulations that 0:10:29.360 --> 0:10:31.480 were an issue in this case. So we have to 0:10:31.520 --> 0:10:34.400 wait and see. Splite one thing. Well, let's say you 0:10:34.440 --> 0:10:38.360 have a publicly traded company and they say we have 0:10:38.640 --> 0:10:42.720 moral objections to contraceptives. Is that all they have to do? 0:10:42.720 --> 0:10:44.640 Do they have to do anything to prove that they 0:10:44.679 --> 0:10:47.200 actually have those and they're not just trying to get 0:10:47.520 --> 0:10:52.079 away with not paying for contraceptive coverage. Yeah. Generally speaking, 0:10:52.240 --> 0:10:58.080 in cases involving religious exemptions, courts may and do inquire 0:10:58.160 --> 0:11:01.520 into whether the claim is quotes fear. So there has 0:11:01.559 --> 0:11:07.400 to be some evidence that the asserted objection is, you know, 0:11:07.520 --> 0:11:09.880 being made in good faith. The question is that whether 0:11:09.920 --> 0:11:12.120 the objectors are right. You know, the courts are supposed 0:11:12.120 --> 0:11:13.440 to get into the question of, you know, what's the 0:11:13.480 --> 0:11:16.240 moral right answer to this question, but you're allowed to 0:11:16.240 --> 0:11:18.600 ask whether a claimant is sincere. Courts do this all 0:11:18.600 --> 0:11:22.319 the time. If you think back to the hobby Lobby case. Um, 0:11:22.360 --> 0:11:25.600 you know, there was plenty of evidence that the owners 0:11:25.640 --> 0:11:30.000 of Hobby Lobby did have certain religious beliefs, that they 0:11:30.000 --> 0:11:32.840 were representing them accurately and so on. But you know, 0:11:32.880 --> 0:11:36.560 presumably if Ford Motor Company were to come forward and say, 0:11:37.400 --> 0:11:39.160 we don't want to do this anymore, we don't want 0:11:39.200 --> 0:11:42.520 to provide these benefits because we have a religious objection 0:11:42.880 --> 0:11:44.719 of court, which they will show me one bit of 0:11:44.800 --> 0:11:47.120 evidence that you have this objection or that you've ever 0:11:47.280 --> 0:11:49.600 tried to assert it in other cases, and I suspect 0:11:49.600 --> 0:11:52.160 the court would be pretty skeptical about that. And of 0:11:52.160 --> 0:11:56.120 course it's not clear at all that publicly traded corporations 0:11:56.160 --> 0:12:00.960 have any incentive to gain this particular account adation, since 0:12:00.960 --> 0:12:05.840 there's a lot of evidence that UM providing contraception coverage 0:12:06.120 --> 0:12:11.280 to employees says corporations money. So that would suggest that 0:12:11.320 --> 0:12:15.120 when a corporation does as certain objection, like Hobby Lobby did, 0:12:15.480 --> 0:12:17.840 they probably are sincere because they're not trying to again, 0:12:17.840 --> 0:12:20.640 they're not trying to get some kind of financial advantage. 0:12:21.040 --> 0:12:25.520 I remember that during the oral arguments, Justice Ruth Bader Ginsburg, 0:12:25.600 --> 0:12:29.360 who during this argument I believe was taking part from 0:12:29.360 --> 0:12:34.280 the hospital, was very fiery in her questioning how how 0:12:34.320 --> 0:12:37.960 would you characterize her dissent? I would say it was 0:12:38.160 --> 0:12:41.160 kind of in keeping with the tone of our argument. 0:12:41.240 --> 0:12:44.680 You know, um, this is in many ways. I mentioned 0:12:44.720 --> 0:12:46.959 a couple of minutes ago that this case has been 0:12:46.960 --> 0:12:50.120 going on for a long time, and Justice Ginsburg dissented 0:12:50.160 --> 0:12:52.720 in the Hobby Lobby case, she thinks that the the 0:12:52.800 --> 0:12:55.560 policy of the contraception coverage mandate. I think she thinks 0:12:55.559 --> 0:12:58.599 it's a wise policy and that it's certainly legally permissible. 