Please the court, the separation of church and state means anything at all, it must mean the government cannot interfere with the churchs decisions about who is authorized to teach its religion. In this country, it is not the province of justice, juries or Government Official to decide who will teach catholic fifthgraders, or who want to teach Jewish School is what it means to say here, o israel, the lord is one. That is what these cases are about. Who controls who teaches the faith schoolchildren. The answer is easy. Churches must choose those who teach their faith. That is one of the most important religious functions for any religious community. Pass anaphase onto the next generation. Since it teachers with the church. Primary agents for teaching the catholic faith to fifthgraders, much more, they fall within the exception immunity. Less fondant would have accorded court ignore all that. Substituting a standard that relies on the title to determine whether there is an exception. That would wrongly elevate form over function enforce judges to decide what title some religious enough to qualify. And it would entangle churches to date. I no court is ever adopted respondent title tests. Respondents are recycled many of the arguments that courts rejected years ago. The pretext inquiry, the notice requirement, the idea that freedom is association makes freedom of religion entirely unnecessary, all were raised in hosea tabor and rejected unanimously. Eight years later, arguments are no more convincing. There is no reason for courts to get in the business of teaching religion. The ninth circuit should be reversed. Counsel, you say in your brief that personnel is policy and that teachers, as part of their job personifying church values. Is that enough to trigger the exception, in your case . I think, in this case, i dont think that is something you have to address and i dont think that would personification july i dont have to address it, but you do because i asked. [laughter] yes, your honor. On the basis of personification alone, i dont think that would necessarily mean that we would win the case. I think the right answer is that , what functions were they performing, and those functions were to teach the faith for hours on end over the course of the week. Is it your argument, both with respect to personifying values as a factor, and was hit other functions that the teachers might form, apply in the case of teachers who are not catholic because many Catholic Schools hire teachers who arent . Mr. Rassbach so, i dont think it does. Hosanna tabor rejected there wasnt a problem with nonlutheran teachers cannot teach lutheran kids. They get to decide who best performs those functions in courts should not be in the business of secondguessing that. I would point the court to some of the briefs would in talks about a difficult it would be for jewish entities if they cannot hire noncoreligionists. Justice thomas . Justice thomas how exactly would you go about, or secular cord go about determining whether employees duties and functions are religious or important . Mr. Rassbach i think the best way to think about it is, with respect to the religious part of it, i think i think you can look at the list of things that this court talked about in hosanna tabor, teaching, preaching, as well as the list that was in concurrence by Justice Alito. And get that as a kind of safe harbor in terms of if one of those is present, then it clearly isnt an important religious function, but then, lets say you have something where the church, or the religious defendant is raising other thing as an important religious function, then i think you probably you would have to look and do some difference to the churchs understanding of that. So, this is pointed out in the brief by professor mcconnell where he talks about substantial difference about the importance question and the religious question. Justice tom is thank you. Justice ginsburg . Justice ginsburg i would appreciate your answer to two questions. One, who among the Religious Schools employees, who among them are not ministers . The second question is one that the chief already alluded to. You do not have to be catholic to be a fifth grade teacher . How can a jewish teacher be required to model catholic faith how can a jewish teacher be a catholic minister . Mr. Rassbach to answer both of your questions, your honor, with respect to who is not covered, i think it would include anyone who was not performing important religious functions. For example, the janitor. You have the baltimore hebrew congregation case cited in our briefing, where the janitor, although he did explain what a is to the schoolchildren, it still did not, did not want that that did not qualify him as a minister. And that was decided under hosanna tabor. The same thing would be true if someone is just doing the idt for the company or the school. As for Justice Ginsburg [inaudible] mr. Rassbach did you say coach, your honor . Yes, i dont think a code would be one. It would depend on whether the person is performing an important religious function. If they are just a coach and do no other functions, they would not come in under the exception. Justice ginsburg you mean in leading the team in an opening prayer . Mr. Rassbach if they do an opening prayer, i think there would be, just saying that, just doing that would probably come within Something Like this situation with the baltimore hebrew congregation case, where it is essentially to minimus. It is not something by itself does that. I think in reality, that is not going to be a big class of cases because if they are leading a prayer before the game, they are also doing a host of other activities. Justice breyer . Justice breyer i think that the statute itself provides for religious exemption for hiring the person of a particular religion, where that is connected the carrying on of the religious organizations activities. There is also the bona fide occupational qualification. So, i think this case has to do where a religious organization might dismiss someone on the basis of race, religion, national origin, where that isnt related to religious where that isnt related to the carrying on of the religious activity. For example, person who is handicapped. So, why of the ministers isnt it enough to have the ministerial exemption applied to that kind of thing . That is, whether a person holds a position of religious leadership or authority . Theres different kinds of evidence that would show that. So why do you need more than that . Mr. Rassbach i think it is because of the establishment clause, your honor. You know, this is not just a sort of bilateral interaction between the employer on one side and the employee on the other. There is a third ox getting go red here. We have a separation of church and state. The process of teaching schoolchildren what to believe align i take it to my question, which do the other religious organizations need other than the ministerial exemption confined to leadership, and your answer seems to be they dont . Mr. Rassbach the employee of the synagogue school, who starts wearing antihavoc the medic tshirts to school, antisemitic tshirts to school past to be covered by first amended doctrines, not just the ministerial exception. So even if the janitor did that, it would follow under one of those other kinds of doctrines, not only not under the ministerial exemption itself. Why isnt the exemption and title 7 that allows for a religion to be a qualification for certain jobs sufficient to address the question of a teacher who teaches religion in a religiouslyaffiliated school . Mr. Rassbach right. It is true, your honor, that the if the person is if the bona fide if the exception applies here, it wouldnt actually cover most of the kinds of people who carry out the important religious functions, so there was a disjunct between two things. Thank you. Justice sotomayor . Justice sotomayor counsel, there is a difference between a teacher who teaches a religion in class and a Secular School, and and a teacher who teaches religion in a Religious School, but i dont know what the differences, meaning can you point me to anything in the evidence that the teacher here was acting any differently, working from a workbook from a religious class, than a teacher does a nice Secular School . That is my first question. My second question is, i think what is being confused here is that you are asking for an exception to law that is broader than the ministerial exception generally, and