Courthouse Steps Oral Argument Teleforum: Our Lady of Guadalupe School v. Morrissey-Berru

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In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, in 2012, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”  Accordingly, the Court recognized that there is a “ministerial exception” that precludes application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers.  But who qualifies as a minister?  The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue in that case was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.

Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel.  In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply.  Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.  

This is one of the few cases the Court has selected for telephonic argument, which will be held on May 11, 2020. Joining us hours after the argument, for a Courthouse Steps teleforum, will be Jesse Panuccio, who authored an amicus brief in the case on behalf of members of Congress and in support of the schools.  Mr. Panuccio is a partner at Boies Schiller Flexner LLP and is the former Acting Associate Attorney General of the United States.

Featuring: 

Jesse Panuccio, Partner, Boies Schiller Flexner LLP

 

This call is open to the public: please dial 888-752-3232 to access the call.

 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Micah Wallen:  And welcome to today's Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum on Our Lady of Guadalupe School v. Morrissey-Berru. This case was argued earlier this morning. My name is Micah Wallen and I am the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

And today, we are fortunate to have with us Jesse Panuccio, who is a partner at Boies Schiller and Flexner. After our speaker gives his opening remarks, we will then move to an audience Q&A. Thank you for sharing with us today. Jesse, the floor is yours.

 

Jesse Panuccio:  Well, thank you, Micah. And thanks to The Federalist Society for hosting this teleforum this afternoon on this important case and for inviting me to participate. And I appreciate everyone who is joining the call and has an interest in religious liberty and the arguments at the Supreme Court.

 

      As Micah explained, the Supreme Court heard this morning and into this afternoon, a telephonic oral argument in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel.

 

      On this teleforum, I'll provide some background on the cases and a report of what happened at oral argument. And I'll be happy to answer questions after that.

 

      At the outset, I should disclose that I authored an amicus brief in the case in support of the petitioners, the schools, that is, and on behalf of Senator Mike Lee, Representative Doug Collins, and 27 other members of Congress.

 

      So, first, let's start with some background on these cases. They are religious liberty cases and represent the Supreme Court's second attempt to establish the boundaries of what has come to be known as the ministerial exception.

 

The Court's first attempt at that was in 2012 in a case styled Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. And in that case, a teacher at a Lutheran school sued under the Americans with Disabilities Act after the school terminated her following disability leave.

 

The question presented to the Court at that time was whether the First Amendment's religion clauses barred application of anti-discrimination law, or laws, to the school's employment relationship with the teacher.

 

And the Court in that case held unanimously, 9-0, that under the First Amendment's religion clauses, "It is impermissible for the government to contradict a church's determination of who can act as its ministers."

 

And the Court explained its holding as follows. "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."

 

The Court held that imposing an unwanted minister on a church would violate the Free Exercise Clause by interfering with the religion's ability to shape its own faith and mission through its appointments, and would violate the Establishment Clause by involving government in ecclesiastical decisions.

 

Accordingly, consistent with a long line of authority in the courts of appeals, the Supreme Court recognized in Hosanna-Tabor that there is "a ministerial exception" that precludes application of employment discrimination laws to the relationship between a religious institution and its ministers.

 

Having concluded that the First Amendment requires such an exception, the Court then considered whether the position at issue in that case, a called teacher of the Lutheran Church, of the Lutheran School, qualified for the exception.

 

The Court held that the ministerial exception is not limited to the head of religious congregation, and "refused to adopt a rigid formula for deciding when an employee qualifies as a minister."

 

So keep that language, that "rigid formula" language, in mind because it's going to feature prominently in today's case.

 

Instead, in Hosanna-Tabor, the Court considered all the circumstances of the plaintiff's employment and concluded that the ministerial exception indeed applied. In particular, the Court found in that case that the Church held the teacher out as a minister, giving her the title of Minister of Religion Commissioned; the teacher was required to have a significant degree of religious training; the teacher held herself out as a minister of the church; and the teacher's job duties reflected a role in conveying the Church's message and carrying out its mission.

 

Now, in that case, again, the 2012 case, Justice Thomas concurred in the Court's opinion but wrote separately to stress his view that the religion clauses require civil courts to defer to a religious organization's good-faith understanding of who qualifies as a minister. In other words, Justice Thomas' view in that case was that the religion essentially gets to decide who is a minister and who is not. And once they've decided, the ministerial exception will apply.

 

In another concurrence, Justice Alito, joined by Justice Kagan, wrote separately to stress that the concept of minister itself, even using the word ministerial to describe the doctrine, should not be viewed as central. He said, "Instead, courts should focus on the function performed by persons who work for religious bodies."

 

The ministerial exception, in their view, should apply to "any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith." And that was a direct quote from the Alito-Kagan concurrence in 2012.

 

Now, the Hosanna-Tabor Court overall, the main opinion for the Court, was careful to note that the case represented only its "first case involving the ministerial exception," and that "there will be time enough to address the applicability of the exception to other circumstances, if and when they arise."

 

So in the wake of Hosanna-Tabor, there really are two central questions that the courts have been considering. First, who qualifies as a minister? Which employees of a church can qualify as a minister? Second, does the exception grant immunity outside of the employment discrimination context, such as in breach of contract or tort cases?

