can you just remind me how it decided to apply that to that was actually the first thing i was going to say i have with me to my left susan oxford of the sea i had previously and it's my intention to give five minutes to are my fifteen minutes ok good morning your honor is an and may it please the court the material facts of kristen bill's employment relationship with st james school remain undisputed and yet at the district court below the district court erred by ignoring many of these facts and its finding that kristen bell was a minister for purposes of the ministerial exception and respondents position that the functional consensus test remains relevant received her degree in liberal studies with a teaching credential from california state university dominguez hills after transferring from cal state fresno and el camino college can you can i just interject and cut to the chase for terms of my case law the trend seems pretty clearly to favor applying the ministerial exception whenever a teacher at a religious school has some role in conveying the you know the tenets of the faith and it seems to me if we end up following that trend your client will lose here because she did have some role right because thirty minutes per day or and in addition even the for the secular subject she was involved in trying to incorporate the religious message into the into the lesson right so if that if we were to deem vattel alone sufficient i mean i think you'd have to concede that you would lose her that's what i just want to tease out for you well in response i've got a couple distinctions to your comment one  just to be clear for the record we don't we're not putting forth that these four items considered by the supreme court has annotator are factors we do not we put them up as general considerations questions that the court mass to guide it's an alice into the particular religion wouldn't it help you to consider them factors because they're not satisfied well no i don't want to consider him factors because i believe justice chief justice roberts in his majority opinion he really warned against and i think you see it in the the concurring opinions warned against putting it up to a bright line factor test and i think that's where the justice alito is concurrence kind of plays into that i think overall analyzing it through the lens you have to you have to analyze each case on its merits you have to analyze each case under a totality of the circumstances tast asking questions that are relevant to the particular religion and i think justice alito wanted to highlight the importance of doing so because he highlights in his concurrence that not all religions will consider the phrase minister they may be structured differently they may have different  hierarchial structure to them but i think that's why you have to look at each each case on him on its merits the totality of the circumstances ask these questions if relevant and then beyond that you can ask a few more and  just further in that real quick  danger if that's not alone sufficient to qualify them for the ministerial exception we're going to have cases where somebody is terminated you know as in this case and the response from the school is going to be it's going to have something to do closely to the teachings of the religion right so that's why it just seems like we need a buffer to keep us to keep us as federal courts out of that and that's why i'm just not i think i understand why the trend in the case law is going against you and i'm just trying to get some sense from you how do what would basis do we have for resisting that trend is at least as i see well we would agree it's a trend and for that i'd like to compare it to the scott decision out of the second circuit i believe seventh i apologize in the grass scott decision the particular teacher here was a hebrew and jewish studies teacher that was her title she was brought on by the school for that particular role she evidence to background and resume that really showed she wanted to come on to the school and she had been cheating religious and religious studies for quite some time and it kind of brings back to what i what my second point to your first question there is really this is this is a case about context and i think when you look at the facts you know while certainly she did perform some religious function per day again justice chief justice roberts said you can't put you can't consider that in isolation i think it talked about that when he was analyzing the six circuits decision below how they they put a focus into the non the secular functions of the particular teacher cheryl parish in that particular all said you can't put a stop watch on and you can't consider in isolation so i think if you need to look at it from the totality viewpoint but then also in context this cross scott decision by again comparing her this teacher to if you want to compare it to cheryl parrish if you want to compare to this this case of bar  she was like i said a hebrew and jewish studies teacher our teacher came on her a formal title was she was a fifth grade teacher carried with it no religious connotation no religious meaning for it her background here by comparison even grass scott in that post was an a world shows that her resume experience is not one of religious teaching it shows that she was really brought on and a effort to i believe my client really just was brought on to she just was looking for any job she could get postgraduation and it just had that's all fine and what the and but the job she got was a one she signed an employment agreement for and i'm looking at exhibit one in the deposition it was taken in the first term is the term itself the second is a philosophy sets right out there it says it's understood that the mission of the schools to develop and promote a catholic school faith community within the philosophy of catholic education is implemented at the school and to the doctrines laws and norms of the catholic church all duties and responsibilities of the teacher she'll be performed within this overriding commitment i mean when you talk about whether the seventy two decision when the