broader that is necessary to protect the church. The two teachers at issue here are not claiming that they were once she was because she came down with cancer and was fired before a medical condition. All of a sudden, she reaches a certain age and she is fired. So, youre asking for an exception to the family of medical leave act, to wage and hourly laws, to all sorts of laws, including breach of contract because at least one of the schools here, contract with the teacher says will discriminate because of the teachers age or disability. You are asking for something broader than giving the schools the power to hire or fire certain kinds of people because of how they teach their religion or dont teach the religion, and you havent explained to me why it is necessary. I dont know what proselytizing this role played in simply teaching about religion. Mr. Rassbach your honor, they were doing much more than teaching about religion their job number one in their overriding commitment was to teach these kids to become catholic, and to believe in the catholic faith. I am not sure i agree with the premise of the question. With respect to religious reasons, first of all, you know, hosanna tabor rejected that exact same argument and said it missed the point. The reason it misted was because it is inherently the reason it missed it was because it is inherently align Justin Justice kagan . I am hoping you can answer the hypotheticals in a few words. Like yes he qualifies, no he doesnt qualify. It was the first one. A math teacher who is told to teach something about judaism for 10 minutes a week . Mr. Rassbach if he is teaching it that is all you know about them. Mr. Rassbach then, i would say probably not. Ok. Next is someone you mentioned at the beginning of your remarks , it takes about 20 seconds to say. Mf teacher who was told to begin every class with leading the shabbat . Mr. Rassbach i dont think that is likely because align mr. Rassbach a math teacher who was told to embody Jewish Values and infuse instruction when she was value . Mr. Rassbach if it is that alone, probably not, but depends i really am asking these things alone. A nurse at a catholic hospital, who prays with sick patients, and is told otherwise to attend to their religious needs . Mr. Rassbach i think a nurse doing that kind of counseling and prayer may fall within the exception. Mr. Rassbach may fall within it. Ok. A press communication staff or who prepares press releases for religious institution of all kinds that they need . Mr. Rassbach that shell fall within it because it is medication that should fall within it because it is an exemption. Mr. Rassbach and someone reconnecting with your Faith Community . Mr. Rassbach that would probably bode it depends on how much connecting there is. Mr. Rassbach an employee at a soup kitchen who distributes religious literature and leads grace before a meal . Mr. Rassbach my guess is that would be under the same kind of the same case i mentioned earlier. A Church Organist who provides musical accompaniment for select services . Mr. Rassbach i think that would fall within it because that is an important religious function, and that is the main job. Mr. Rassbach a cook who is not jewish buddha prepares kosher compliant meals for children at a Jewish School . Mr. Rassbach no. Ok. You got through the mall. Thank you. You got through them all. Thank you. What is the connection . Mr. Rassbach we laid it out in our briefing. What is this person doing, performing on behalf of this religious body . What is the function they are performing on behalf of that body. It is not all religious exercise. It is a subset of the kind of religious exercises that are out there. It is the kind of things that were listed in the alito concurrence and disorder verbs we teased out in hosanna tabor, which is teaching, preaching, guiding, communicating, things that are crucial to what you do as a religious organization. Justice gorsuch . Just disgorge it i would like to follow up Justice Gorsuch i would like to respond on a previous question on that religious activities would not qualify. You are asking a Secular Court to make that judgment. Even when some deference is given to a religious organization in a qualified, immunity sort of way or otherwise, youre still asking us to make a judgment between all fis as a minister and who does not judgment between who qualifies as a minister and who does not. And i am wondering, does that pose some problems for you . And for your clients some of these cases . I could easily see as school in wichita they are teaching these kids to become apart of a faith. That everyone is a minister and not just limited to clergy. What do we do about that . The next case is going to be a school in which a janitor takes a pledge, or a school bus driver, or a coach, and the all believe sincerely they are all ministers, and you will have us tell them, no,. Mr. Rassbach i think is apart of the issue with the use of the word minister. This is a kind of immunity that goes to the kind of things that are done, then things you would never contemplate having a governmental entity do. Therefore, you know, it is true that they may well be within their faith tradition a minister, but the term minister is explained in hosanna tabor, it is a legal term here. It arose in a 1955 case. I think there is a real you have to see it as a subset of the kinds of things done on behalf of the religious community that make it distinctive. It will not cover the gas station attendant, or the bus driver. It has to go to those functions that make religious, religious communities distinctive within our society. Justice kavanaugh . Justice kavanaugh good morning mr. Rassbach. Do you think the exception applies to teachers who teach religious doctrine, or teachers perhaps more broadly, who teach religious values . How would you answer that question . Would of the two are you looking at . Mr. Rassbach if a teacher is teaching religion, devotional e, doctrine values, what have you, or religious practices, then that teacher is going to come within that exception. This is an establishment clause rooted doctrine. If it is something we will start to feel nervous about having any Public School done by Public School teachers, then how can you turn around and reach into the religious, private Religious School, and have the government tell them how to arrange those affairs . The number of questions far has gone to the limits, if you were to win this case. We are thinking about where it would go. Say the english teacher who sprinkles and references to matthew 25 and feed the hungry, or the art teacher who talks about art in the vatican, or the football coach who says a prayer before every practice or game. The basketball coach who says, our lady of victory, pray for us. Those kinds of things are definitely instilling religious values. Are those people therefore covered or not covered . Mr. Rassbach i think, in most cases, they probably if it is only that. If it is just doing the one thing, the saying grace before meals situation, that probably would fall outside of the exception because it is not at the heart of what they are doing, but i dont think there is a hold of situations where that is actually the only thing that such coaches are teachers i guess the question that Justice Thomas and Justice Gorsuch have is are we going to have litigation over what particular students take out a particular coaches . The physics teacher that has the crucifix on the wall is one thing. If you have a physics teacher that adds a sermon to every class, that is a different one. Thank you, counsel. Ms. Wagner . Thank you. May it please the court, there are three proposed proposes to the exception on the table. Employees function has been central to the analysis. Second, in the ninth circuit, an employer must check off one or more at morality is even if the religious function is clear. Should go the court even further and make formalities the key, with functions at the cross check. The first approach is the right one. The touchstone of the exception should be, whether an employee performs important religious functions. The First Amendment interests at stake, and because, critically, more neutral among different religions. We are talking about teachers of religious doctrines at a Religious School. Teachers are ministering to their students by teaching them how and why to be catholic. Exceptiond follow regardless of what the school tells them. Pose on a look that all of the factors in the case