 

The consolidated cases the Court heard this morning really ask the first question: Who qualifies as a minister? Although, the second question does come up as the Court considers the downstream consequences of the case.

 

The petitioners in the cases this morning are Our Lady of Guadalupe School and St. James School, both Catholic schools in California affiliated with the Roman Catholic Parishes, and under the jurisdiction of the Arch Diocese of Los Angeles. Each school discontinued its relationship with a primary school teacher, and each teacher sued under an anti-discrimination law.

 

Let me start with Agnes Morrissey-Berru. She taught at Our Lady of Guadalupe starting in 1998 as a substitute teacher, then as a full-time sixth-grade teacher, and later as a fifth-grade teacher. In the 2014-2015 school year, the principal of Our Lady moved Morrissey-Berru from a full-time teaching position to a part-time position, and the next year declined to renew her contract.

 

Our Lady contends that it made those decisions based on Morrissey-Berru's teaching performance, while Morrissey-Berru contends that the school discriminated against her based on age.

 

Kristen Biel began teaching full time at St. James School in 2013. At the end of the '13-'14 school year, she informed the principal that she had breast cancer and needed time off for treatment. A few weeks later, the principal told Biel that her teaching contract would not be renewed, citing as reasons that Biel's classroom management was not strict, and that it was not fair to have two teachers for the children during the school year.

 

Biel sued, alleging disability discrimination. Sadly, Ms. Biel has since passed away, but her husband has continued to prosecute the lawsuit, explaining in interviews recently to the press that the case was important to her right up until the time of her passing.

 

The Ninth Circuit decided Biel's case first. A divided panel, with Judge Fischer dissenting, concluded that the ministerial exception did not apply to Biel because only one of what they called the four major considerations from Hosanna-Tabor was present. Namely, that Biel's job duties included teaching religion.

 

The Ninth Circuit held that those duties were "limited to"—this is a quote—"limited to teaching religion from a book," and taking students to Mass and, thus, were not the kind of duties at issue in Hosanna-Tabor.

 

Well, while St. James' petition for rehearing en banc in the Ninth Circuit was pending, another panel of the Ninth Circuit decided the Our Lady of Guadalupe case. That panel noted that the St. James case instructs that an employee's duties alone are not dispositive and, thus, ruled in favor of Morrissey-Berru. That is, that the ministerial exception did not apply.

 

The Ninth Circuit then denied St. James' petition for rehearing en banc over the dissent of nine judges. The Supreme Court granted cert in the case and agreed to hear it in December 2019. Due to the Coronavirus pandemic, in-person oral argument was canceled, but this is one of the handful of cases the Court set for telephonic oral argument this month.

 

Now, before I get to what transpired this morning at the argument, let me give you a little background on what the parties argued in their briefing before the Court.

 

The schools argue that the Ninth Circuit wrongly adopted a rigid test; the very thing the Supreme Court, if you recall to my earlier description of the opinion in Hosanna-Tabor. It said, "We refuse to adopt a rigid test." What the schools argue here is that is exactly what the Ninth Circuit did, and that it erred in holding that religious duties alone could never be enough to trigger the ministerial exception.

 

The schools asked the Supreme Court to hold that, "When an employee of a religious organization performs important religious functions, that is enough under Hosanna-Tabor for the ministerial exception to apply."

 

In their briefing, the teachers characterized the ministerial exception as -- let me note here I'm switching gears. So the teachers, in their briefing, characterized the ministerial exception as "strong medicine" and an extraordinary protection and argue against an unduly broad conception of the doctrine.

 

The teachers characterized Hosanna-Tabor as having adopted a four-part test that put function last. They say this multi-factor inquiry rightly includes a trio of formalistic, objective indicia of ministerial status. These formalistic requirements, the teachers argue, help "provide clarity" in line drawing for courts that should avoid excessive entanglement with religion.

 

Respondents, the teachers, also argue that the formal requirements promote accountability and transparency for religions, which, like corporations, academic institutions, and governments, should use titles to designate those who are truly in charge of carrying out their missions. These are all quotes from the brief.

 

The teachers also argue that the schools' functions-only test, that is, the petitioners' functions-only test, is a recipe for everyone being a minister. And they point to the question the Court hinted at at the close of Hosanna-Tabor. The ministerial exception could apply in contexts outside of anti-discrimination, such as to FLSA and breach of contract claims, and the consequences would be stark if a broad group is defined as a minister.

 

Now, as might be expected, the schools and the teachers diverge sharply in describing the roles the teachers had at their respective schools. With respect to Morrissey-Berru, the petitioners, the schools, point out that she taught daily devotional and religion classes; taught the tenets of the Catholic religion to her students; was required to infuse Catholic faith and values into all classes that she taught; that she had visible Catholic symbols in the classroom; that she annually directed a passion play; that she took her students to Mass and helped them plan elements of the Mass; that she led her students in group prayer; and that she was approved by the parish priest as teacher; and signed an agreement to perform all of her duties in a manner consistent with the Catholic faith.