ministerial exception first came up and i think that's been guiding the circuit court both before and after this hosanna decision and in that case they do talk about when they the issue of what a minute minister is to a church they use the phrase life blood and i think secondly the next line out of that decision says the minister is quote the chief instrument by which the church seeks to fulfill its purpose so i think while certainly if you look on the face of her contract she had some contribution to the church the question that remains is she having a chief contribution is she leaving services if she you know holding herself and i guess that's where it comes back to the one of the hosanna factors or questions however this court would like to consider it is how is she holding herself up for the community if you turn to the record you find that any prayer any prayer in her classroom she wasn't the one leading the prayer there were student leaders leading the prayer and these were student leaders that r t knew the catholic faith is so well in doctrine that the student leaders knew the prayers going into fifth grade and would know them going on to sixth grade and beyond and you look at her role in mass and that's at the record at two two seven two through two thousand and nine and mass the primary role she she says in her deposition was to keep students quiet and in their seats it wasn't to get up there and leave the sacrament it wasn't up there to get up there and lead some kind of worship service as you see and as is the you know the pen decision with a chaplain and that is that one of the very purposes of the ministerial exception to keep the courts particularly federal courts from going in you know examine you know task by task the degree to which various employees may be  a role in what particular role they're playing in the development of the church mission and it seems to me that's part of the exception that's a big part exception it is but again i would come back to i think two answers real quick and that i'd like to reserve the remainder to give to b o c want is that the supreme court i think is open up the door for the inquiry into the particular circumstances and relationship of the employment from the employee to the employer i think you're allowed to ask that question the concern of the supreme court  devolving into a pretext analysis looking beyond that looking at stu the reason why they got rid of her look and going beyond that i don't think the court is is should be asking that question the supreme court has opened up the door i think number to  actually apologize i lost my train of thought there but i would like to just reserve just a brief remainder to for the e e o c unless you have any for the question about what we hear from the u s and we'll give you a little bit of time  appears to be to apply the exception to facts like this in fact there is no case that has applied it no court of appeals case that applied it in facts that are close to this and the seven circuits decision and crosscut is a good illustration of how different the facts were there when the ministerial exception was applied there that the seventh circuit said that it was not going to apply it or it would not apply the the ministerial exception to something that interested in are are you agreeing with the seventh circuit because i thought you might come in and say the seventh circuit decided that he was incorrectly no we're not disagreeing with the seventh circuit what the court said there is although the title of that ms gross got carried  teacher was not itself a religious title the it carried significance so she was a hebrew teacher and she was hired to give integrated instruction using the tao in curriculum that integrated hebrew language instruction with jewish religious studies she was hired because she had experience to that to do that it requires a special certification which she already had and it was her job all day every day it was her full time job to give hebrew instruction integrated with jewish religious studies that distinguishes her very markedly i don't think so at all actually i think it's just like here because it wasn't as though the only religious component of this bills  my concern is that as soon as somebody has those kinds of duties put aside this case we're going to have cases where somebody says hey i was fired because of this or that it's protected by federal law and the response is going to be no we fired you because we were unhappy with the you know the nature of your religious instruction and i may respond to that too there's a second doctor not at issue here but which is at which is at issue in the period decision and currently on appeal  a pretext or is the sincere reason would involve the courts too much in the religion in a religious decision all of the cases that we're looking at here that where the ministerial exception was in dispute are cases where that was not the reason alleged by the employer in st james here the reason they didn't want to continue this bill's employment two reasons she says her students had cluttered desks in her room classroom seemed chaotic and it would be unfair to the students to have two teachers in the same school year they did not say that she wasn't teaching catholic religion properly or infusing and that she got a a positive evaluation on whether she was infusing catholic values into the classroom so i decided allowing this bill to pursue her eighty eight claim case but as i understand the way the ministerial exception works it's pretty much a categorical sort of you know it's going to bubble and once you're in that bubble the courts are not going to intrude and so i don't i don't think our analysis of whether the ministerial exception applies can turn on the specific reason in a in an individual case that the defendant school gave for firing the person can't correct so if that's why it's so important that this court decide this case carefully and on the correct principles and not overly broadly because a person would lose their rights entirely to pursue a federal civil rights that other employees have but the but and in fact or if she has the