may please the court this is the twelve minute to be certified interlocutory peel of the district court's denial and part of a motion to dismiss that made by the archdiocese of chicago in this case involving an admitted minister of the catholic church the issue in the case is the ministerial exception and in particular whether the ministerial exception acts to bar all claims brought under the federal employment discrimination statutes irrespective of what type of employment discrimination claim was brought in this case in particular the claim was a hostile work environment claimed and the one put it issue allegation that the pastor of a roman catholic parish used words to a subordinate minister involving his weight that the subordinate minister found to be offensive and at the outset it's important i think to recognise the context of the dispute it arises soley from words spoken by a superior minister to a subordinate minister concerning a matter of concern to the superior minister about the support of his weight his appearance and therefore his limited the holding to the facts of that that particular setting but it was on the table or the court in limiting its holding distinguished employment discrimination claims from other types of claims the court did say we are not yet reaching whether the ministerial exception applies to other types of claims such as contract claims and tort claims which are both common law claims that do not arise out of the employment relationship of the minister as such and that is the point why is the reason for my assertion stated boldly at the beginning that the minister of exception would bar all employment discrimination claims is that unlike independently standing tort claims and contract claims claims brought under the federal employment discrimination statutes exist solely by virtue of the employment relationship and nothing else is that also sometimes true of contract claims it can be true that there is an employment relationship however the claim exists by virtue of the contract meaning that the parties have voluntarily undertaken legal duties arising from their contract and then if they violate those duties a court can this can analyze whether the claim is just disappear even in those kinds of cases there may be st amendment barriers to the claim proceeding but it would be a case by case analysis the point about the employment discrimination laws is that the federal government has inserted itself into the employment relationship between employers and employees and created rules and obligations and claims that would not exist but for the employment relationship when it come to the employer might be minister yes yes your honor but let's say that an african american man is hired as music director and his supervisor is a picket the supervisor uses racial epithets tells him that a black person has no business in a church hangs a new show over the music directors yes you get the idea the position and she is for billy and physically harassed on a daily basis the exception would still apply in your view well i don't think the ministerial exception would necessarily apply if somebody  noose over a desk that's a threat of physical violence and it would not apply to bar such a claim but it would bar the same claim brought under title seven yes it would yes it would and the reason is this it has to do with the structure of the law the claims brought under saddle seven exists only by virtue of the decision to retain the minister in the st place allowing claims brought under title seven burdens that choice it actually burdens the selection of the minister and although there could be some cases where one might imagine less intrusion into the church as meant management discipline and control of its ministers as a full the as a category of cases allowing those claims to proceed invites that kind of an intrusion the very cases on which have a work place code of conduct or a nondiscrimination policy some churches do and the archdiocese has policies of that nature but as the cases hold the ministerial exception  bill it is a barrier to the court acting and again because the employment at once the conduct that was alleged here consistent with the archdiocese policy i don't know that the archdiocese has a policy regulating the kinds of words a pastor might use to discuss the physical fitness the weight and the condition of a music director however the pastor hierarchy under the hierarchical structure of the catholic church the pastor of the parish does have the hierarch authority to manage discipline and supervise subordinate ministers in the parish as this pastor did here we might not endorse the words he does does the roman catholic church have physical fitness standards for clergy i have no idea what the standards in the seminary are for instance for physical fitness but it really would not be for the court to decide that asking i don't know exist in the history of the roman catholic church i can't answer that question i'm not aware of but that actually that actually is beside the point because the pastor in his own opinion could believe as the hierarchical superior of that parish that he didn't want a music director who is a minister to appear to his congregation looking in a certain fashion or being in a certain physical condition or there is a whole other component to it that the discipline imposed by a superior minister over subordinate can include care for that person can it include corporal punishment no that's an act of violence and the ministerial exception does not apply to claims outside the employment discrimination laws such as battery a tort it's a good example of the distinction so judge schroeder asked you a few minutes ago about a case of  sexually hostile environment which includes unwelcome touching yeah and i think the answer is that an unwelcome touching that is litigated as a battery would proceed on its merits as a tort as a tort however using commandeering the decision to retain a minister as the basis for there even being a claim in the st place would be the violation of the constitution