 

The respondents, the teachers, on the other hand, point out that Morrissey-Berru had no title designating her as a spiritual leader; did not complete catechus training; had no religious training prior to working at the school; primarily taught secular courses; never led a mass; and was not hired to preach the Church's message.

 

With respect to Biel, the schools point out, the petitioner's point out, that she taught regular devotional classes; taught Catholic doctrine to students for three hours per week; took her students to Mass and worshipped with them; joined her students in group prayer; and her employment contract also called for her to propagate and manifest the Catholic faith in all aspects of the role.

 

The teachers point out that Biel had no title designating her as a spiritual leader; no religious training prior to working at the school; only ever attended a half-day conference on religious training after becoming a teacher at the school; worked at a school that did not require teachers to be Catholic, that is, to be co-religionists; and that her employment contract did not indicate she was a minister.

 

So those are the positions of the parties in the case. The United States also filed a brief in support of the religious schools, of the petitioners. The Solicitor General argued that the ministerial exception should be applied "to any employee of religious organization who performs an important religious function," and, in particular, to any employee who preaches the Church's beliefs, teaches its faith, or carries out its religious mission.

 

Now, in addition to the briefs of the parties and the United States, this case has attracted a very significant amount of amicus participation. By my count, there were 34 amici briefs filed in support of the schools, including a brief by 17 states, and other briefs by a whole plethora of religious organizations.

 

In support of the teachers, there were seven amici briefs filed, including one by 16 states and the District of Columbia. One brief worth noting is that of the ACLU, which filed in support of neither party. The ACLU contends that the Ninth Circuit's reading of Hosanna-Tabor as establishing a four-part test was, in fact, in error, but that adopting a functions-only test would also be in error.

 

They argue for courts to consider a variety of what they call contextual factors and conclude that in these cases, such a contextual analysis yields the conclusion that Biel at the St. James School was not a minister because teachers did not have to be Catholic, but that Morrissey-Berru was a minister because she had to be Catholic and certified in religious teaching and taught distinct religious classes.

 

Now, as I noted at the outset of the call, I'd be remiss if I didn't note that I, along with my colleague, William Bloom, authored an amicus brief on behalf of members of Congress. In that brief, we made several points.

 

First, we argued that the First Amendment protects and promotes religious diversity, and that Congress has a long tradition of protecting and advancing the religious pluralism of its constituents. And we tied that into Hosanna-Tabor, noting its refusal to adopt a rigid formula was a recognition of that religious pluralism and how it is protected, both in constitutional law and statutory law in this country.

 

Second, we note the Ninth Circuit's formulaic approach to the ministerial exception undermines religious diversity and runs afoul of Hosanna-Tabor.

 

Third, we note that teaching is at the very core of religion, and the ministerial exception protects a religion's choice of who will teach its members. We catalogue how, for many religions, teaching is at the very heart of faith. We note, in particular, how problematic was the Ninth Circuit's holding that even significant religious responsibilities as a teacher, without more, are not enough to trigger the protections of the First Amendment.

 

And we noted how perverse was the Ninth Circuit's statement that dismissed Biel's role in Catholic religious education as not important because it was "limited to teaching religion from a book." We point out that for Catholics, for other Christians, for Jews, for Muslims, for Sikhs, and for many other religions, teaching from a book is, well, sort of the point of the religion.

 

Indeed, Islam is often called The Religion of the Book, and Jews are sometimes called The People of the Book. So teaching religion from a book is, in fact, and can be, central to many faiths.

 

So that's the background on the case. You have the 2012 Hosanna-Tabor case. You have these two cases that have come up before the Ninth Circuit and the briefing, including the many amici who participated in the case.

 

That brings us to this morning's oral argument. The argument started about 40 minutes late, after the first argument of the morning ran for 92 minutes instead of the traditional 60. The other thing to note about this argument is that the Court's composition is a little different now than it was in 2012 when the Court handed down Hosanna-Tabor. Justices Scalia and Kennedy have been replaced by Justices Gorsuch and Kavanaugh. So you have a bit of a different Court hearing this matter.

 

Arguing for the schools was Eric Rassbach from the Becket Fund. Arguing for the teachers was Stanford Law Professor Jeff Fisher. The United States was represented by Assistant to the Solicitor General Morgan Ratner.

 

Now, because the argument ran long, I've only had about an hour or two to digest what happened, so let me offer just a few, probably scattered, not particularly thematic, thoughts. And I'll provide the always-necessary caveat that you can't tell much from the argument. We are just speculating here. And I'll try to note some of what, I think, were the interesting exchanges.

 

First, I guess I should note for Court watchers, or I guess now Court listeners, like all of the arguments this month, the switch to telephonic arguments is interesting and fascinating, and all that comes with it: the change in the questioning format, the various electronic hiccups, the people with their phones on mute. It is, for those who enjoy the back and forth of the Court and the behind the scenes, it's a very interesting time.

 

Second, as is so often true with Supreme Court arguments, much of the questioning was around line drawing and hypotheticals related to that.

 

The two questions that were really debated throughout the -- if you sort of get to what the questions were about, there were really two questions I think the Justices were focused on.

