mr chief justice and may it please the court if separation of church and state means anything at all it must mean that government cannot interfere with the church's decisions about who is authorized to teach its religion in this country is in fact a cli not the province of judges juries or government officials to decide who ought to teach catholic th graders that jesus is the son of god who ought to teach jewish preschoolers what it means to say hero israel the lord your god the lord is one and at bottom that is what these cases are about who controls who teaches the faith to school children under has in the tabor the answer is easy to riches must choose those who quote teach their faith indeed that is one of the most important religious functions for any religious community passing the faith on to the next generation and since the teachers here with the church is primary agents for teaching the catholic faith to th graders teaching them for hours at week much more than parish priest they fall within the ministry of exception immunity respondents would have the court ignore all that substituting a formalistic standard that relies st and foremost on the police title to determine whether the ministerial exception applies that would wrongly elevate form over function and force judges to decide what title sound religious enough to qualify and it would hopelessly entangled church and state unsurprisingly no court has ever adopted respondents titled test respondents arguments give some members of the court deja vu all over again that is because respondents have recycled many of the arguments the court in a mostly rejected eight years ago and who is in the tape or the pretext inquiry notice requirement the idea that freedom of association makes freedom of religion entirely unnecessary all raised in his in a tape are rejected and unanimously eight years later respondents arguments are not anymore convincing in short there is no reason for government to get in the business of teaching religion th circuit should be reversed counseled you say in your briefs that think in this case i don't think that's something you have to address and i don't think that it would personification well i don't i don't have to address it but you do because i asked yes your honor i think on  were functions were they performing and those functions were to teach the faith for hours on end over the course of the week is your argument both with respect to personifying values as a factor and with the other functions that the teachers might perform apply in the case of teachers who are not catholic because many catholic schools hire teachers who  e i don't think it does in a taber rejected the idea that there was a problem with non lutherans teaching lutheran doctrine to lutheran kids at a lutheran school and ultimately religious bodies get to decide who best performs those important religious functions and courts really shouldn't be in the business of nd guessing that i would point the court to some of the briefs for example to stephen weiss temple brief which talks about how difficult it would be for  the religious part of it i think you'd have to you can look at the list of things that this court talked about in hosanna taber teaching preaching as well as the list that was indeed concurrence by justice alito and look at those as a kind of safe harbor in terms of if one of those things is present then it clearly is an important religious function but then if you if you let's say you have something where that the church is where the religious defendant is raising some other thing as an important religious function then i think you probably you would you would have to look to do some like to answer both your questions your honor with respect to who is not covered i think it would include anyone who is not performing important religious functions so for example the janitor and there you have the baltimore hebrew congregation case that we cited in our briefing where the janitor although he did explain what a sicko was to the school children still did not did not want that to he that did not qualify him him as a minister and that was decided under his in the taber i think the same thing would be true of someone who for example is just doing the i t for the company or the school one it would really depend on whether the person the particular person is performing important religious functions if they're just a coach and don't do any kinds of functions and they would not come in under the exception come with in something like the circus situation with the baltimore hebrew congregation case where it's essentially to menace not something that by itself does that i think in reality that's not going to be a very big class of cases because usually if you're getting leading a prayer before the game you're also doing a host of other kinds of activities just prior think that the statute itself provides for religious exemption for hiring the person of a particular religion where that's connected with the carrying on of the religious organizations activities there is also the b f o q the bona fide occupational qualification so i thought this case has to do where a religious organization might dismiss someone on the basis of race or religion or national origin where that isn't related to religio where that isn't related to the carrying on of the religious activity for example a person who's handicapped you know why should the ministers in enough to have the ministerial exemption apply to that kind of thing that is whether a person holds a position of religious leadership or authority though there's different different kinds of evidence that would show that so why do you need more than the well i think it's i think it's because of the establishment clause your honor the you know this is not just the sort of bilateral interaction between the employer on one side and the employee on the other there's also a rd ox that's getting gored here which is the the performance of this important religious function can being the face to her kids that that is a that is a free exercise right that they absolutely have and should have and i don't think that to be at the exception or title seven or any of the other religious sense hiring and firing are clearly covered by the ministerial exception but there are other kinds of