and the issue now seems to be what emphasis you should put on one of those factors, religious function, and what emphasis on a different one, the ministerial title. In a dressing the question, i would like to repeat the justices question to you as a representative of the government. Determine supposed to what is a significant religious function and what is insignificant . Mr. Chief justice, with respect to your first question, we do not we think it would be up and appropriate methodology here. A think the reason why function from this approach, is as i mentioned, it advances the purposes identified in her favor. The way that one would return whether this is an important starts byfunction looking at categories set out. Clearly, if the court were to pick up collaboration, then we are talking about things like preaching, teaching, worship, and rituals. It is a pretty defined set that we think would cover the cases in the area. That, thisderscore concept has been around in the lower courts since the 1980s. It is not something we are inventing here or that the courts will struggle with. Thank you. Justice thomas . Justice thomas my question is similar to that. I am as to what you do with a chemistry teacher who starts hail mary, or the chemistry teacher who is a non nun who starts chemistry mary, or thehail teacher who teaches religion but does it in a straightforward and objective way. How would you handle those . I do not see what standards a Secular Court would use to is anine which of those important duty or function, a religious duty or function. Theratner with that important religious functions are those of the type i have mentioned before. Then the question and some of these cases that have been hypothesized, isnt really a missile part of a persons job, or as patricia called it, a minimal part of a persons job. The job is in one of your hypotheticals, then of course the answer is yes. Something is teaching in a secular way and we are talking about one prayer, the answer may not be yes. There have been three main buckets of recurring claims. Principals and teachers of Religious Schools, worship musicians, and leaders of congregations. Those are the exception claims that we see again and again. Would all bee resolved or the court would set a clear path forward if it were to adopt a function approach. Justice thomas thank you. Justice ginsburg . Justice ginsburg the exemptions list is staggering. These people are exempt from all discrimination laws. Iger who does everything that the two teachers in these cases leader, also reports a students complaint of Sexual Harassment by a priest and is terminated. I think that question goes to what is covered i exception as opposed to the who falls within it. We are simply asking for the same thing this court decided in hosanna specifically things like retaliation of abuse reported would be covered. Involvedd that claims hiring and firing of an employee necessarily went to a religious organizationss ability to control and that those claims are categorically concluded. We provide the same rules and what is the appropriate methodology for determining that it is one who ministers to the faithful . Justice ginsburg having cancer has nothing to do with the performance of religious functions. You take f have time off to take care of her disease. Yes . Is tner the answer but this court said in hosanna that requiring a particular religious reason misses the point of her religious exemption and that it related to hiring and firing. Justice ginsburg if it is categorical, why does it care if they teach reports a student claim of abuse by a priest . Theretner again, i think may bit maybe arguments with that retaliation claim would have to be covered. My point is the court avoided and we canannataber avoid that here. Justice ginsburg it would be the same as what was reported at the as the principal of the school had been skewed stealing from the school regularly to pay for her gambling excursions to las vegas. The teacher reports that and she is terminated. All of thisagain, relates to what is the potential scope and what are the types of claims and, in particular, retaliation claims, to which the exception would apply. I think there are logical reasons why some of those claims could come in, but we think the better approach excuse me, by they would be covered exception, but we think the better approach would be to say that we do not need to decide those outlier cases now. Were deciding things that relate to the employeeemployer relationship. Justice breyer . Breyer i would like to it, the as i understand kinds of claims that are brought religion. Out isre is a bfoq and there religious exemption. Taken together, where the organization do something related to religion and that is why they dismissed the person, they are likely to win if the case is brought in the first place. Were talking about the kinds of things that Justice Ginsburg raced. Should there be an immunity there . I think the Court Previously decided yes, there should be, when the person is a minister, because in that situation, do not even get into it. So who falls within the ministry . Can say a person of leadership or authority. That is not going to help much. When you take your categorical minister, person of leadership in person of authority, what do you want to add . How do explain to people what that should amount to . Ms. Ratner you need the other categories discussed in hosannatabor. It does not apply to leaders of congregation, it applies to employees who preach the belief, these their faith, and carry out their mission. We think at a minimum, teaching during the week to school tilt schoolchildren and not just those preaching the faith on the weekend to adults, are included in the category. When we are talking about what it means to carry out the religions mission, we think there are other categories, some lake worship, out leadership, and rituals that would also come in. Justice breyer why . Is it necessarily necessary to keep out of it entirely even if the teacher or the administrator does discriminate on the basis of handicap . Once your because have made the decision that ameone is performing religious function, and this tort said that getting in why they are dismissed misses the point. At that point, the organization has to be capable of deciding who will minister to the faithful, who will fulfill the role of teaching Catholic Schoolchildren that jesus is the son of god and that god created the world, and this is the appropriate way to be catholic. Justice breyer thank you. What do you think is the relevance of titles in this inquiry . We think with all of the considerations this court mentioned inh in relevant,bor may be and whether someone performs a religious function. Require aopposite, to title as a separate checkbox that needs to be ticked off, is going to create a real problem in terms of neutrality among religions. Some faiths have those formalities and some do not. To take a particularly salient example, the Lutheran Church had andlable to it teachers those types of nonordained ministerial type titles are not used by a lot of faith, in particular, catholicism, judaism, and others. Is why the existence of the title can be used to help understand someones religious role but not as a freestanding inquiry. How does it help to understand a persons role . Teedos people who do exactly differenthing in two review religiously affiliated schools, but one has a title and the other one does not have a title, other than title of the absence should or presence of the title make a difference . A. Ratner it should not in circumstance where we know clearly what individuals are doing. It is a little harder to understand, based on facts whether someone plays an important religious function and if the religion gives out titles of religious types functions, perhaps a could shed some light on the question. But in a circumstance like we have here were a teacher performs the exact same function as in hosannatabor, then we do not think the absence of the title should make a difference. Thank you. You are encouraging us not just to define who is a minister by function, but youre asking us to defer to religious organizations determination of what is an important religious function. That is a recipe for saying, the teacher who said the prayer at a class, everyf teacher, whether a math teacher, a computer teacher, a gym teacher, they are doing an important religious function school has toe say is that that is important to us. I thought what