maybe a claim and actually the employer fired her for not being a good catholic teacher she wus right she was actually in that and and that that involve the court in too much delving into the catholic tradition that would be the ecclesiastical abstention of play exactly the question is is she a minister when the only duties are these religious tasks which are far less than cheryl parrot's was performing for who's on a to bore and if the supreme court thought that that was enough then justice roberts wasted a lot of words and a lot of analysis in covering all of those other factors no i don't think that's fair i mean that they're given the case that they're given it's a much more compelling case i grant you than this one but you rely on all of the tools that you have to work with and you know setting forth the exception of the court did say that is not deciding whether that alone would be enough and i think we could reason and no circuit court since then has looked at a single factor and held that that was an up the seven circuit found two factors the sixth circuit found two factors that this circuit said expressly in kanada that we are looking at the entire circumstances and determined that the music director was an integral part of the sacrament of the mass and that everything that he did in terms of leading the choir training the cantors providing the music selecting the hymns all went to sustain the religious element of that that sacrament of that is saying that there has to be at least a certain number of factors i'm saying that at least what we know is the other circuit cour have have declined to apply it when there was only one factor to found at least two factors in those factors have all shown much further extensive involve when they're really just two factors here no there was a single factor her can say that in the light of that employment agreement the employment agreement requires her to do as i assume the janitor had to do when the secretary had to do in the p e teacher had to do and that is three flecked catholic values in the way you quite significant that the record is clear she did not that teachers did not have to be catholic to be to work at st james and the religious tasks that the school points to every single one of them the school says it required of all its teachers there's no exceptions they do not say they are required only of the catholic teachers and it's quite feasible that that could be done here if you look at what they were doing praying with the students as ms feel said the students led those prayers and they were the reciting prayers of the catholic church they weren't that a religious leader was designing the religious instruction she provided thirty minutes a day was from a workbook she was the instruction carefully workbook the quiz came from the workbook the she accompanied her students to chapel where she kept order and i want to point out there's a couple critical errors in the in st james brief the facts are clear that occasionally beals students presented the eucharistic gifts but st james in its brief at page twenty six mistakenly says that below occasionally gave the gifts and that's not reflected by their own statement of facts if you look at that and st james says that she attended the religious education conference yearly but the record clear it was every other year and it was four to five hours so basically two hours at most are two and a half hours of religious instruction a year on how to integrate catholic values into the classroom but beyond that her religious task s were something that the school required even of non catholic teachers and did not require any exercise of spiritual leadership on her part so i see that i will be on my time i mean if you have more to say  but it's a very difficult his it's very nuanced and we we we appreciate the attention the court is paying because this will be the first case that would find if this court affirms this will be the first time that a court of appeals applies the ministerial exception to an individual who does has such a role a role that is not one of leadership within the church or the war or or pretty much full time ministry and if that's right i mean i may be of the but i'm really i'm sorry i didn't mean to interrupt you well that's true for the court of appeals there are some district court decisions on some that did not go up on appeal who didn't do a whole lot more than just field does in terms of conveying the religion's faith they didn't have the formal title of mr anything comparable and yet that minister exception was held in place of just remind following in the ministerial exception where he selected the hymns that were going to be sung if he was away on vacation he selected them before he left he said that he taught the kantor's how to sing the songs during the mass he led the the  choir and led the choir practices and then he played the music during the services and the church said this the music is a an important integral part of the sacrament of the mass and i think another thing that's very important about that case i could just add the path the defendant in that case argued that everyone who participates in the music of the mask is part of this ministry is performing ministry so that would be the choir members the kantor's and the fifth circuit did not find that the plaintiffs fell within the exception because everyone who performs music did it because he had the leadership role but put correct me on this because it's not i don't think the ministry of exception was limited to those who are leaders of the faith in the sense of shaping the direction that the faith is going to go into the concern is that we don't want to get into it anyone who conveys the message of the faith that's what we want to keep out of right and seems to me  that that's why i would say that any religion any teacher has a religious component to the instruction she's given to her students were already into that territory it doesn't matter if they're not a leader in the sense of you know selecting the  nature of whatever the hymns that were being taught right if if this court were to go that far number one it's