religious autonomy doctrines that might come to bear if for example the example you used in our briefing  right it is true your honor that the the if you if the person is teaching is not if the if the bona meaning can you point me to anything in the evidence that the teacher here was acting any differently working from a workbook for her religious class than a teacher does secular school that's my st question my nd question is i think what's being confused here is that you're asking for an exception to a law that's broader than the ministerial exception generally and broader than is necessary to protect the church the two teachers i'd issue here are not claiming that they were fired because the school thought they were teaching religion wrong one says she was fired because she came down with cancer and was fired for a medical condition the other claims it was because of age she had been there for many many years and had been very acceptable to the school and all of a sudden she reaches a certain age and she's fired so you're asking for an exception to the family and medical leave act to wage an hourly laws to all sorts of laws including breach of contract because at least one of the schools here contract with the teacher says they won't discriminate because of the teacher's age disability so you're 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 don't teach it and you haven't explained to me why it's necessary i don't understand what leadership role or pros proselytizing their job number one and their overriding commitment was to teach these kids to become catholic and to believe in the catholic faith so i don't think that i just i'm not sure i agree with the promise of the question list of hypotheticals so i'm hoping that you can answer them in just a few words like basically yes he qualifies no he doesn't qualify so here is the st one math teacher who is told to teach not it would be the mass care who five comes in and you mentioned not at the beginning of your remarks very important pair takes about twenty seconds to say a math teacher who values and infuse instruction with jewish values if it's that alone probably not but it really depends on how the cash is out in action ok i really am asking asking these things alone a nurse at a catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs i think a nurse doing that kind of counseling and prayer may well fall within the exception may well fall within connecting there is ok and employee at a soup kitchen who distributes religious literature and needs grace before a meal my guess is that that would be to minimize under the same kind of  you connection what are we supposed to draw from this well i again i think it's i think we laid it out in our in our briefing and that is what is what is it that this person is doing performing behalf of this religious body what is the what is the function that they're performing on behalf of that body it's not all religious exercise it's a subset of the different kinds of religious exercise that are out there it is the kinds of things that were listed in the alito concurrence it was listed as the sort of verbs that even when some deference is given to a religious organization in a qualified immunity sort of way otherwise you're still asking us to make a judgment between who qualifies as a minister and who does not on the basis of our judgment that their activity respect to the religion is de minimus and i'm just wondering does that pose some problems for you and for your clients and some of these cases i can easily see a school in which t limited to clergy so what do we do about that the next case is going to be a school in which a janitor takes a pledge or the school bus driver or the coach and they all believe sincerely that they are ministers and you're going to have us tell them no your activities are to diminish as well i mean i think this is part of part of the issue with the use of the word minister this is a kind of immunity that really goes to the kind of things that are done at the kinds of things you would never contemplate having a governmental entity do and so therefore you know it's true that they may well be within their faith tradition a minister but the term minister as was explained you have to see it as a subset of the kinds of things that are done on behalf of the religious community that make it distinctive so it's not going to cover the gas station attendant or the bus driver it has to go to those functions that make teachers who teach religious doctrine or teachers perhaps more broadly who teach religious values how would you answer that question which of the two are you looking at yes so i think if i so there's a sort of heuristic here where if it's something that you would start to feel nervous about having in a 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 so i think a number of the questions so far according to the limit as it often happens to women if you were to win this case and so we're thinking about where it would go in and so say the english teacher who sprinkles in references to matthew twenty five feed the hungry or the teacher who talks about art in the vatican where the football coach who says the member are able for every practice game the basketball coach who says our way to victory pray for us those kinds of things are definitely instilling religious values for those people therefore covered or not covered i think that that in most cases it's probably would if it's only that if it's just doing the one thing that's sort of saying grace before meals situation that that could be that that probably would fall outside the exception because it's not it's not at the heart of what they're doing but i don't think that there's actually a whole lot of situations where that is is actually the only thing that such coaches i'm not sure about that i guess the question that justice thomas and justice course are we going to have litigation over what particular students take out of particular coaches or particular  teachers i'm not sure how we do that if you want to win this case and then we go on to the next because i think that the i think that you're limiting principle is looking at you know what was laid out in the tabor it's not just you know the important religious functions are not just any religious exercise but they're sort of