hosannatabor, our prior case, was recognizing is that when you are talking about a leader, a religion, stewards a that they are entitled to this absolution. Fromre now absolution liability in law. You are now suggesting that we tojudges have an obligation expand the exemption we created in law. I thought that was was congress that would do that and not us. As Justice Breyer indicated, they have already done it. You are asking us to broaden job is nowone whose primarily religious in any way. For decades, the lower courts, most of them, have not used anything you are proposing. They are using primarily religious, not important, but primeras primarily religious functions. I do not think that teachers who are hired as lay teachers, not as religious teachers, it is hard to see how they qualify. As primarily religious leaders. On your first question, when we are about confined to religious organizations, we think that this court has already outlined objectively what would be considered the class of important religious functions. What were talking about is a rare case where there is a whether it is important to worship, whether a ewishw teacher at a j school should teach the jewish faith. We agree that the exception who performhose other functions involving stewardship and the personification of the faith. That is exactly what teachers do. The question is the methodology. Is this based on what you do, or what you are called . I was struck by the emphasis your brief gave on the idea that it was not important whether an individual is not a member of a good take your faith. As i understood the central ismise of the exception, it that there were certain individuals within faith communities who have a particularly distinctive special role about how to propagate the faith. If a position can be filled by any person and not by a member of the faith, isnt that a good sign that the employee does not have that special role within the religious community . Ms. Ratner no, i dont think so. There are several reasons. Most important one is religious judgment about who is qualified to perform certain important religious functions and how much of the creed of that religion you need to share to perform that function. The second is that this is really entangling inquiry to engage in practice and that the result will have a disproportionate effect on religions minority religions. These are not just abstract questions. Said ithe schools preferred catholic teachers but it would make exceptions for certain other protestant religions like lutherans. I do not know whether to partial that coreligionists requirement, i do not know whether that is different from a reformed Jewett School that would hire in Orthodox Church teacher, jewsih school that would hire an Orthodox Jewish teacher. In some of your answers, you have talked about the language in hosannatabor and, of course, hosannatabor connected that up with training and when you take all of those withs away and youre left the terms preaching and teaching, that is when you are left with questions of how much, of what kind, any prayer, any amount of teaching . We should probably deal with that. Way to do it that is by understanding that the religious functions of the type discussed in hosannatabor have to be in a meaningful part of these duties. A lot of these are outlier hypotheticals that are not circumstances where this even has arisen. Justice gorsuch under the First Amendment, we have emphasized repeatedly that we do not inquire as to how important the plaintiffs religious believe is, or how central it is to their faith. We protect any seriously held religious belief precisely because we are worried about entangling courts and making religious judgments, and discriminating against those who may have views about what is important and different from our own. It seems to me that instead of pursuing that line of argument, and suggesting that the sincerely held religious belief about who is a minister should control, youre asking the court to involve itself in deciding for itself who is not important minister. In the teaching of religion. Doesnt that create the sort of entitlement problems that we try to avoid elsewhere . And discriminate against minority religions that have different views than you are i might have . He reject all of these hypotheticals have speculative or have not yet really is risen, but the very attitude proposed seems to me to invite them. We havenk the reason not advocated for a completely deferential approach is the reason alluded to, and that is different religions may have different views on who constitutes a minister under that particular faith. That does not necessarily map onto the fear that this court has said has to be left to religious organizations. We do not think there is a way to entirely extricate yourself from the problem so the question becomes, what is the methodology. Is that discriminating among religions and disadvantaging minority religions, that is a significantly greater worry if we are talking about things like training, then if were using functional approach that looks at the type of things religion usually operates with. That is exactly the problem, usually. That discriminates in the favor of majority conceptions of teaching. Why could we not just say, sincerely held religious belief should control, just like we do everywhere else . Again, your honor, everywhere else, we are talking about sincerely held beliefs. We are talking about a constitutional protection this tort has said is limited those ministering to the faithful or who personify the think that we do not will necessarily map onto the particular definitions of him minister that one organization may use. Thank you, chief justice. Good afternoon. I want to confirm your view that the roots of the exception are the constitution, not statute. The professor first two principal religious autonomy rooted in the establishment clause. Is that correct . That is correct. I do not see how you could read the course decision to adopt this as some sort of statutory analysis in the same vein as catholic bishop. I think it is clearly First Amendment in that case. You used the phrase, teaching the faith. And if your side would prevail in this case, what does teaching the faith mean and a similar question that i asked her colleague about, instilling religious values and not just teaching specific doctrine, ofool can have a creed instilling the value of being a person for all students and all the teachers and coaches are told to underscore the message and how they go about instructing and coaching students, that is the religious value and theyre all told to pursue that in different ways. Do we analyze a case like that . Having those cases will be more difficult. It is a case where you are talking about the teaching of religious doctrine on a near daily basis, as we have here, and as the court has in hosannatabor. If you are talking about modeling the faith, i think you need to do analysis about whether, in practice, this particular position is expected to transmit those through that way. I would not say that categorically, those individuals are either outer in. It will depend on what it means in practice. I just want to underscore that the ninth circuits position is really an outlier position. All of his concerns about repercussions, were just asking you to eliminate the decision that has deviated from the lowerl focus in the courts functionbased approach. Thank you. Two minutes for rebuttal. Your honor, [laughter] you do not have anything just yet. I think the first half of the argument is illustrative of my problems with the important the dysfunction on the other side. In terms of consequences, it was readily admitted that all nurses in catholic hospitals would be covered and as Justice Gorsuch those traded. I want to focus on the narrower argument in the case that i hear the schools and government making. That is that these particular teachers should be considered ministers, though they did not have to be catholic to have their job, simply because their job included teaching religion. Our position is to reject this contention for three reasons. The schools argument would teacherse than 300,000 in Religious Schools across the country, Employment Law protections. Necessarily included in the number are teachers who teach socalled secular classes. This is been a focus of a lot of questions this morning. , has said in no uncertain terms, theres no way to distinguish a teacher who teaches religion in a Religious School from