 

One is: Is a religious function test alone sufficient to trigger the ministerial exception? And, then, two is really a follow-on question: if so, who determines what a religious function is or how important it is? How is the Court supposed to, if it just focuses on religious functions, how do they go about defining it or, if they can define it, determining whether it's important enough to trigger the exception?

 

A few conclusions here. It seems that the unanimity of 2012 is now probably gone. It does not seem like we'll have a 9-0 opinion. I say that because my sense was that Justices Ginsburg and Sotomayor seemed fairly skeptical that a functions-only test is proper. Indeed, their questions could even be read to seem skeptical of the ministerial exception overall, which is curious if you recall that they both joined the 2012 unanimous Hosanna-Tabor opinion.

 

Just a few examples of this. Justice Ginsburg asked Mr. Rassbach, or petitioners, how a person who is not a co-religionist could be a minister of that religion just because of his or her function, say, teaching of that religion. She also noted in questioning Ms. Ratner that, "The breadth of the exemption is staggering." So that was a quote about the ministerial exception as a whole, and it suggests she wants to keep the class of persons who can qualify for it fairly narrow.

 

Justice Sotomayor asked Mr. Rassbach why the exception applies if the anti-discrimination claims at issue here have nothing to do with how the teachers are teaching religion. So she seemed to be trying to draw a distinction between the application of a statute that might affect the religious decisions or the religious teaching that's occurring versus employment actions that might be taken that seem rooted, in her view, seem rooted in decisions not really affecting the teaching of religion.

 

Justice Sotomayor also called deference to religions on defining religious function as a recipe simply for all teachers to be included and was clearly skeptical that that should be a rule the Court adopts.

 

Justice Breyer asked several questions about why the statutory exceptions in the ADA -- so for a bona fide occupational qualification, what they call a BFOQ, and in Title VII for religious organizations choosing employees on the basis of religion. He asked why, a couple of times, why those are not sufficient protections for religions in these kinds of cases.

 

So I think there you saw three justices sort of skeptical, at least of petitioner's claims here, and may be looking for a way to limit Hosanna-Tabor and the scope and breadth of the ministerial exception.

 

Justice Kagan is a vote to watch in this case. Recall that she joined Justice Alito's concurrence in 2012, which seemed to say, in fairly plain terms, that teaching is always entitled to the exception. And her questioning today, as is typical, was very probing. There was a very interesting colloquy between her and Mr. Rassbach in which she simply asked for a yes or no answer to a series of hypotheticals.

 

So she said, "I'm going to give you a hypothetical of someone who works for a church, and I want you to tell me are they in or are they out of the ministerial exception." And three that she gave were: a math teacher teaching Judaism for 10 minutes per week; a math teacher who starts class with a prayer; a math teacher who otherwise infuses values generally, religious values generally throughout his or her teaching.

 

Mr. Rassbach answered that those three are probably all out of the ministerial exception because the religious duties would be de minimis. But he did say that a nurse who prays with a sick patient or a public relations employee who puts out the messaging of the church or of the school are encompassed within the ministerial exception.

 

Now, what's interesting here, I think, is that Mr. Rassbach did not draw a line around teaching in a religious school per se or even around teaching religion per se. He seemed, as I said, to say that there could be some kind of de minimis religious duty that would not qualify for the ministerial exception.

 

If you listen to the whole argument, you will hear Justice Kavanaugh come back to this. Seemed a little surprised by that. He came back to Justice Kagan's hypotheticals later during his questioning, and said it seemed like, in a few of them, the teachers would, in fact, be instilling values of the religion even though Mr. Rassbach said those might be de minimis.

 

The Chief Justice, the author or Hosanna-Tabor, is also a vote to watch closely in this case. I caught two important questions from him. He pressed the United States on how the Court is supposed to draw lines if it only looks at religious function, but he also stated to Mr. Fisher his "concern" about the respondents' focus on title and how that is exactly what Justice Alito raised in his Hosanna-Tabor concurrence would create discrimination among religions when the Court tries to suss that out.

 

As for Justice Thomas, I think he had one of the hardest questions of the morning, and that was for Mr. Fisher. He asked whether these teachers would have violated the Establishment Clause if they performed the same functions in public schools that they performed at the Catholic schools in this case.

 

Mr. Fisher responded that some of it would violate the Establishment Clause, namely, the prayer and worship leadership functions. But, he said, if that were the test, then all of the teachers in religious schools would always qualify.

 

Justice Thomas also focused his questions on what I call the follow-on question to the functions test, which is if religious functions alone are dispositive, then how is the Court to decide which functions are religious or important enough to the religion to qualify?

 

Now, recall that in his solo concurrence in 2012, Justice Thomas said the courts must defer to religions' beliefs on this issue, and he stuck with that position again today, it seems, asking Mr. Rassbach that question right out of the gate. Interestingly, Mr. Rassbach did not embrace the Thomas position, but instead said that Justice Alito's concurrence provided the way forward by listing a set of typically important functions, like teaching, that are safe harbors for the ministerial exception and figuring out what functions are sufficiently religious.

 

Justice Alito, in questioning Mr. Fisher, seemed to indicate he was sticking with his 2012 concurrence: The teaching function is central and entitled to the ministerial exception.