a subset of religious functions that the person is performing as the agent of the religious community and that that's you know the main part of their job so it can't be something where it's it's just you know something that you you know you have the physics teacher that has a crucifix on the wall that's one thing if you have the physics teacher who adds a sermonette to every single class that's a different one and that is  nd in the th circuit an employer must check off one or more formalities even if an employee's religious function is clear and rd and respondents used this court to go even further and make formalities the key would function serving just a check the st approach is the right one the touchstone of the ministerial exception should be whether an employee performs important religious function at because function reflects the st amendment in terms of state and because what emphasis you should put on one of those factors religious function and what emphasis on a different one the ministerial title i guess in addressing that question i'd like to repeat justice course which is question  you is a representative of the government how is a court supposed to determine what is a significant religious function and what isn't in significant one well mr chief justice with respect to the st part of your elaboration in justice alito and current and we're talking about things like preaching teaching worship leadership and ritual you have a pretty defined that we think would cover the mind run of cases in the area we're not going to be in excess of twenty indeterminant analysis just to underscore that this is a concept that has been around in the lower court since the nine hundred and eighty and so again it's not something that we're invented inventing here or that these cour for example with a chemistry teacher who starts class with a hail mary or the theology teacher or the chemistry teacher who's a nun who starts classed with the chemistry class where the hell the teacher who teaches religion but does it in a very straightforward objective way i would you handle those i don't see how what standards a secular person's job if that job is in one of your hypothetical teaching religion and of course the answer is yes if that job is teaching something secularly and we're talking about one prayer then the the answer may not be yes but if i  could give the court some comfort on this there really have been three main sockets for occurring claims then so can the taper and that's pending principals and teachers of religious schools worship musicians and leaders of religious congregation those are the ministerial exception claims that we see again and again and we think all of those would be resolved or at least this would set a clear path forward if it were to adopt a function focused approach know what is covered we're simply asking for the same thing that this court decided and how it's going to taper and the court there specifically didn't decide whether things like retaliation for sexual abuse reporting would be covered what it did decide was that employment discrimination claims involved hiring or firing of an employee necessarily go to a religious organization ability to control who ministers the faithful and those claims are categorically preclude that we would apply the same rule here and then the question is what's the appropriate methodology for determining that a person is one who ministers to the faithful having cancer has nothing to do with the fulfillment of how religious employment discrimination claims relating to hiring and firing also have to be covered my point is merely that the court appointed does not mean that in hugs and paper and we think that it could continue to do so here and it would be the same if what was reported is a principal of the school system some of those could come in but we think the better approach to a piecemeal why maybe some of those things would be covered by the ministerial exception but we think the better approach is to continue to do what this court did and are going to taper and say we don't need to buy those sort religion there is a b f o q and there is the bridges exemption and taken together where the organization does something related to religion and that's why they dismissed the person they're likely to win if the case is brought in the st place we're talking about the kinds of things anyway that justice ginsburg raised that's the kind of thing should there be an immunity there and i think the court has previously decided yes there should be when the person is a minister because in that situation you don't even get into a court don't even get into it so who falls within the minister no i can say easily a person of leadership or authority that's not going to help that much so when you take your categorical approach minister personal leadership  leaders of the congregation it applies to other employees who preach their beliefs teach their faith and carry out their mission and we think that at a minimum those teaching the faith during the week to school children and not just those preaching the faith on the weekend to adult are included within that category and then when we're talking about what it means to carry out their religions mission and when we think that there are other categories of them healthily laid out by justice leaders and c like worship leadership and rituals that would also come in what why if it's a plain teacher and teaches religion to why is it necessary to keep out of it entirely even if that teacher or whoever administrator is does discriminate on the basis of a handicap because one feels need for the vision if somebody is performing an important religious function and there's a court that in her van getting into why they were dismissed misses the point because at that point the religious organization would be capable of deciding who is going to minister to the people who is going to fill that role of teaching catholic school children that illustrating whether one performs an important religious and i think to do the opposite to require a title as sort of a separate checkbox that needs to be picked off is going to create a real problem in terms of neutrality among religious and some faith those sorts of formalities some faith down i think a particularly salient example is that the lutheran