0:12:59.600 --> 0:13:04.720 She objected here quite strongly, obviously, to the administration's decision 0:13:04.760 --> 0:13:09.320 to to revise and to expand the accommodation that had 0:13:09.320 --> 0:13:12.400 been put in place by Obama. She was very direct 0:13:12.440 --> 0:13:16.400 in her disagreement. And let's turn out to the second case, 0:13:16.520 --> 0:13:21.600 the ministerial exception explain the court's decision. Sure, so these 0:13:21.600 --> 0:13:25.280 are two cases that presented basically the same issue. They 0:13:25.320 --> 0:13:29.720 involved parochial school teachers at Catholic schools who've been fired, 0:13:30.160 --> 0:13:33.880 who had then filed employment discrimination claims, and the question 0:13:33.960 --> 0:13:38.160 was whether these claims can go forward given that eight 0:13:38.240 --> 0:13:42.120 years ago, a unanimous Supreme Court said that the First 0:13:42.160 --> 0:13:47.040 Amendment doesn't allow employment discrimination lawsuits to be used as 0:13:47.040 --> 0:13:50.600 a way to kind of second guests religious schools decisions 0:13:50.640 --> 0:13:53.720 about who will or who will not be They use 0:13:53.760 --> 0:13:56.200 the term minister, but you know, a leader, a teacher, 0:13:56.559 --> 0:13:59.800 somebody who plays an important religious role. Um. That was 0:14:00.120 --> 0:14:03.880 years ago, and the Court again had been unanimous in 0:14:03.920 --> 0:14:06.079 a case involving a teacher in a Lutheran school. The 0:14:06.200 --> 0:14:09.920 question here was whether these teachers were any different from 0:14:09.960 --> 0:14:12.720 the teacher in the case eight years ago seven justices, 0:14:12.800 --> 0:14:16.160 So the five Conservatives plus Justice Justices Kagan and Bryer 0:14:16.760 --> 0:14:20.640 agreed that this case presented basically the same issue as 0:14:20.680 --> 0:14:24.040 the Josiana Table case eight years ago, and that because 0:14:24.080 --> 0:14:26.760 the First Amendment both you know, the separation of Church 0:14:26.840 --> 0:14:29.720 and State and the free exercise clause, the First Amendment 0:14:29.720 --> 0:14:32.280 tells governments that they don't get to decide who should 0:14:32.320 --> 0:14:36.080 or who should not be involved in religious education and leadership, 0:14:36.280 --> 0:14:38.320 so that these lawsuits can't go forward because, if you 0:14:38.320 --> 0:14:41.200 think about it, an employment discrimination lawsuit brought by a 0:14:41.240 --> 0:14:44.720 religious school teacher is basically a request to a court 0:14:44.760 --> 0:14:47.400 to tell a religious school, Hey, this person gets to 0:14:47.440 --> 0:14:49.000 be a religious school teacher for you, whether you like 0:14:49.040 --> 0:14:53.160 it or not. The Ninth Circuit Court of Appeals had 0:14:53.200 --> 0:14:56.480 said that these cases could go forward because the Ninth 0:14:56.480 --> 0:15:00.280 Circuit adopted, but the Court told us was a a 0:15:00.520 --> 0:15:04.960 narrow version of this ministry or exception doctrine. And so 0:15:05.360 --> 0:15:08.120 I think, from my perspective anyway, the way to see 0:15:08.120 --> 0:15:11.120 these cases that came down today is that the court 0:15:11.160 --> 0:15:13.560 basically said, we we meant what we said eight years ago. 0:15:14.160 --> 0:15:18.520 The Ninth Circuit was wrong to shrink this doctrine, and 0:15:18.560 --> 0:15:22.600 we're just reaffirming what we said before, mainly that there 0:15:22.600 --> 0:15:28.000 are some employees of religious institutions