 

Justice Kavanaugh also seemed to line up with the Alito concurrence, asking Mr. Fisher whether there's any problem with that concurrence and the position it struck out, and also emphasizing, in seeming response to Justice Breyer's question, that the roots of the ministerial exception are in the Constitution and not found in statutes. So I think that may have been a response to the questions about the FOQs and the ADA and the religious exception that's found in Title VII.

 

Justice Gorsuch's questions were mostly focused the same point that Justice Thomas brought up, which is deferring to religions when they say something is a religious function or a sufficiently important religious function. He brought up repeatedly that that is the standard for most Free Exercise cases in other contexts and for RFRA. The Court does not probe a religion's sincerely held religious belief.

 

So those are sort of my quick impressions of the argument this morning and some of the interesting exchanges. I think if you want to predict, what it looked like to me in listening to the argument, what it sounded like, is that the Ninth Circuit opinions will be vacated in some way, but it's hard to know exactly what the Court will do; whether it will say that the Ninth Circuit adopted a four-factor test that was rigid when the Court, in fact, said it's more contextual. Or whether there are enough votes to go toward what the petitioners and the United States urged, which is a functions analysis being enough, at least for certain functions like teaching.

 

It seemed like there are probably four votes for that position. Whether there's a fifth vote remains to be seen. And, then, there are probably maybe two dissenting votes here. That these cases for Justices Ginsburg and Sotomayor seemed further than they want Hosanna-Tabor to go, and they might well agree with some version of the Ninth Circuit.

 

So, with that, I think I've gone on long enough. I am happy to take questions or engage in some other points of discussion.

 

Micah Wallen:  We already have a question joined in, so we'll go to that first caller.

 

Caller 1:  Yes, thank you. That was a really helpful summary. I'm new to this case. Can you tell me what the origin of the discrimination claim is and the nature of it?

 

Jesse Panuccio:  Yes. That's a good question. So it's different in each case. In one case, it's an age discrimination case; a claim brought under the age discrimination statutes. And in the second case, it's a disability claim. You will recall Ms. Biel was diagnosed with breast cancer and then later discharged, and so she brought a disability claim. So it's age and disability discrimination.

 

Micah Wallen:  Another question just came though, so we'll move to our next caller.

 

Caller 2:  Yeah. This call's from Austin, Texas. It seemed that on those types of claims, age and disability, that it really runs against some of the challenges, I think, that churches see in these contexts of when you're determining who is a minister and someone says, "Well, I want to be a teacher, but I'm going to personally advocate or do something that is a value which is 100 percent contradictory toward the mission of the church." Like, say, if the church is monotheistic and you say, "I'm going to be an outright advocate of polytheism in the classroom or in the functions that I do." You know, if you're doing something that's directly intentional that's opposite the direction of the church, they'd have a tighter claim, but it seems like in this case, on disability and age discrimination, I see it hard to find the church saying that those in somehow are negatively impacting the ability of the church as a ministry.

 

      Could you maybe see how you think the Court might respond on that?

 

Jesse Panuccio:  Well, that's a great question. And you've really keyed in on -- I think that that was the line that Justices Sotomayor and Breyer were both taking in some of their questions, where they were trying to separate out the application of statutes that might affect the core of religious teaching versus, as you say, applications of the statute that really don't get at that.

 

      Now, I think the response to that from the other side is who is to say what matters to a church and its teaching function? That that very question that the Court's probing and the federal government probing that question through the EEOC or through court actions or private court actions, is the very type of entanglement in ecclesiastical affairs that the Establishment Clause forbids and that the Free Exercise Clause also forbids.

 

      So that is, you hit right on one of the key debates in this case.

 

Micah Wallen:  All right. We've got a few other questions joining the queue, so we'll now move to our next caller.

 

Caller 3:  Thanks for the presentation. It seems that the premise of the ministerial exception is the church's autonomy in choosing its ministers, however that's defined, which suggests it's hiring and firing. But the Justices seem to be talking about all kinds of other potential employment actions that are less, if you will, than hiring and firing. Like what about accommodation of disability? What about pay rate? What about overtime and things like that that don't seem to have anything to do with the actual selection of who your ministers are? Would you care to comment on that?

 

Jesse Panuccio:  Well, that's another great question. And that was, and perhaps I didn't emphasize it enough, that was another theme of a line of questioning today. And so, I guess I should step back and say these two cases don't squarely present the question because they are both dismissal cases. I think in one case it was the teacher was dismissed. In the other, I think the contract wasn't renewed. So it really is choosing, well, whether you think this or not, but it is choosing the person who will be in that position; whether you think that position personifies beliefs or not.

 

      But there was a line of questioning, I believe directed at the United States, at the Assistant to the Solicitor General, and I think it was from Justice Ginsburg. And what her response was is that this case—and by her, I mean Ms. Ratner, the Assistant to the Solicitor General—was the question presented here is who qualifies for the ministerial exception, not which claims can be made.