a teacher who teaches general curriculum or a secular course infused with religion. And from the u. S. Conference of catholic ships to the American Jewish committee, they are in absolute pains to underscore this reality. The emphasis they emphasized that all teachers and Religious Schools infuse instruction with religious doctrine, regardless of whether they teach religious order secular subjects, not just mad and science. Already is readily apparent, but let me give you a couple more. Imagine an english teacher that teaches rhetoric using the sermon on the mount, or a history teacher that describes the equity us exodus from egypt. Or the Science Teacher who teaches creationism or intelligent design. I do not understand what the other side means when they talk about the minimus teaching of religion, or outlier, all teachers in Religious Schools are necessarily in play in this case. Is fair toit describe your position compared to friends on the other side, as more formal debt formalistic in using that word in a nonpreferred of sense. You are much more focused on titles, i would think, and whether or not you or performing religious functions. Theoncern is one raised by opinion that fits put different that in titles and some are more hierarchical, it is important and in others, they are not. If youond concern is want broad protection, just start writing out titles to everybody. It would be covered. I would like your reaction to that. To be clear, the court should adhere to the multifactor laid out, which starts with what we would call objective factors. One of the factors is also things like the individuals training, etc. We think there are good places for courts to start. The court has mentioned the entanglement problem here are extraordinary. Once the Court Returns to religious doctrine and how religious values come into play. You also said about manipulation, i think you have a little case study in the last eight years since this was pagesced, you have seen 35 and 37 in our brief, religious employers looking to claim broad protection, are being told to put out the importance of the religious function of employees and assign daily prayer activities in their life. They are not giving given special titles. The titles themselves even on their own terms are meaningful things. You can look across all sectors of american society, including churches, to see that. Rely solely on titles. We would just say it is important to start with titles. Just like in hosannatabor. Justice thomas thank you. Just first a general question. Would exactly what these teachers were doing be a violation, if they did it in a Public School . A violation of the establishment cool clause if they did it in a Public School . Is aisher i think there you and no answer to that. Some of the religious teaches step over the line, but it is commonplace for religious religion to be taught in Public Schools. Let me clarify one thing that teachingbout devotional he interests school. The document, lay teachers in Catholic Schools, which is kind of the touch point for what it means to teach catholicism as a layperson, even when they are in Public Schools, they should , it tellstional he them. It is not just the idea that a catholic is to witness the faith or even persuade people to become catholic. Justice thomas it is my understanding they actually led from time in prayer to time. That is what i mean. Not the minimal performance of their duty, but the sort of standard, we too weak oweekmance weekt performance. Worshiper prayer and would step over the line but i do not think it tells you anything meaningful in terms of what a minister is because if prayer and worship were enough, then you would have not just the football coach or the administrator that gives the morning prayer over the last at school, but you have nurses in catholic hospitals, teenagers who are camp counselors. Prayer is one thing to look at but we do not think it is enough to make some of the minister. Justice thomas things that would violate the establishment cause clause in the Public School are not considered religious enough for a free exercise protection one done in a progrowth school . I wholeheartedly agree that free exercise protection is available in this case. I want to make clear that any religious reason for firing these teachers or for otherwise regulating the teachers would be entitled to the highest free exercise protection. To prove side needs that there is an establishment clause violation in this case going forward. We think that is something that requires more than just leading people in prayer. It requires being a leader in the church, not just being a member, but a person who, the stewardship of the congregation has been placed. That is what raises the establishment clause problem. Justice thomas you have relied somewhat on the ministerial designation. Determine that, especially when we look at nonhierarchical religions that pastor, and that sort of designation . Mr. Fisher i think the best way to do that in a religion that did not use the kinds of titles the Catholic Church uses, would ,e to do with the judge did which is to say if a person is performing all of the same things as what would typically come with a title, then that may well be relevant. I just do not want to give the appearance that our test relies simply on title. Was the training reflected in that title . Even if religion is not hierarchical, you are most likely going to have a a significant religious training in play when you do with a religious leader in the congregation and the like. Justicestice roberts ginsburg. Justice ginsburg i have the same question youre asking about, discriminating against some hierarchical religions, and you are saying even those people have special training that establishes them from members of the congregation question mark congregation . Mr. Fisher i think that will be true quite often. Its a good example in that respect, the foundational case for the concept of ministerial exception. One thing only to add, i think it is correct and we agree with the premise that different religions off ought to be treated equally, but i do not think this should require the courts to have all of the people perform the same functions across all religions to be treated the same. Think about the 11th amendment immunity that applies to states. Different states structure their own government differently. They have different administrative bodies and some have bigger administrative bodies than others. We would not say that were treating the states unequally. We respect the decision the states have made. Here. To hear so too, we are respect in the decisions that churches themselves make about how to structure , in whom to put their faith. You dont seemg to make much out of what i find disturbing in all of this, that a prison could be fired or refuse to be hired for reasons that have nothing to do with religion, like needing to take care of chemotherapy. I do not want to give that impression at all. We think that is the center of the case in terms of how this court deals with it. It is not just that there are statutes of hiring people at the time aate, but any religious employer wants to hire, fire, or take other employment actions for religious reasons, the statutes themselves let them do that. If even then, they do not get what they want, they can raise a free exercise clause. That exception matters is the case where religion is not acting for religious reasons. This case come with cancer treatments and being fired because she alleges she got too old, those are the cases where the exception matters. Stripped of all the labels, i think we could make this case more, and that it is. The best way to think about the case is to say when does the church, a religious employer, require immunity to hire and fire people for whatever reason they want, whether it be raised his coronation, whether it be any other thing that does not have anything to do with their religion, and when, on the other hand, is it enough to say, of course you have an important stake to have functions and duties, and you are allowed to fire them and disciplined them. Forsibley cannot do it nonreligious reasons. We think when it comes to lay teachers, 300 thousand lay teachers in Catholic Schools and other Religious Schools in Catholic Schools around the thetry, not to mention hundreds of thousands more of teachers and colleges, when we think about those people, it is enough to serve the religions legitimate interests to say, if you have a problem