who are involved in 0:15:28.040 --> 0:15:32.680 the religious mission of those institutions, and that the principle 0:15:32.720 --> 0:15:35.080 of religious freedom and the principle of church state separation 0:15:35.240 --> 0:15:39.440 doesn't allow courts to interfere in the decisions about who 0:15:39.440 --> 0:15:42.280 should or should not be a minister. Did the majority 0:15:42.320 --> 0:15:47.440 opinion give any guidance for who is a teacher who 0:15:47.600 --> 0:15:50.680 is involved in religious education? Does there have to be 0:15:50.760 --> 0:15:53.600 more than just a teacher? In a sense, what the 0:15:53.640 --> 0:15:58.520 majority said today was, you can't reduce this question to 0:15:58.680 --> 0:16:01.960 kind of a bright line test. You can't reduce it 0:16:02.000 --> 0:16:05.560 to the presence or the absence of any one particular factor. So, 0:16:05.960 --> 0:16:09.280 for example, it doesn't matter, or at least, it's not 0:16:09.320 --> 0:16:12.200 the only thing that matters, whether somebody has a title 0:16:12.600 --> 0:16:15.960 of minister or pastor or rabbi, because after all, there's 0:16:16.000 --> 0:16:19.960 lots of religious organizations that might be newer or unfamiliar 0:16:20.080 --> 0:16:22.960 or just different. They don't use those terms, and so 0:16:23.000 --> 0:16:25.640 you wouldn't want to adopt a rule that kind of 0:16:25.880 --> 0:16:29.440 privileged religions that use certain titles over ones that didn't. 0:16:29.600 --> 0:16:31.600 And the court also said, like, there's a real danger 0:16:31.840 --> 0:16:34.760 to make the test depend on, well, how much religious 0:16:34.840 --> 0:16:36.880 training does the person have to have, because then you 0:16:36.920 --> 0:16:40.200 have courts trying to evaluate, you know, what counts as 0:16:40.200 --> 0:16:42.440 religious training and whatnot. So what the court did is 0:16:42.480 --> 0:16:44.200 really just say, you have to look at the function. 0:16:44.760 --> 0:16:46.800 You have to look at what the employee is being 0:16:46.840 --> 0:16:50.280 asked to do by the religious organization, and if the 0:16:50.320 --> 0:16:56.640 employee's role is connected to the religious organization's mission, then 0:16:56.680 --> 0:16:59.400 that employee should be covered. So it's not a bright 0:16:59.440 --> 0:17:02.640 line test. That more the courts saying, look, we articulated 0:17:02.680 --> 0:17:05.760 this principle eight years ago. The Ninth Circuit tried to 0:17:05.760 --> 0:17:09.760 convert that principle into a more of a mechanical test, 0:17:09.960 --> 0:17:12.040 and the Court here said, that's not what we want. 0:17:12.280 --> 0:17:16.320 We want courts to be appropriately deferential to the fact 0:17:16.400 --> 0:17:20.080 that different religions have different ways of arranging themselves, and 0:17:20.160 --> 0:17:23.959 that courts should ask the more general questions, is this 0:17:24.040 --> 0:17:28.639 employee playing a part in the religious mission of the institution, 0:17:28.680 --> 0:17:30.960 And if the employee is, then it should be up 0:17:31.000 --> 0:17:33.879 to the religious institution to decide, for better or worse, 0:17:34.320 --> 0:17:37.680 whether to hire or fire that person. Thanks Rick, That's 0:17:37.800 --> 0:17:40.760 Richard Garnett of Notre Dame Law School, and that's UT 0:17:40.800 --> 0:17:43.960 for this edition of Bloomberg Law. I'm June Grossel. Thanks 0:17:44.000 --> 0:17:46.200 so much for listening, and remember to tune in to 0:17:46.240 --> 0:17:48.440 The Bloomberg Lawn Show every week now at ten DM 0:17:48.520 --> 0:17:50.480 Eastern right here on Bloomberg Radio.