and why the ministerial exception would apply the cases on which the doctrine is built especially do not talk about tangible and intangible employment actions or specifically whether the church's teachings that allow or don't allow the conduct involved they are built on the church minister relationship and the fact that the state has no business interfering with it the manner in which a superior minister interacts with the subordinate minister is not the business of the state and when you are talking about the regulation he says it can be right it can be when it involves behavior or actions that are independent of the church minister relationship i e the employment relationship when it comes to a ministerial employee that is the key distinction nobody is indorsing bad conduct or bad words but what is just a simple in court has to do with whether  court is relying on the decision to make the person the minister as a basis for there even to be a claim in the st place or not number one and number two whether allowing this type of claim to proceed would by necessity involve officious investigation and interference in the church minister relationship which was at the core of holdings like sharon and  address one of the one of the issues that were we need to deal with with respect to the title seven claim here is whether just the litigation of the claim involves excessive entanglement and could you address there was a case some years ago the supreme court decided ohio civil rights commission against even christian schools it was written as a younger abstention case but in the court  found that younger abstention should apply you know since precisely because the the investigation itself of the of the conduct was not thought to be unduly intrusive did worry worry later about the outcome and whether there was a constitutional defense to the outcome so entanglement can happen in different ways the case that would come to my mind to be n l r b versus catholic bishop the challenge is to hold those two cases together  hostile work environment cases would necessitate the sort of investigation that would in fact causes cause excessive gross substantive and procedural entanglement and it has to do with the kinds of things that the court would need to ascertain what is under investigation is the work environment of a roman catholic parish in this case in particular the work environment of a minister in the catholic parish which calls into question all the various aspects of of what the minister is asked to to do and the kind of the kinds of interactions the minister is having it also calls into question what kinds of words in this particular case calls into question what kind of words a supervising pastor is allowed to use in disciplining your correcting subordinate pastor council if if i could i'd like to raise with you what i see a sort of a fundamental institutional issue here the hosanna taber it was the came after decades of litigation in a variety of cases in the district and circuit courts and the court then finally embrace hypotheticals indicate we've got you're asking us for a very bright line rule really where where we haven't even begun to see the variety of claims that might arise so i'm wondering how prudent it would be for us to adopt that at this point at least that bright line rule you're asking for when we can start to hypothesize some pretty horrific situations that we hope would be where but in given the variety of people and religious institutions who knows what we may see  i would have two responses the st is that the reason a bright line rule is justified is where the ministerial exception comes from and what it's based on it's meant to keep the government out of the church minister relationship not just the hiring and firing the beginning in the end but the middle as well which is the management of the minister the discipline of the minister and the problem from my point play my problem well ok i understand the point i mean the problem with employment claims as opposed to independently standing tort and contract claims is that they are they are just into grilli in twining with the employment relationship with the minister it's a place the state has no business being in middle of a vis the supreme court said that where the subject matter of the dispute is the centrally religious  deference has to be to the church in adjudicating the question including the management of one of its ministers that is the basis of mcclure saying that the church minister relationship is what needs to be protected from government interference now if within that relationship a church commit minister that exists independent of the church minister employment relationship as such such that that decision to employ the minister is not burdened but rather the conduct independent of that is tortious is criminal is a breach of a contract that's how you address the parade of horribles that is suggested by the hypotheticals and that is how you still allow people who have been injured to seek some kind of a remedy on the other hand if you have to commandeer the decision to make the person a minister as a basis to even have a claim if you have to use the relationship as an employment relationship with the minister just to be given for there to be a rubric to bring the claim such as in investigating the work environment of a minister to decide if it was hostile when the underlying alleged discriminatory conduct is immunized under the ministerial exception one of the examples from the drove her gave me was imagine you have a racist bigoted supervising minister who does a number of offensive things but on the other hand in the case called young this court dismissed the claims of a united methodist minister who brought race discrimination claims against the united methodist church not that that's a good thing to believe not that it's a good thing to do if it was true but the church actually was intitled to conduct itself in a racist way in its relationship with the minister no one's indorsing that of course but that is because the only basis for the claim was the