church in hosanna tabor had available to it things like called teachers and commissioned ministers and those types of non ordained minister ariel sounding titles just aren't used by a lot of faith in particular the office m k t of them and others and so that's why we think th people who do exactly the same thing in two different religiously affiliated schools but one has a title and the other one doesn't have a title other than the understand based on the fact whether someone doesn't fact play an important role in to function and if the religion that we know gives out titles for different religious functions then perhaps that can shed some light on the sotomayor counsel in your brief you're encouraging us not just to define who is a minister by important religious function but you're asking us to defer to the religious organizations determination of what's an important religious function that's a recipe for saying the teacher who says a prayer at the beginning of a class every teacher whether it's a vast teacher a computer teacher a chim teacher there and doing an important religious function because all that all the school has to say is that's important to us number one number two i've thought what posada our prior case was recognizing is that when you're talking about a leader a a person who stewart a religion that they are entitled to this absolution you are now absolution from liability and law you are now suggesting that we as judges have an obligation to expand the exemption that we've created in law i thought that was always congress who would do that not us as justice prior indicated they've already done it you're asking  us to to broaden that to anyone who does who's job is not primarily religious in any way and for decades the lower courts most of them have not used any of the tests all  you are proposing that if you use the primarily religious not not important but primarily religious functions and i don't think that lay teachers who are hired as late she chairs not as religious teachers it's hard to see how they qualify as primarily religious leaders are part of my are on your st question i want to be very clear when we're talking about their furring to religious organization we think this court has already outlined sort of objective lee what would be considered the class of important religious functions and the deference we're talking about are in those rare cases where there's something about whether on actually perform as there is a case where there was a question whether an organ is important to worship whether a hebrew teacher and a jewish school is important to teaching jewish faith things of that nature on your nd question we agree that the ministerial exception applies to based on what you do or on what you are called and misread or i was struck by the emphasis that your grief gaev to the idea that it was not important whether role about how to propagate the faith and if a position can be filled by any other person not by a member of the faith isn't that a pretty good sign that the employee doesn't have that special role within the functions and how much of the creed of that religion you need to share perform that function and nd is that this is a really entangling inquiry to engage and practice and the rd is that the result is going to have a disproportionate effect on minority religion and i don't i want to be clear that these are not abstract question one of the schools in the piece for example that it preferred catholic teachers but it would make exceptions  certain other promised and religions like lutheran i don't know how to whether to consider that you know herschel coreligionists requirement i don't know whether that's different from a reformed jewish school that would hire an orthodox jewish teacher and i don't think that that's a road that the court wants to go down not go down particularly if it has concerns about other potentially entangling our analysis in some of your answers you've and when you take full of those things away and you're just left with those terms preaching and teaching and that's when you get into all the tricky questions like how much preaching tell much teachin of what kind any any prayer that you say during the day any amount of teaching and so how would we deal with that again i think the way to deal with that is by understanding there could be a baseline here that the religious  plaintiff's religious belief is or how central it is to their faith we protect any sincerely held religious beliefs precisely because we're afraid about entangling courts making religious judgments and discriminating against minority religions that may have views about what's important that are on usually or different from our here however it seems to me instead of pursuing that line of argument and suggesting that sincerely held religious belief about who is a minister should control you're asking this court to involve itself in deciding for itself who isn't was not important minister or just a dem in a miss i think is the words you used person in the teaching of religion doesn't that create just exactly the sort of entanglement problems that we've tried to avoid elsewhere and discriminate potentially against minority religions that may have different views of ministers and that you or i may have and you you reject all these deferential approach is the reason for councils moved to do and that's the ministerial exception is really a legal term of art and some different religions may have different views on who constitute a minister under that particular faith but that's not necessarily going to map on for the year that this court has said have to be left to a religious organization and so we don't think that there is any way to entirely expert hate yourself for around this problem and so then the question just becomes what is the methodology and it and worry is the terminating among religion and disadvantaging minority religion and that's a significantly greater worry if we're talking about things like angle and training that discriminates in favor of majority conceptions about religious doctrine and teaching why couldn't we just simply say that sincerely held religious belief about it was a ministry control just like we do everywhere else in the st amendment and refer to those who ministering to the faithful or on a private