 

      So I think Justice Ginsburg brought up the FLSA, as you say, overtime and other potential claims that could be made during the course of employment even if it wasn't a hiring or firing. And the main response we got today is that's not this case. You left that open in the closing lines of Hosanna-Tabor, and that may be a question that the Court needs to address. To what kinds of claims does the ministerial exception apply? But this case is about to whom does it apply, not when.

 

      So I hope that kind of -- again, I think you've hit on a great debate here, but that was how it was approached today.

 

Caller 4:  Hi. This call is from Louisville, Kentucky. And I'm not sure if this -- I tried to listen to the arguments this morning on TV, on C-SPAN, and I listened to all those hypotheticals, but the flip side of the hypotheticals I'm not sure was addressed, and I was wondering if you could let me know if it was.

 

But in focused on whether or not the job required them to be a minister of some sort, and there's lots of different hypotheticals that showed where their job could entail them leading some example. There was one example given of the basketball coach, but did anybody ever discuss the job that doesn't entail you having any kind of authorized role to do anything, not just the basketball, but what if it's like the janitor who, in a lot of schools, they strike up friendships with kids. They're great people. They look out for kids, whatever, but then decide to start engaging the kids in conversations that are completely antithetical to the church teaching, whether it be a Jewish school, a Catholic school, a Protestant school, or whatever, like talking to the kids about how there is no God and that atheism is the only way, or something like that.

 

      Wouldn't the school have the protection against a First Amendment claim to fire that janitor?

 

Jesse Panuccio:  Well, it's a good point, and it gets to -- well, a few things I'll say about that. Well, one, that was not squarely addressed today, although, maybe it lurks behind some of the discussions that were had.

 

And it may be that this is why everybody was sort of resistant to say functions only; that other factors and contextual factors may matter from time to time because there may be instances, like the one you point out, that can't be thought about in advance or captured by any single test or standard.

 

      And we actually pointed out in our amicus brief that, while teaching is sort of categorically in, and therefore functions are very important and can be the sole test, or can be enough, on their own sufficient, there may be cases where titles alone are sufficient.

 

So imagine somebody who has been ordained as a minister but hasn't yet taken on any official duties because they're still in some kind of training phase. There, a functions test might not get you to the answer that they should be within the ministerial exception, but they clearly are because they, in fact, have been chosen as a minister and are on their way.

 

      And so that might relate to the hypothetical you're bringing up where the defined job function is not religious, but in the course of carrying it out, the janitor, as you say, starts to take on duties outside the scope of employment that impinge on the religious function.

 

      So that was a long answer, so the short answer is no, nobody brought that up explicitly. But, again, I think it lurks behind some of the probing and line drawing that the Court was attempting to flesh out today.

 

Micah Wallen:  And we'll now go to our next caller.

 

Caller 5:  Hi. Good afternoon. Actually, I think you addressed part of my question, so I will make it very brief and short. Thanks for the opportunity to listen in. So the rationale, or the test being applied is the function test to this argument? Would that be a safe statement to make, or is that a misunderstanding from my end? Thanks.

 

Jesse Panuccio:  Well, thanks very much for the question and for listening. What you've identified is sort of the QP, the question presented to the Court. The Court, in Hosanna-Tabor, said the ministerial exception exists. There is no rigid test. In the context of this case, we think it applies and here's why, and it gave four reasons.

 

      Those reasons had to do with the title the employee had, the training the employee had, how the employee and the church held out the employee to the community, and then the actual functions the employee engaged in.

 

      The Ninth Circuit, in these cases, then took those four contextual, what they called four major considerations, and turned it into, essentially, a four-part test, and analyzed whether Morrissey-Berru and Biel, how they lined up on each of those factors. And what they found was, on the first three factors for the title-based factors, they didn't qualify. And, then, even if they had religious teaching functions, even important functions, that was not enough if you only satisfied that one prong.

 

      So the question—really, it's a dual question presented to the Court—is did the Ninth Circuit misconstrue Hosanna-Tabor? And, then, also, should the Court go further and say, as you put it, is a functions-only test sufficient even if the teachers don't have a title that sounds religious; even if they're not held out in title as ministers? If they are, in fact, teaching the religion, is that enough to trigger the protections of the First Amendments?

 

      So that is the question before the Court, and that's what a lot of the questioning at oral argument today and debate was about.

 

Micah Wallen:  All right. We'll now move to our next caller in the queue.

 

Caller 6:  Hi, there. Calling from Dallas, Texas. Thank you, again, for the presentation. It might be somewhat already answered by your previous comment about how the Court would focus on context, but I was just curious if a hypothetical regarding a situation wherein roles, such as a math teacher, that typically would not have any religious duties would be forced by the religious institution to, for example, start class with a discussion or a prayer simply for the purpose of claiming the ministerial exception where it wouldn't otherwise come into play. Was that discussed at all?

 

Jesse Panuccio:  It's a good question. And thank you for joining the call. That precise formulation didn't come up, but Mr. Fisher, in some of his argument, did point out, and in the brief, they point out what they call downstream consequences and sort of parade of horribles. There's a nice turn of phrase in the reply brief that says, "The horribles haven't paraded yet."

 

But he does point out that whatever you define as the scope of the ministerial exception, churches will then attempt to fit everyone into—this is their contention—to fit everyone into that definition.