with how they teach religion or how they are otherwise holding upholding themselves, you can hire them or fire them. You cannot say, we do not care where we fire you, but we still give immunity. We think that is a bridge too far. Thank you. Sburg said we areer you looking for, where is that the court should really stay out with respect to religion, that we will not even look at this defendant that this committed a violation that has nothing to do with religion. Justice ginsburg went on about that. All right. That is what the case does hold. But who are those people. Ministers, leadership or authority. Kind of has that religion. Other religions, no. Educationnk without keepingat circumstance, the religion independent, what advice can you give us . What should we write . We start by saying leadership or authority, but what else can we write, or what should we write so wede the lower court do not meddle much too much question mark too much . Mr. Fisher in terms of theory, i think youre right to be concerned about entanglement. That is why we say the first thing you should write is the same thing he wrote of the beginning of hosannatabor, which is that to the extent can be gleaned from objective factors, that is where courts ought to look. The designations that religions themselves make. When that is not a conclusive answer, we can look at functions but we have to be very careful when we do and that ought not drive the analysis. Think in the entire first half of the argument i ever heard a meaningful definition of whats important religious function is. I respectfully submit you will have impossible entanglement problems. They should conceive the janitor, maybe the administrator, though the has been argued by other religious institutions in the past but they seem to conceited, there will have to be a line drawn so let me tell you in terms of practical terms what is important. , there has been several decades of exception in lower courts. Consistent with the overwhelming weight of the authority, i cannot only give you my theory but lend you a practical insurer assurance that for several alldes, and these are gathered in footnote one of our brief, courts consistently held that lay teachers and Religious Schools, were outside of the ministerial exception. Durable ands workable and the federal government brought many of those cases and establish the rule and have the rule across several ministrations for many decades. Like the case where you have a hard line to draw, you can take some comfort and decades of experience for the government passes own position that prevailed until a moment of this case right now. Bolsterthat should help my position in practical terms. If you write a position that says all important religious functions trigger the ministerial exception, i do not think there is a way to escape you have cases with nurses, the football coaches, the summer counselors. Sidenly thing the other says to that in the brief is, those cases have not been brought so much. That it showsis how revolutionary their case would be. Hazard to theod cases. And it was said this morning those nurses would be covered. Exception was not even raised in those cases. Now youre talking about hundreds of thousands of nurses being stripped of protections. Herlast thing i will send suppressed who consequences come were not just talking about employment discrimination laws. Know hosanna tabor annatabor equal pay act, many other and many states have laws that require a certain amount of education and training, or they have background checks. I do not see how you could uphold the constitutionality of any of those requirements. The theory is for all lay teachers in Catholic Schools or other Religious Schools teaching religion, the government could have nothing to do with the reasons those people are hired for or fired for or what their qualifications might be. Justice alito this issue could come up in many different contexts, as the question has brought out. What is before us is a specific, or two specific cases, and it has to do with teachers in a religiously affiliated Elementary School. Suppose they taught in a secondary school and they taught one said that, religion. Students came for 50 minutes a day and they had a religious class, taught by these teachers. With a qualified . Is your assumption in the hypothetical that those teachers status, no special training or title or the like . They have the training the school thinks is sufficient. Do you appreciate that the very term minister treats different religions differently . It is a predominantly christian protestant term. As you apply it to other religions, its application becomes less and less clear. They do one thing. They teach religion and they have the title of teacher of religion for a Catholic School. With that person will have no other ministerial status. But if you had that sort of a case, im sorry . Person would probably not be a minister still. You do not have to decide that here. The person would not be a minister in that case because arguably, because even then, the person would include assuming a position of spiritual leadership, we think that is what the core of the exception is about. Comfortablee more i do think it is discriminatory but why is there less of religious autonomy issue and why is there not a very essential religious autonomy issue there . The function of teaching a religion to new generations is. Ssential i do not deny that for a minute. That is why schools have every ability to make free exercise arguments because of the neutrality of that function. But im happy to jettison the exception label. Religious employers immune . Ite court called ecclesiastical community. You need not just free exercise concerns in play, but establishment clause in play. It teaches religion fulltime as their job but does not have any other considerations in play. What is the fundamental decision between difference between that and between a school that teaches everything, and a schooligion set up by the religious body . The teaching of the religion is essential. It is the reason these schools are set up. Otherwise, the students could go to the Public School and not have to pay any religion and the fact that it is done by an Elementary School by one teacher that teaches everything, why does it make a difference whether it is structured that way or the way it might be in a secondary school . When someone teaches only religion and nothing else, it is more of an expert on the faith. When you have a general teacher that teaches religion a person is not seen as holding the same degree of a position in the hierarchy of the church leadership. I do not think there is a possible way to distinguish a cher who teaches religion just in terms of consequences, you take a step from a small group of teachers in school to hundreds of thousands of teachers in k12 crosscountry and hundreds of thousands more. You may or may not but what is an issue here elementary School Teacher who teaches religion as well as other things. Just in terms of numbers, i think you have 150,000 teachers in front of you in this case as the lower court case law were never considered to be ministers. Just with all due respect, i do not think there is a meaningful way to distinguish, as the catholic brief says, all of these briefs are on the other side of the case of mine, they all stress there is no way to distinguish somebody who teaches a secular subject with somebody who teaches has my client did in this case. Fisher, i understand the government supported mrs. Biel two years ago and argued that merely teaching two hours per , teaching religion, that did not qualify her as a minister. This rattner said something that took me by surprise, which is, that the to be saying ninth circuit got this because,r case wrong they were using labels do you understand the argument by her, and if so, why she wrong . I think in terms of what the ninth circuit did, the court was clear to say we were not resting this on that but looking at all of the factors and saying overall with these circumstances, they are not enough here. Ninth circuit also said that no others had deemed teachers to be likely is, which had so little religious leadership as part of their duty. The ninth circuit was right about that. They were right even after hosannatabor. But morecase was close generally, the ninth circuit was not just with the government asked for, but what the government itself asked for for decades, going all the way back to president reagans administration, that