charge and we don't think that's necessarily going to map onto the particular definition of a minister that one organization may use and of faith and of course looking ahead if you do your side were to prevail in this case to the future cases what is teaching the faith mean similar question that i asked your colleague about instilling religious values not just teaching specific doctrine you know a school could have a creed of instilling the value of being a person for other and all its students and all the teachers and coaches are told to underscore that message and how they go about instructing or coaching the students that's the religious value and they're all told to to pursue that in different ways how do we  so i think those cases are obviously going to be more difficult it's a heartland case when you're talking about the formal teaching of religious doctrine on a daily or near daily basis as we have here and as the court has and hug and favor if we're talking about something that looks more like modeling that's made you think you're going to have to do a more context specific analysis about whether in cracked in this particular position and is expected to transmit eight through that way i certainly wouldn't say that categorically those individuals are either out or in it will depend on what that means in practice i just want to underscore here that the th circuit's decision is really that outlier decision so with respect to all of  please the court i think the st half of the argument has illustrated them irate problems with the important religious function test this proposed on the other side both in terms of consequences for example mr readily admitted that all nurses in catholic hospitals for example would be covered and in terms of theory is just as gorsuch question it's illustrated so i think i want to focus on the narrower argument in this case that i hear the schools in the government making which is that these particular teachers should be considered ministers even though they did not have to be catholic to have their job simply because their job included teaching religion and our position is of course to reject this contention for three reasons st the schools argument would strip more than three hundred thousand dollars lay teachers in religious schools across the country of basic employment law protections and necessarily included in this number are teachers who teach so called secular classes this is been a focus of a lot of questioning this morning so i want to emphasize this the court itself and catholic bishop in many cases has said in no uncertain terms that there's 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 in fact a school zone amaechi from the u s conference of catholic bishops to the american jewish committee in there because priests are absolute pains to underscore this reality they emphasize that quote all teachers in religious schools and use their instruction with religious doctrine regardless of whether they teach quote religious or secular subjects such as math and science and if you in the concrete example of the courses offered already i think make this readily apparent but let me give you a couple more imagine that english teacher who teaches rhetoric using the sermon on the mount or the history teacher who during passover describes the exodus from egypt who explores divine will through lincoln used all teachers or religious schools are in play in this case necessarily there's an occasion i think it's fair to describe your position compared to your friends on the other side as more formalistic in using that word in a non majority of sense much more focused on titles i would think than rather not performing religious functions and my concern is it was one raised by concurring opinion in which on a table or is that different faiths put different stock in titles and some that are more hierarchical they're important and others they're not and the nd concern is that that's pretty manipula e you know if you want broad protection you just start handing out titles to everybody and then they would be covered i'd like your reaction to that thank you mr chief justice just what our position is to be absolutely clear as the court  adhere to the multi factor framework that hosanna tabor laid adult which starts with what we would call objective factors yes one of the factors is the formal title of the individual but also things like the individual's training whether the individual had to be of the same religion etc we think are good places for courts to start because the court has mentioned the entanglement problems here are extraordinary once a court turns to assessing religious doctrine and what is important in one how religious values come into justice you asked also about manipulation i think you've actually had a little bit of a case study in the last eight years since hosanna taber was announced and what you see in the guides that we cited pages thirty five to thirty seven of our brief  religious employers looking to play same broad protection of the ministerial exception are being told to put things into their hand books about the importance of the religious functions of the employees and to assign them daily prayer activities you know like they're not being given special titles and the like and we think the reason why is the title been felt even on their own terms are meaningful things you can look across all sectors of american society including churches to see that but again mr chief justice we wouldn't rely question was exactly what these teachers were doing the violation if they did it in a public school be in violation of the establishment clause if they did it in the public schools well justice thomas i think there's a yes or no answer to that i think some of the religious teachings might step over the line but of course it's commonplace for religion to be taught in public schools let me let me clarify one thing that came up in the st half of the argument with mr rostock for example about teaching devotionally in a religious school the document lay catholic lay teachers in catholic schools which is cited in the other side's amicus briefs as kind of the touch point for what it means to teach catholicism as a lay person tells catholic teachers that when they're even when they're in public schools they should