 

      So I think that would be an application of what you're talking about, which is, well, if the Court says if you say a prayer at the beginning of the class you're in, all teachers will then have to say a prayer at the beginning of class so that everybody's in.

 

And one of the things Mr. Fisher said is you're talking about hundreds of thousands—at one point I think he even said millions—of employees in this country now having anti-discrimination protection swept away from them.

 

      So whether that's all true or not, I think the Becket Fund, the petitioners, would say, in practice, that hasn't happened. The numbers and cases don't bear that out. But it was definitely an undercurrent.

 

Caller 6:  Thank you.

 

Jesse Panuccio:  Thank you.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Caller 7:  Thank you. Good afternoon. Thank you for your presentation. Just a question for you, a hypothetical question for you. What would've been a good response, do you think, to Justice Ginsburg's hypothetical regarding the employee being discharged in retaliation for reporting sexual abuse?

 

      How the heck should that question have been answered? Thank you.

 

Jesse Panuccio:  Yeah. It's a very hard hypothetical and I think if you're asking me -- for purposes of strategy at this argument, I think the United States had about as good -- you know, for pure oral argument strategy, I think the United States had about as good of an answer as you can have, which is this case and this question and all the Court needs to do is decide who is included, not what is included. And there may be reasons why other types of claims in the course of employment don't have the same First Amendment analysis as the simple hiring and firing of the teacher presented here.

 

      But a very probably -- I said that I thought one of the most difficult questions of the day was Justice Thomas' on what if they did this at a public school. You've probably identified the other most difficult question of the day from Justice Ginsburg, which was that one.

 

Caller 7:  Thank you.

 

Micah Wallen:  All right. We have two other questions in the queue, so we'll move to our next caller.

 

Caller 8:  Yeah. Thank you. It seems like most, if not all, of the discussion has been about which employees qualify as ministers. Is it just a given that these schools qualify as churches, and a hospital would qualify as a church, and a social service provider would qualify as a church? What's the criteria for which employers actually get the benefit of this exemption?

 

Jesse Panuccio:  That's a great question, and thank you for raising it. Now, that kind of question has been fleshed out in other lines of cases, so it's really a question of who gets the protections of the Free Exercise Clause and the Establishment Clause. Who can claim that? When can an organization claim that? And that's fleshed out in a whole line of other cases. I think, for purposes of these cases, these school cases that have come up, these are truly religious schools.

 

      In Hosanna-Tabor, the school was a Lutheran school established by the Lutheran Church, run by the Lutheran Church. Here, these are Catholic schools run by the Archdiocese of Los Angeles. So I don't think anyone was seriously contending that these schools aren't somehow an arm of the church.

 

      Now, you do get into questions like what happens when you're running a hospital? Although, the hypothetical from the Justices seemed to assume that the ministerial exception could apply, and indeed, if you look at the many, many cases in the Courts of Appeals that have applied the ministerial exception, those kinds of employers have been included as long as they were church-run and church-affiliated. And the question really was what are the job duties? But that's another great point in these cases.

 

Micah Wallen:  We'll now move to our next caller.

 

Caller 9:  Yes. The thought that if it says it's a duck, you don't have to find out if it quacks and walks like a duck. If it says it's a duck, it's a duck, and we can go no further. And it seems to be a kind of a freedom of conscious argument. And I guess I'm wondering out loud whether there ought not to be an approach which says if the state is raising a discrimination argument and implicitly alleging that the church is trying to get around the law, commit fraud in effect, that that should be some sort of presumption of, a rebuttable presumption at least, in favor of the church.

 

If the church says we're a duck, then the state has an evidentiary burden of showing that there is a significant effort to evade the discrimination law, and not just an occasional case here and there, that warrants the intrusion of the Supreme Court at least. Again, I'm thinking out loud, so that may not be very coherent.

 

Jesse Panuccio:  Well, thanks. No, you're hitting upon one of the -- sort of the key point, I think, for Justice Thomas and Justice Gorsuch at least, based on their argument, which is -- I mean, you give it maybe an apt description, which is if it walks like a duck and talks like a duck, then it's in.

 

In other words, that's enough. If the religion asserts that's what's happening is an important religious function, it would be too entangling, under the Establishment Clause, for the courts to probe further.

 

      Now, what you propose is, well, you can make that a rebuttable presumption, but there has to be a way to get behind that. It's not as if this particular question, as Justice Gorsuch points out, in RFRA and the Religious Freedom Restoration Act, and in typical Free Exercise cases, this is something the Court has dealt with.

 

      I think it's unlikely that that's where this will go; that they'll set up that kind of sort of balancing inquiry. I think we'd be more likely to just get a narrow remand where the Court says the Ninth Circuit established a rigid test and shouldn't have. But it's an interesting point, and I thank you for raising it.

 

Micah Wallen:  We'll now move to our next caller.

 

Caller 10:  Hi. Just to follow up, I don't think it's that difficult to test those questions. For example, in the Hobby Lobby case—I realize that's not a church—but Hobby Lobby said, "It would violate our values to include contraception and abortion in our health insurance coverage." And that was accepted. And if a religious institution, if a church, "That violates our values," that would be accepted.