employment relationship with the minister if some other act like threatening act like adopt a very broad standard for the application of the ministerial exception that was a case where the pro se plaintiff did complain of being humiliated and had been cause emotional distress by the environment by the work environment as part of her  for myself police you're only arguing for recognition of the disability based harassment claim here as opposed to  sex or sexual orientation based hostile environment right now i would like to proceed on the harassment and hostile work and the disability related claims as well as the sex and sexual orientation as well as the sex and sexual orientation the district court dismissed those claims but as as as the whole order is here under appeal i would like to see those claims proceed as well conceivable or possible religious person religious purpose for those words i want to clarify for the court that in the archdiocese answer they denied that those words were spoken they denied that these instances occurred of the alleged  term employment was very short two years and within his st meeting of father data it was noted that his weight was an issue such the father daughter commented that it would be cost prohibitive to insure  insurance on the church's health insurance plans and we would argue style and vironment claim based on disability how should a court distinguish between actions that are genuinely harassing and actions that may have a good pay thanks as for example a supervisor who expresses conservatives about an employee's weight and health well your honor i would argue one that i don't believe the archdiocese in this instance expressed there or the employer the same mantra the apostle expressed concerns and any sort of fashion that was meant to address the issue in terms of direction or trying to attempt to get mr dumped evictions lee as an issue that from which they were directing him cuts for the archdiocese that argue that this was a management issue but i don't think that mr deficits doesn't think that management is harassment and that harassment is management i don't think there synonymous and i think there was no there was no management or controlling efforts it was merely that  eleven of the problems that i have is that habits are practices of counseling or elder and people within the church or within the ministry i can easily imagine that kind of counseling or elder and being firm persuasive offensive threatening the damnation of the eternal soul for example to be harassment and actionable under title seven and i think would depend on the issue itself right ever talking about something that was related to the church you are asking us to decide the sex issue as well yes your honor so what's please answer the question and in terms of same sex marriage i would say that that that that those comments fall into a line where there is a  religious type claim religious purpose for those and i think that's difficult to avoid that the church does have a position as to same sex marriage and so in terms of the type of  direction that you're describing i would think that that was that would be more towards a religious purpose then the disability that are discussed here but mr i think it does go to say that mr dumphy bitch is work environment disability let me try and go on the disability issue how does one distinguish between vigorous counseling to try to get somebody to change his lifestyle  for his own benefit and the benefit of the church and harassment well if there is a requirement for literal fitness as in being fit the church just definitely not pleased at that and and again the issue was present at the time it was but in terms of how to do so i would say that if the employer had tried more traditional means and in addition to harassing behaviors then i would say that that would carry more weight and credibility that they ran the gamut of management of their employ that's some things are what we would consider offensive in any other workplace environment some things were acceptable within the workplace environment i believe that when the actions alleged are only those that are hostile severe pervasive that those actions is whether or not these actions are whether or not a cause of action under these allegations are i don't know exactly what i would the question is here on the cases here on twelve maybe to be with a very broad question in front of us so i appreciate you trying to tie the case pacifically sky thing specifically to the allegations in this case but  we have to look more broadly at those to be frank than i would say to say that someone's weight is going to relet you know and up with eternal damnation i would say that's not to the challenge you face and and i don't mean that in a derogatory sense but just parsing where the line would fall doesn't that speak to why there is the ministerial exception that we're not supposed to get into  in a normal workplace suddenly is when i say normal i don't mind outside the religious context that's that's another thing but the ministerial session speaks to a bright line doesn't yes i believe it does but in was you know a battery had been committed or you know that we talked about a tort situation that that's clear but the hostile work environment which is a multifaceted in many instances that's the ministerial exception is all about that we don't examine it is compelling isn't might be and that's what the ministerial exception is about it's there's a price maybe to be paid for having that but that's court while not even offering a bright line test on what constitutes a minister expressly stated that it wasn't extending that action it's ruling toward these other types of conduct and insofar as mr dump claims are not pertaining in any way those concerns were swayed by that they're not pertaining to any kind of hiring firing compensation assignment those are the elements of management the management is not harassment there  by the words is that what you're saying that we don't have words of counselling we have words of criticism so therefore the