a date risk of swallowing the rule let me go i thought you might say the seventh circuit was wrong because if you put aside the seventh circuit i mean aren't most of the cases about leaders so i mean yes yes and and i think the reason is the that we don't don't stand saying the seventh circuit got it wrong is because the hebrew instruction and jewish religious studies were integrated completely and that was her full time job so if she was not being free and she knew she was right and and and so in terms of looking at the hose on a tab or factors and saying there was some point to justice robison roberts opinion that you look at the entire context the totality of circumstances the second circuit said that there is substance behind her title of hebrew teacher she wasn't a teacher who incidentally taught her students a half hour of hebrew instruction every day and then talked in science and math and social studies the rest of the day that was her full time job all day every day and it was infused all day long with the the religion so i was to ask them this question but maybe it is a good question for the u s c it was on a tape or one of the factors was that she had this title that seemed like a minister right she's a lawyer i call the teacher yes and she put on  tax returns that she's a minister and so she took us tax deduction it seems like that is sort of a trade for either a federal employment law applies or it doesn't and if you're going to be a minister then you don't get the protection of federal employment law but if you're not a minister you do get it and it seems like maybe one of the key things here is whether people know whether they're going into a job that's protected or not is that something important i think that's incredibly important because the if this court were to affirm then there are thousands of catholic teachers who would have lost their rights that they would rightly assume before now they would have as compared to their other teachers and other individuals in different professions and so i think  when the supreme court said you look at the title given and the me substance behind the title in part they were looking at not what was hosanna to bore arguing after the lawsuit filed they were looking at what did they say before hand because to the extent hosanna to bore called her a minister and had this special church service where they commissioned her to be a minister that gave some substance to the fact that she was more than just a teacher like the other non called teachers that she had some extra status and i think that that's the element of spiritual leadership and if you look at what sheryl parrot she did in hosanna to bore it is far more extensive than what the teachers at st james are doing which st james says all of its teachers  have the pages in the excerpts of record so you don't have the page they excerpts of record thirty five to forty two there are numerous points where they point out what they were asking this field to do that they allege is religious and the fact that this is what they're requiring all their teachers to do and so there is there's just nothing on the record about whether they ever had a non catholic teacher correct there's nothing i could find in the record on that i thought the head of the school was asked in conjunction with with noting that it's not a requirement but then said but the reality is that all the teachers are gathered at that point at the moment and she was asked about she just they ran through the grades and she said yes those of those individuals have to be catholic ok do you have a concluding point let you go way past yes we are just as this court to take it seriously what the supreme court said about considering all of the factors and look again i didn't get through all of the circuit courts but if you look again carefully at the four circuits beside this court that has already applied the hosanna to bork case you'll see that in every case they were looking at the totality of circumstances there's no to assess circuit court there's applied it to the narrow view of religious tests that are done here seventh circuit case didn't have a leadership role but she was performing this religious instruction all day long so i think there's two ways with and that and especially and she had the special message which was required in the certification and she was hired because of her experience so i think if you're doing it full time that might be one factor and otherwise if you have a leadership role and i also didn't get to but shall perish she gave devotions to her students that are beyond any kind of script that the school was providing to her twice at least twice a year she was designing and leading the worship service including delivering a sermon and i think the fact is they're just farm war ok thank you for participating we really appreciate  kristin beal words hired to teach fifth graders a variety of things including how to become committed caring catholics it was a catholic school it was part of the st james parish one of the parish ministries is a school and this is not unusual many parishes have that and as part of her employment she was employed in sign an employment contract which was signed by her by her principal sister mary margaret and by monsignor myers the pastor of the church must be understood that the mission of the school was to develop and promote a catholic school faith community within the philosophy of catholic education and can i ask you this i mean it seems to me your position has to be this even if the even if the teacher is not a member of the fa and has no discretion whatsoever in terms of selecting what's going to be taught they're just teaching from a workbook that if any component of that instruction that they're giving to their students has is tied up with religious faith than they are going to be covered by the ministerial exception full stop that's your position i said that's that's correct your honor the purpose behind the ministerial exception is to avoid the government from entangling itself in the selection of those who convey and teach the faith every religious school teacher will be under the