 

      Now, if they push further and said, "It also violates our doctrine to pay our employees on time or to provide health insurance altogether," they could say that, but I suspect there would be significant pushback from adherents who have never heard of such a restriction. It'd be rather difficult because the audience for such a claim is not simply the Court but the members of that church.

 

So if a church really wants to say, "It violates our values to pay our employees on time," they could do that, but I think many religious institutions would be significantly constrained from making such false assertions because they'd have to answer to their [inaudible 00:49:35].

 

Jesse Panuccio:  Well, it's a good point. I wonder, though, whether it's a point for legal doctrine or just a reality, and really underscores what Justice Thomas might say about that, or Justice Gorsuch, is exactly. If a religion were to make a claim that were not sincere and that was outlandish or antithetical to the wishes of the congregation, then the congregation would self-police that by either changing the church or departing from it.

 

And either way, it's not the job of the courts to probe inside of that because, again, that puts secular courts in the middle of a dispute that might be between church leadership and congregants as opposed to something that secular courts should be involved in.

 

Micah Wallen:  Jesse, did you have anything else you wanted to cover while we're waiting for a question to come in?

 

Jesse Panuccio:  No, I think that's it. I really appreciate the callers clearly listening to this case and interested in it and some great questions that really hit on all the things that were raised at the oral argument this morning. And we should know the answer by the end of June as to how this case is going to come out.

 

Micah Wallen:  Wonderful. And, actually, we had two other questions come in while you were mentioning that, so we'll go ahead and try and fit those in before we close here.

 

Jesse Panuccio:  All right. Keep going.

 

Caller 11:  Question from Orlando, Florida here. Thank you very much for your well-reasoned commentary this afternoon. My question is the discussion, I felt, was very focused on the functions of the employees. Do you see any future hope for some consideration of how the employee fits into the faith community of the employer?

 

Jesse Panuccio:  Flesh that out a little bit more. What do you mean by that in terms of -- as a separate inquiry from function, just how do they practice the faith within or how are they viewed by the congregation? Tell me a little bit more what you mean by that?

 

Caller 11:  How are they viewed by the congregation, by the employer, by the fellow employees? So if we remove it from the school entirely and this is a different kind of employer, so it's not a school dealing with children, but, say, a healthcare sharing ministry, for instance, and you have all of the employees who regularly speak with members or potential members who pray with them, etc.

 

So their function, while their title may not be a minister, their function is to speak about the religious belief of the organization. So do you think that there's any future hope of considering that?

 

Jesse Panuccio:  Okay. Good question. So I actually think what you're pointing to would be encompassed in the original, as characterized by the Ninth Circuit, four considerations of Hosanna-Tabor, where they looked at title. They looked at training, they looked at function, but they also looked at how the employee held herself out to the religious community and how the religious community viewed her.

 

      And so that is, at least the first part of what you asked, was part of the context the Supreme Court originally considered in 2012.

 

And then the second part of what you asked was really, I think, getting back to functions. And so I do think, at least as originally conceived in Hosanna-Tabor, all of that was encompassed in what the Court looked at.

 

Good question. Thank you.

 

Micah Wallen:  All right. And we'll now move to our last question.

 

Caller 12:  Yes. I'm sorry to keep coming back. This is such a fascinating subject. I'm intrigued by why the Court granted cert in this case in the first place. It seems like the Ninth Circuit decided to rewrite the Supreme Court's opinion and develop a four-part test out of a one-part test. And could the Court just be saying, "Well, here we go again. We've got to straighten out the Ninth Circuit, at least until the President can get enough conservative judges on the court, on the Ninth Circuit."

 

Jesse Panuccio:  Well, yeah. Well, thanks for that question. If what you're asking is why -- if the idea is that five or more Justices thought the Ninth Circuit was so wrong, that they departed so grievously from Hosanna-Tabor, should it just be a summarily reversal and send it back down for reconsideration?

 

      I suspect the answer is that, one, those are rare. As you've heard on this call, there are a lot of difficult and serious questions to answer around this. And so, when the Supreme Court has a good vehicle, they tend to take it to flesh out further their views on certain doctrines.

 

And if you look at Hosanna-Tabor, in the opinion, the Court said, "This is our first-ever case on this, and it's enough for today to say we're going to look at the entire context. We're going to recognize that there is a ministerial exception. We're going to look at the entire context of this case and say that it applies here. And we will leave for another day to flesh out further how this might apply."

 

And, now, we're almost a decade later, eight years later, and so these post-Hosanna-Tabor cases have been percolating around the circuit courts of appeals, and the Court probably felt it is time, and worthwhile, to give further clarity to what it's thinking in this area. So that's probably why there was a cert grant and full argument, and we'll get a full opinion.

 

Micah Wallen:  All right. Well, Jesse did you have anything else you wanted to say before I close up?

 

Jesse Panuccio:  I think that's it. We've covered it. I just want to say thank you to you and to The Federalist Society and to all the listeners and callers for a fun and interesting conversation this afternoon.

 

Micah Wallen:  All right. And on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.