lay teachers are on one side of the scale and others that are spiritual leaders and seminary school, or on the other side of the scale. It is a sea change, even leaving every Everything Else aside, it is ac chains in terms of how teachers and schools are classified and whether they have any rights at all, or whether all the way to lower courts, you basically have Employment Law free zones in all Religious Schools. Thehe Fourth Circuit used primarily religious function test. You have not a doctor that were spoken about it brief. Can you tell me what you think . He limits of the test might be mr. Fisher we think it is consistent with rayburn. It dealt with a case where person who applied for a Pastoral Care physician, even though the woman in that case who applied did not have a ministerial title, but the judge said is because of the way this church is structured, it does not give women ordained titles. That cannot be determinative and we agree with that. We say function should be a cross check and part of the analysis to make sure you are not disadvantaging minority religions or otherwise being too formalistic and analysis. We agree with what the judge said. What might be of the disconnect between what you are hearing from different parties is that it is true that the other side can pull quotes out of cases before and after hosannatabor that say function can be what controls. Areyou will find as those all cases where there truly was an exceptional circumstance at , there are special reasons why those factors did not provide the right answer. Does havehe function an enhanced role in that circumstance. Another way to answer the question is to say that we are asking for lower courts what they have done the ground. Just make it concrete and say what were the lay teachers decadesdecorates and the status was nonministers. There is no way to reconcile those concrete holdings with the other sides view that the controlling agree is whether somebody performs an important religious functions, and secondly, with the governor now says is you defer to the religious employers themselves as to the question. If that were the real test, you have millions of people falling within the ministerial exception. I do not see how you could make any sense of what lower courts have done for decades, if that were the task. Thank you. Kagan i would like to take you back to Justice Alitos questions because some of the things you said surprised me. With respect to a fulltime teacher of religion, teaching religious doctrine and practice, teaching religious text, any of those things. I would have thought that hosanna tabor, even though it has a thing about commissioning and title and so forth, you know, those people whose job it religion and basically bring up the next important in understandings of religious doctrine and practice, but those people would be covered but you have said no. I want to say why . What i saidi think is i think that is the hardest case for me. Make arguments each way and i would not win. What i want to do is persuade you that those people are different from the lead teachers that i represent here. To enter your question directly, i do think that somebody who did only that function and had no other training, title or even had to be of the same state to perform that job, i think that that person, you could still question whether that person is central to the establishment of religion. I think there would be strong exercise in play there, that that person is not involved with establishing the church. As i said, i freely admit that cancan admist, you draw the line between people who teach religion fulltime otherwise lead teachers teaching a particular subject with religion infused. Justice kagan where do we draw that line . Suppose i think the fulltime religion teacher is protected by this exemption. Then i think Justice Alito raises a fair point here, well, in an Elementary School may be you have to do to their subjects too. Maybe it is a halftime religious teacher, a quarter time. Right away draw that line . 1 think the line mr. Fisher i think the line holds up pretty well in terms of just the basic idea that somebody teaching religion all day is going to be different from somebody teaching it just for a small part of the day, as part of a general curriculum. Maybe this is a way to think about it, even if you strip away the other objective factors, the school is going to hire somebody under slightly different criteria, with a different idea in mind, to be the religion teacher in a school. Compared to somebody who is going to be the general curriculum teacher. So, yes, religion in a Catholic School may be particularly important, but just like science and math and all other subjects, the school would not necessarily think that this person needs to be a leader and expert in that field to hold the position. Justice kagan what is the question of whether the person is a member of the faith . As i suggested to ms. Ratner, i was surprised by the emphasis they put on that, but on the other hand i suppose i can think that there is, you know, e. U. Sheba says there is a nonjewish scholar, and hires that person, why shouldnt that person count . Mr. Fisher justice kagan, we do not think that the coreligionism is an on office switch. An on off we think it is a strong factor in the column in this case, and it should be an important factor. I think the way that you put it earlier in the argument is whether was not whether the person was not just a member of the member of that faith, but a special person who is the head of stewardship over that congregation or religion. It is a very odd thing to say that somebody who is not even a member of the faith, who may fervently believe in a different faith, is somehow a minister of that religion. Justice, i think that hypothetical is what does a good job of prying apart the two different strands of constitutional law in the First Amendment that are relative. Absolutely, when a school hires a teacher to teach religion to our students, and do it devotional he if you can, that is something of which the school has a very strong preexercise interest in. So they can immediately fire that person if they are not pleased with the way they are teaching the religion. But we do not think that that is an establishment clause question. It is odd to say the government is establishing religion by saying to a school, for positions where you do not care if the person is of your religion, and you hire and fire them for reasons that have nothing to do with religion, you are entitled to categorical immunity to those decisions because of the First Amendment. That seems like an odd conclusion and i think it tells you there is nothing wrong with analysis on the other side. Justice kagan thank you. We havegorsuch so, gone from the fulltime religion teacher to the parttime religion teacher and of the line i am struggling with that you are drawing there is the teachers less you were goingchers to get us here in deciding what is an important enough person in a particular faith and how we avoid that difficulty. Mr. Fisher Justice Gorsuch, let me talk about the parttime hypothetical into the importance in entanglement. On the parttime question, i may not fully understand your hypothetical, but i think that if the school said we have limited funds, teaching religion is important to us but we do not have the funds to hire a fulltime religion teacher, we will just hire a parttime teacher. I think whatever answer you would give to the fulltime religion teacher who taught only religion would also apply to the parttime teacher. If memberssuch what of the congregation believed that all persons are ministers of the faith . Maybe even bishops. And that they are all equally could people of teaching religion, and something that they all wish to do parttime also teaching other subjects while also teaching other subjects . Mr. Fisher if you are talking about that as a labeling exercise, hosannatabor said that that would not be enough. I think that highlights again the real issue in front of the court, it is not whom the religion considers to be its ministers, or even whom the religion considers to be performing its most important religious functions. It is who among employees of religious employers are performing such vital duties to the establishment of the church, that any qualification requirements or any legal enforcement having to do with their rights or qualifications, do not necessarily run i followed the cause clause. I wholeheartedly agree