ministerial exception all right if we agree with you well it depends how you define religious school teacher what i can tell you that in this case the facts clearly damaged straight that means beeld was teaching fifth graders elements of the catholic religion when you look at her lesson plan teacher who's at any religious school who spends five minutes a week probably doing religion is going to have to be covered because other ways we have to draw lines about twenty minutes or fifteen minutes or ten minutes once they're teaching religion at all which probably most religious school teachers do at least at holiday time  well the supreme court stated that you can't use a stopwatch just as a chief justice roberts specifically states that in hosanna so the courts are going to be engaged in a five minute ten minute twenty minute what they are going to look at is what exactly is the instruction and the purpose of the instruction and so in this case again when you look at the lesson plans you look at the evaluations that it is about teaching fifth graders how to become purpose of conveying the faith to students that's maybe one of the reasons i was not in the record one of the reasons why parents send their kids to parish schools certainly if the school's purpose and the teacher's purpose is to teach catholic subjects that person is going to be covered if you if you're someone who has is in this situation she doesn't have like a religious degree she even could have been presbyterian maybe or something  gets this job does she have any reason to believe that she is not covered by the family medical leave act all the regular employment well i'm not sure whether her understanding of what law she might be covered by is necessarily germane to the issue of the ministerial exception maybe it is because if you can be fired for basically if the ministerial exception applies then the church can fire her for any reason no reason whatever no one's ever going to be able to ask right so that's a much less protected job maybe you ask for a higher salary maybe you negotiate differently maybe you look for a different job if people don't know they're entering that bargain how is it how fair well the first amendment has led and the supreme court has established the value judgment that the texan of religious freedom in this case and for the church or the synagogue or the mosque or whatever religious organization that it wants to stay out of who says who  determines or who teaches that and conveys that faith so the first amendment is the value here and i thought they were talking about this talk of the history of the head of the church the head of the church of england i mean we're not talking about twenty thousand jewish day school was not principal of the school in fact in the fratello case the principal of that school was a lady principal of a catholic school and was not certainly a valued member of  the church or a priest or an on the principal case the court said that the principal was really guiding the whole of the whole school and setting the whole religious curriculum and there was a lot of leadership there was some leadership in that case in her her own job her only john was leading others towards christian maturity now as a fifth grade teacher ms ms bial was leading and instructing those fifth graders and as a fifth grade teacher i inherent that she is or could be a mentor for them i mean we all have fifth grade teachers if we're lucky enough to remember them that that may have had an influence on us and so to suggest that a fifth grade teacher  teaching religion to eleventh and twelfth graders is not providing leadership to them and teaching to them and conveying the faith to them i think misunderstands the role of a teacher and in fact the  at seven ten and that it talks about the person who's the messenger teacher of the faith being so important to the church because the church can only survive in there for a year only teaching fifth grade guiding the whole church i mean well she's guiding those fifth graders who become at her job as a fifth grade teacher is to guide those fifth graders to become committed caring catholics is she  determining all catholic doctrine no but if she teach in things about the eucharist about the liturgical year one of her lesson point specifically says that she is teaching quote the students quote to know and understand testified that she preferred having catholics but i think it's very we have to be very careful about suggesting to the church who should be conveying that message whether they need to be catholic or otherwise because now we're making a value judgment about the religion of that teacher and i think that if the church believes that a non catholic or the school believes a non catholic can effectively convey the fact the faith i don't think it's the government's position pursuant to the first amendment to say well no you really need a catholic there and i the the second factor the substance reflected in the title well i think that we do know that that certainly in the hosanna case that there was materials and lesson plan guidance all of which made her the i think that when we're looking the substance behind the title that a fifth grade teacher in of itself who is teaching religion by the fact that she is standing up in front of the classroom and is acting as a person who is teaching that faith inherently has substance behind the title of teacher and i would also add that teacher in the catholic faith is a particular meaning in that catholics many catholics are catholics believe that jesus was a teacher and was called teacher so i don't think that we can necessarily minimize the  is to be to model that role not only model that role but to teach that role and to be the embodiment in the classroom of a nun they know they can't sue and say they get to be the priest right everyone knows that you can't you know are protected by all employment laws if you have a certain kind of category in the church and your claim is a certain kind of leadership but this is like regular employment law that most people think they get family leave they can't be fired for having a disability