ok before your clock starts with or start arguing just doesn't come as some surprise to you when you learned if you learned it later on i know mr lewis his father in law is a lawyer of some prominence in phoenix and we've known each other for some time although i wouldn't describe it as frequent social friends i know him and and know of the well as long as you give me a fair shake absolutely positively that's fine your honor  appellant andrew worst it's a wonderful case to take up on appeal there's some great issues i don't know what's troubling you offhand i appreciate your inviting us to your courthouse it's a beautiful place one of the issues that action reasonable accommodations for form and or worse problems but the board case starts out with a discussion that mr boehlert was seeking damages for the  lack of corrective action saying that his reports prompted no corrective action and then the opinion ends up with a discussion of the fact that the jury has to make certain secular judgments about the nature and severity of her of the harassment and what measures if any were taken by the jesuits to prevent or correct the situation well here's the problem that they see whether one likes the ministerial exemption or not they think point of the exemption is we don't go fossicking about churches decisions about how they want their workers working basically brawler it was pretty well accepted and it would have been pretty hard for anybody to argue differently that being sexually assaulted was not part of the work job that wasn't part the job so it's like if they if they took him out and took him outside and beat him with their fists that wasn't part of the job and he probably could have sued for battery here we're talking about by definition i think what we call accommodation accommodation if i understand combination goes right to the heart of what an employer wants an employee to do because a combination means i can't i don't light able to do it the way you want it done and i want you to accommodate me and let it be done differently whether that means i have a assistant or whether that means that i get to do something else we don't have to go there but the point of accommodation is you have to accommodate me and change the way you would rather see it done to accommodate me so that i can do it my way slightly different lenny i'll accomplish the same thing not to worry i don't see why that doesn't go right to the heart of the ministerial exemption i thought that's what the exemption was about i don't think so ok dollar is is always focus of in the context of hiring and firing the amount of money you're going to pay the minister the place the destination where the minister is going to take a close look at the opinion every time they talk about conditions of employment the preceding sentence of the preceding phrase deals with hiring and firing and fundamental choices that really cannot be extricated from religion now they may fire somebody sort of i wouldn't hire you because you tell me you want your ministers to work fifteen hours a day and i have x conditions so i can't work fifteen hours i can only work thirteen hours a day but listen i'm so good in thirteen that i'm as good as anybody at fifteen and i won't hire you because i say what i want my ministers behaving like that's ok it's ok but if i do hire you to do fifteen and then you has i mean they may be actually that's maybe the reason why they're refusing to hire you it may be the reason why they fire you but you can't once you start saying well why did you hire this person you even mediately get into the realm of religion what really do but that's not our case of course no it's not your case in a sense but in but it's a constructive just charged case and perhaps another sign that our case isn't a constructive discharge case either it's started out sort of that way and i say constructive  this head on and said look ok hiring and firing we're not going to touch and i think the reason why quite frankly is that you can come up with any religious reason you want for hiring and firing so why open that can of worms you really trumping right in the middle the first amendment fathers a little bit i want to make this my life i just for this particular activity exactly right that's the point he wanted to stay in it but he was forced out it was a constructive discharge why it wasn't for sexual assault by the way it was for sexual harassment sexually harassed it was it was a sexually harassing environment at work and what i've got now is an environment at work with no recent accommodation not even minor rescheduling was was done for mr work and even though he wanted to continue on with his ministry the methodist church it got so bad that he was forced out he took he took a retirement because there was no other way for him to deal with the situation his health was the senate thing is nobody can conceive of a church  sexual harassment and sexual assault leading perhaps the sexual assault which i think is what he was complaining about that's where it was done if it didn't get there it didn't nobody can see the church where that would be part of the religion could conceivably be connected like you'd be hard to conceive of a church where people are going out and beaten every day although we know that has had occurred in iraq if you want to go to the shia assembly at the last month they beat themselves and employers can make the same argument there's no question about it and but that's going to the whole philosophical argument of whether she can be in a d n a that's another question entirely employers and say the same thing for hire somebody who can't do the job and physical harm as well that's what we're seeking we're not seeking back wages from wages anything related to anything else or not at all i can't give it there's no reason for even asking in the right circuit at least there's a chance that all that applies to this the court's ruling in bali should be extended to employment decisions regarding church ministers but the pollock case itself gives the answer to this question involved this court stated indeed the minist case and stated we cannot conceive how the federal judiciary could determine whether an employment decision concerning minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the constitution forbids us to tread the internal management of the church so bollard makes clear that if the claimant issue involves a church is personnel decision relating to its minister the court cannot investigate without violating the united change the duties he used to perform as a minister for the church in the reasonable accommodation allegation by this minister cannot be viewed as something other than and attack on the church's employment decision of how he as a minister this has nothing to do with the employment decision he's not seeking reinstatement he's not seeking damages for wrongful termination he simply seeking damages for the failure to accommodate his analysis the courts would be delving into the internal management of the church i mean you know at the outset in order to the entitle to relief under the americans disabilities act you have to be qualified individual with a disability i understand that it's more difficult perhaps analytically when it's something like eighty but what changed the nature of the disability what if you were wheelchair bound even if even if you were wheelchair bound regardless of the type of disability