that there is you normas entanglement questions in asking what is important, or even who religions considered to be there minister. I think the problem with the other sides test, you just read the material and they will tell you, it is it very clear the other side, that religious employers sincerely and deeply believe that all of their nurses, all of their teachers, even all of their administrators and janitors are performing religious functions in terms of the mission of that church. So that cannot be the question. So i think the question is the legal question arising from the First Amendment as to who is involved in the establishment of the church, that is the only way to get to immunity. So i think that perhaps the first principled approach or a textured approach helps shed light on the situation and keeps court on the law side of the line. Justice gorsuch you say that we cannot, we shouldnt focus on their silly religious beliefs, but that is what we do elsewhere in the First Amendment jurisprudence, we do not secondguess those sincerely held religious beliefs, so why would we do it here and secondguess who they deem a minister . Mr. Fisher that is my point, you should not secondguess let me be clear, i do not think you should secondguess what religious institutions defined as their own beliefs or values. I do not think you should secondguess whether they believe employees perform religious functions. But that shows that that cannot possibly be the right test. I think that the earlier question pointed that out. So you are exactly right, the courts should stay out of that business. Is thet solution is courts should look at the objective factors outlined in, the things that are more realistic and antidecision of the church as to who to designate as a spiritual leader. And ask the legal question about function and duty through the lens of the establishment clause as a matter of first principles. Think about that for centuries of history, discussed on the other side of the case, there is not once a good example of a person who was not an entitled member of the clergy receiving protection requested today. We think if there was a deeply rooted First Amendment rule that they are describing, there would be thousands of cases, millions of cases because they are talking about expanding who is covered by the exception from primarily people who have objective ministry status, to making them to the minority among a sea of employees. Just teachers alone, who have important religious duties, but we never thought to follow the ministry of exception. Justice gorsuch thank you. Justice kavanaugh thank you. Good afternoon and welcome, mr. Fisher. I want to start with a question that comes from the amicus brief of the milwaukee jewish day school. They say the ninth circuits approach to a more formalistic, or more a directive approach, means Jewish Schools have faired markedly worse. Under that test. Want t i want to get your reaction to that and how we can prevent that. Mr. Fisher i have not seen empirical proof for that statement. We do not see why that would be the case. Remember, the ninth circuit itself harmonized its decision with the seventh circuit case, which dealt with the jewish day school,a nd said even there the teacher had a special training to be teaching in that school. That teacher may well be different. Justice, if i would return you, i know i said this before, but we cite inhat we cite footnote one deal with says the jewish faith so. Justice gorsuch in terms of formulating Justice Kavanaugh in terms of formulating the test, it is enough with the factors, we may have to refine that. If we refined it by adopting Justice Alitos concurrence, what would be the problems, if any, without from your perspective . Mr. Fisher i think the we agree with much of the concurrence. We agree that titles, certainly the moniker minister, but the titles generally should not be determinative. And we agreed that function is important. And we also agree, as i was saying, that what the court ought to do, particularly with titles, is follow the experience of the lower court. Where i depart from the concurrence, and this is my own difficulty understanding it, is the concurrence leaves out all the cases we cited in our brief. So the concurrence on the one hand says we are to be consistent with past law, but then suggests, it has suggestions that perhaps a broader ministerial exception for teachers would be appropriate. So i think the way that we would tell the court Justice Kavanaugh i want to get another question or two in. You mentioned a religious teacher that picks up the handbook and you referring to somebody like that having no training. I guess i would question the training point, there is no way to do this empirically, but my guess is a lot of religious teachers would say my life is my training. How would you respond to that . Mr. Fisher i think i would respond to that by returning to what was the answer when asked, is it enough to be a model or a witness . I think he said no. So i think there is something more than being a model of the faith or using your personal experience, because i do not see how you would distinguish the teachers in this case if that was the proper touchstone from the hundreds of thousands or millions of other employees of religious institutions who are told in their handbooks and contracts, by supervisors, to carry out themselves during work hours according to their faith. Justice kavanaugh thank you. You have a minute or so to wrap up, mr. Fisher. If you would like. Mr. Fisher i think some but he to ask a question. Tothink somebody else wanted ask a question. With no other questions i will return the court to what i think it is important to bear in mind as the overall question in this case, which is when his immunity required and when is it not enough to say, you are entitled to statutory manner to choose your own religion to work for you, and you are also entitled to statutory manner as a free exercise matter to hire and fire and set terms and conditions of employment according to your religious values. We think that the way teachers lay teachers follow on the latter side of the line. It is enough to give the schools in this case and the ability to hire, fire, discipline and otherwise set terms according to the religious values. And it is too much, and it will blow a hole in our civil rights laws and implement laws to say that categorical immunity applies, so schools can pay people different amounts, use race, sex and other characteristics, even when they have nothing to do with the religious values of states. So we asked the court to affirm. Ask the court to affirm. Thank you. Two minutes for rebuttal. Mr. Rassbach thank you. May it please the court, a few points. The proof is in the pudding and we have the putting. The exception has been working well for decades and it has been using the functional consensus, both before and after3 hosannatabor. You look through the yellow brief, we explain that there are other cases where lay teachers have been decided under, under the functional test. Factwould avert to the that the federal government said, there are three buckets, pastors, musicians and teachers. They get decided under the functional consensus all the time. And i would think post hosannatabor there has been a crystallization. By contrast, the respondent test has never been used. There are claims of things like nurse cases, but there have not been nurse cases in four decades editor will not start being a lot now. There is no need to decide the coreligion issue in this case. In this case, they were coreligion, both schools wanted their teachers to be catholic, just like in hosannatabor when there were not people from that same religion. Gap fillersap employed. These teachers are the leaders of their classrooms. The function of teaching the next generation is a, as mr. Fisher conceded. These are the people that will teach the faith to the next generation and if they do not do it, nobody else will. The decision in the framework for hosannatabor deciding delicate churchstate questions. They should not be reversed. Thank you, the case is submitted. The Honorable Court is now adjourned until tomorrow at 10 00. This is the second week of live oral arguments from the nations highest court, 10 cases and all by the end of the week. The justices are continuing to hear arguments by Conference Call and letting the public listen live. The National Constitution center in philadelphia is hosting conversations about todays cases