they could be common i mean maybe there's a reasonable accommodation here that's a whole other thing maybe she wasn't fired for this reason that the whole other thing but you'd be able to fire everyone with diabetes just like you know we don't let anyone have here i mean you could do anything if we give you this exception for every teacher and i don't understand how like  of the plaintiffs that have brought these cases in these other circuits believed presumably that they were subject to the protection employment laws and then learned about the ministerial exception i think that it's also important to remember that this court is held in that claim for illegal harassment for example would not be covered by this that that the termination if there's a termination decision that obviously is covered but i'm not sure what the difference is so if the school here had said we don't give anyone any medical leave this teacher would have been essentially discharged right because she had to take this medical leave so they would have had to fire her they could just constructively discharge her by creating a rule that makes her have to quit it's the same thing as harassing someone if you harass someone and have a an environment that's unsustainable so they quit you have to fire them but they had to quit and i don't understand the difference is it seems to me if you win this case you can harass your teachers all you want to know i think that this court held an elevator that that in that situation in your hypothetical that you've you've suggested that the alleged victim of harassment would have a claim potential claim for illegal harassment they could recover emotional distress damages if they suffered them what they could not do is sue for discrimination they could not sue for wrongful termination but they could sue for any kind of illegal harassment hostile working environment harassment so you know it's before who is on the table and if we agree with you that all these teachers are in this category where they are not covered by the employment laws and i don't really understand how that  because constructive discharge is destructive discharge and you can create an environment whether it's you don't give someone medical leave you don't accommodate them or you harass them all of them are ways of just creating an environment where you've got to quit well i think that with regard to constructive discharge that obviously that is going to be covered by the ministerial exception but i think that there are separate claims for for illegal harassment that would not necessarily raise constructive discharge i so i don't think that that it leaves  all teachers without any sort of remedy whatsoever what it does do is it renders title seven in the a da unconstitutional because it runs afoul of the first amendment and really are you saying that all teachers if for example and there was somebody came in to give an example what if somebody came in strictly to teach physics and to be a grade school football and basketball coach and signed an employment agreement which was identical to the one in this bill sign i think it would be a much harder argument to make that they are covered by the mysterious exception because they are if they're teaching and they may in fact be modeling being a good catholic they're not conveying the faith and that really is at the end of the day what is going on there's a case from oregon i know it's a district court case but that was an exercise science professor ok and that's richer set richardson versus northwest christian university and they were so he was supposed to model christian behavior and infuse christian values in type essentially but there was no religious instruction and that is what is what makes this case clearly fall under the ministerial exception because she wasn't just teaching spanish she was teaching a variety of things and spending every day to speak teaching religion as well as infusing christian values into secular subjects so the issue of the p k peter is obviously not before us but i think that that is a harder case but it's not this one our thank you just very briefly in response i want to come back to the conversation regarding leadership in leadership roles i think there is a clear distinction between if you look at the co case they responded downplayed that role that gentleman the gentleman the gentleman in the connally case had but his title is spiritual director and when the court in that particular case looked at that particular title they found on its face and they they held quote this is one of the clearly religious leadership titles clearly religious leaders have title spiritual director and then on the fourth factor of what that religion so again two factors present there on the fourth factor they found that what th role that he conveyed was in fact to can convey the message of the church the fratello case the principle in that particular matter as stated by the yossi and we just want to reiterate they picked and guided the school overall in the curriculum they picked and they prayed over the loudspeaker every day they had actions in there that conveyed a sense of leadership not just to let's say the twenty two kids in a classroom but to the community how they held themselves out to the church how they held themselves out to the school was that of a leader a church leader guiding the principle of the religious in pen you had a hospital chaplain that was an otter it was a much much more difficult much different case however the title was hospital chaplain what that hospital chaplain did was consult people at their most time of vulnerability but he went throughout the entire hospital and did so and can tot up the music director quote unquote i know the e e o c touched on we do want to reiterate that that music director oversaw the music department's budget and expenditures manage the sound systems at the church maintain the sound equipment music room music area in the that's in the catholic religion jesus christ was a teacher we do know in our footnote to in our reply brief regard if you look at the plain language definition of teacher at most it encompasses a mormon