that is being purview on whether or not a minister should continue to continue in the church it is the minister as boller states is the lifeblood of the church and by the pursuing constructive discharge just saying during the period of time i was there when the church admits psych performed my minister and duties and things simpler then they refused to accommodate my disability that is  reasonable accommodation question they didn't change the conditions of my job in order to allow me to continue in order to have an obligation to reasonably comedy just a disability either has to be a conscious request on the part of the employee or a conscious recognition on  justification for the decision if made a why we would not allow this minister i would make this change to allow this minister to continue that is effectively and truly a decision on there are some problems developed in the church and there are lawsuits because priests are said to have harassed parishioners so our rules then in vain if you want to be appraised since we understand people have to release tensions you've got to be willing to be personally harassed and you've got to be willing to harass perhaps when you need to the allegation is that the that the church did fail to change the conditions of his employment and terminated the plaintiff and did so with conscious disregard for his rights and and did so despite the fact that they make adjustments to others with either similar or worse conditions both the paragraph seventeen and paragraph eighteen a quite this complaint of the allegation is that the church has consciously opted me out of the ministry the church has consciously sauce to remove me from the ministry and in order to assess the reasonable accommodation into the internal internal management of the church but it's like another example i mean you to take the wheelchair example it's let's say you have a minister hired and the governing body reduce the minister's salary and it's for purely budgetary reasons it is not it is nonetheless a question of internal church management internal church governance you know relating to the minister who is the life of the church that is not a circumstance where the secular court can say you know it is inappropriate for you or the church to make the decision regarding your ministers that we are that you're on how you're going to pay them i guess  of ministry because you can't work as a minister and of the conditions that we have in our in our employment that is completely within the purview of the church economics have something to do with being a church and well you know i think the churches have  in church you know has the freedom to determine you know whether they should be selected whether they should be disliked if under what conditions that minister under what  the free exercise clause of the constitution and again none of those cases are this case right you know here there is no there's no contention that the church wanted the minister to continue there's no there's no contention that this is something other than a request by an employee to change the conditions of his job to allow him to continue and again he was he was actively terminated so i mean all there is no religious justification for what has happened here right out of the book of discipline there's a section here that deals with disability the church acknowledges that accommodations should be made for disabled people the disabled people should be treated fairly and j it said the contrary then you'd be out of court i might be i might be absolute one on my mind you would consider that your case would be over and it said the contrary oh yeah i'm sorry if it's of the country absolutely i'd be out though in other words what courts have to do is is review the church's documents rules regulations instructions say let's see if there's anything in there that goes one way or the other and that sounds a clear than it looks on its face but when you cut to the chase on this and you say well i don't really want i don't really complain about their employment decisions i just want to damage you know this so i don't complain about they're not doing x i just want damages because they didn't do it that seems slightly disingenuous in the american system because our system sort of boils emotional harm and religious harm and physical harm and everything down into dollars at the end of the day well that's part of the system so we had to do so system after so so you're beating them up just as realistically if you get yourself a great big judgment against them as if they were forced to accommodate you right what's the difference well saying i don't know i think i must worry about being a minister there and why are you coming in i just want big damages but i'm not well right i don't think i'm going to get big damages and cases like this it's like our system of justice has to deal in damages and that's what bollard dealt with we can't talk about the hiring we can't talk about the firing but what comes in between the church has to of the exemption entirely i mean why shouldn't churches filed and follow the same rule that every other employer has to follow which the argument in favor of that but that's not what the ministry that's not what the minister of the simpson said before ball it after in the ninth circuit it says something different it says for hiring and firing and decisions that are related to hiring firing the minister of exception is still strong but for what happens in the middle you can't allow a church to treat its ministers different than treats lay employees or anybody else the laws of general at locations that don't hit the religion of the church are what are do apply which gets back to the first move we haven't really talked about a whole lot i mean there's the first free exercise clause we're not there's no here i hope by anybody that the free exercise clause is involved i mean this is does not affect the church's ability to practice religion that anyway what it we're dealing with i sure don't know so if you take one hundred thousand country would follow but it certainly affects their religious mission not directly your honor i mean of course you're robbing peter to pay paul i know that the polls happy about it but the difficulty with it with dollar here is that it says damages and there are permissible right but in this case aren't you aren't you can find in your damages rather severely because as that because essentially you can't claim any damages from the construction destruction absolutely it's not a big but it's i mean you've got you've got a few months  you've got the church are saying well gee whiz you know we're a church minister only staff and we can do anything we want to store is working conditions and form and conditions for the ministers now but always there's no you can't create an environment at work that is all hostile soon oh no i just i think we're now repeating arguments and now you the two of them a wonderful job you really have been setting this up it's a difficult case we appreciate your argument thank you for coming in today and the case just argued will you know we talk about freedom of speech and that it's what makes america great we talk about the need to weeks golds virtues around the world and then we talk about freedom of religion is country in that we all should have the right to exercise our religious beliefs as we believe that and we believe this case is about those issues