criticism falls a long line as opposed to counseling because it's a as i would use them well right it's the words  pretty different than most cases well but counsel for the archdiocese concedes that corporal punishment or battery would be actionable but under the ministerial exception these other issues would not be actual somehow the line is drawn there but i don't see that there's any more or less entanglement in an improper about corporal punishment than there is an inquiry about these words that are spoken that when we're looking into someone's use of corporal punishment in the religious employer employment environment there is an inquiry asked of bad employees working circumstances the same type of thing for me that would take place for this non physical or non threatening so to speak conduct that still in a non religious workplace would be considered actually don't so we would then depose it but say in this case disappear your minister as to what his have the deposition in this prayer says my comments maybe not received well or not well spoken but they're all in and the sense of caring for the inferior minister well what happens and when we get into trying to analyze what the intent was in these situations as against the ministerial exception well i would say that the question should be whether or not the intent was good natured i would say whether or not the intent had some sort of religious purpose if it if yeah so i'm suggesting to you a religious purposes advanced let's say you and i might not find that a compelling answer but it's given in it and in the church doctrine look into whether or not the religious justification is the religion the religious justification provided is not an artifice that it's not subterfuge and so i think that that inquiry would be made in this instance as well w then the ministerial exception would have to be challenged in almost every case as to credibility right if we have a myriad of hostile work environment vignettes that we play out and that the charge is made so defense such that the pleading would be necessary to get to the point of the archdiocese or the defendant in any instance providing an answer no all it has to do is affirm that the person is a minister so all the defense requires in the outside be hostile environment context is simply asserting and then if you know if necessary proving this person it qualifies as a ministerial employee right  ask you about the district judges treatment of the so the title seven claims where the district judge rejected the bright line rule but concluded that in this particular case as i understand sex discrimination claim that the do or the district judge focused on the entanglement issue and i would say discovery management at the district court level would would be able to allow the process of oversight to occur such that if the process of discovery were to tread on matters that were religious in nature or matters pertaining to hiring and firing then we would get outside those lines but in terms of an inquiry as to whether or not the behavior was harassment by its definition we would have to get into motivation that would that the ministerial exception applies to every claim and that really wasn't at the heart of the elisa hernandez case that that was a host a work environment because well your honor it really dealt with constructive discharge there was no allegations of things being said and things that whether or not they had a religious inquiry but in this instance we're not talking about terminations per se we're talking about the conduct that took place between the dates of hiring and terminations and in that instance i would say that a b c hernandez is being use to say that this kind of flame should be barred when in actuality that case doesn't stand for that proposition and i think the archdiocese reliance on it and a specific ruling that adds more confusion i think this this court has the opportunity ruling will have a much less important thank you think that's really clear to a fair amount of questions too so you may have two minutes lisa hernandez quote i was subjected to prolong humiliation in a most ill stress stress of working under an equal and unfair conditions of employment was excluded from management meetings training and information to meetings it's not it's not sexually explicit sexually hostile treatment with a claim wasn't limited to sex sexual harassment but it was she was a pro se plaintiff and she was vague in the way she made her allegations i don't think it's fair to say that no element of our consideration today was here also when it was urine and us and perhaps more importantly in light of the last argument and i quote it is therefore not our role to determine whether the church had a secular or religious reason for the alleged mistreatment of a hernandez i think the entire increase about whether there's a religious justification is beside the point what matters is the identity of the employee as a minister that's what takes the case out of judicial out of the judicial ken regarding the title seven claims and  management of discovery in the in the risks of allowing of entanglement the very you know the deposition of the pastor is your st issue suggests that subjecting the pastor to a deposition on the manner in which he spoke to a subordinate minister about the issue of same sex marriage sexual orientation and almost sexual practices in regard to the church's teaching on those issues scrutinizing his opinions about that and deciding whether and what if what he meant when he said it why he said it how he felt when he said it is exactly the kind of which is to say that the church minister relationship is shielded from government intrusion if a tort a crime a breach of contract occurs independent of the church minister employment relationship it is independently actionable and the  case analysis of whether the st amendment creates barriers to the claim will happen but if the claim is based on the employment of the minister itself as such then the court has crossed a line that is our argument for this court to follow the t