teach devotionally so it's not simply the idea that capek person is supposed to be a witness of the faith or even try to persuade other people to  that's what i mean just loves to not sort of the minimal performance of their duty but the sort of their standard week to week performance what could they do that the local public schools i think justice thomas the answer that  is you know the prayer and worship with step over the line but i don't think that tells you anything meaningful for in terms of what a minister is because if prayer and worship are enough then you have not just the football coach or the administrator who gives the morning prayer over the loudspeaker in school but you have the nurtured nurses in catholic hospitals you have the teenagers at summer camp to our camp counselors who lead their counsel and other campers in a prayer every night so prayer is one thing to look  considered religious and not for free exercise protection when done in the parochial school which is thomas i wholeheartedly agree that free exercise protection is available in this case and i want to make it clear  that any religious reason for firing these teachers or for otherwise regulating the teachers would be entitled to the highest free exercise protection but what the other side needs to prove is that there is an establishment clause violation in this case with going forward and we think that is something that requires more than simply leading people in prayer or the like it requires being a leader in the church it requires not just being a member but a person in whom the stewardship of the congregation has been placed and that's what raises the you determine that especially when we look at these nonhierarchical religions that do not use priesthood for pastors and that sort of the designation well i think  thomas the best way to do that and in a religion that didn't use the kind of titles that the catholic church and the lutheran church use would be how to do it judge wilkinson did in the rayburn case which is to say that if the person is performing all of the same things as good as as what would typically come with a title and that may well be quite relevant and i hasten to add i just don't want to give the appearance that our test live simply on title the play when you deal with a religious leader or the head of a congregation or the like even  i think that will be true some quite often justice ginsburg said i think the rayburn case is a very good example in that respect which is of course the foundational case for the concept of ministerial exception one of the thing i'd like to add which is i think it is correct and we agree with the premise that different religions ought to be treated equally but there's nothing i don't think that should require the court therefore to have all people who are performing exactly the same functions across all religions between treated the same and if i could offer a rough analogy think about the th amendment community that applies state different states structure their own government differently they have different forms of administrative bodies some have much bigger administrative bod than others and so different people in different states that perform roughly the same thing are sometimes going to get th and sometimes going to trigger th amendment immunity and sometimes they're not we wouldn't say therefore that we're treating those states on equally we would say we're respecting the students those choice those schools i'm sorry those states have made and so to hear i think part of respecting religion and staying out of religion is respecting the ex ante decisions that are churches themselves make ginsburg i don't want to give that impression at all we think that is actually the center of the case in terms of how this court just think about it and the health of an exabyte they would just as priors questions it's not just that there's a exemption in the statutes for hiring people of the same face it said any time a religion or any time a religious employer wants to hire and fire or take other employment actions for religious reasons the statutes themselves let them do that and if in a for some reason even then the statute doesn't give them what they want they can raise the free exercise clause so the only place the ministerial exception really matters is in a case where the religion is not acting for religious reasons and so that's this case i think is  said with ms the old and her cancer treatments and with morsi baroud being fired simply because she alleges she got too old is that those are the cases where the ministerial exception matters and maybe this is the way i would say stripped of all the labels i think which can make the case sound more complicated than it is i think the best way to think about this case is to say when does a church require or sorry i should say a religious employer requiring absolute categorical immunity to hire and fire people for whatever reason they want whether it be a race discrimination whether it be any any other thing that does having to do with their religion and went on the other hand is that enough with respect to an employee to say of course you have an important stake in how they perform their religious functions and duties and if you have a problem with federal law to fire them or discipline them or anything else but you can you just simply can't do it for non religious reasons and our submission here to nd just to finish that thought is we think when it comes to lay teachers the three hundred thousand lay teachers in catholic schools and other religious schools across the country not to mention the one or two hundred thousand more teachers in religious universities and colleges that we think when you talk about those people that is enough to serve their religions legitimate interests to say if you have a problem with how they're teaching religion or how they are otherwise upholding them to themselves in light of your faith you can hire or fire them but you can't say we don't care when you come in whether you are of our religion and we don't care when we fired you about anything to do with religion that we still get immunity we think that's a bridge too far religion that we will not even look at this defendant committed a violation of a statute that has nothing to do with religion justice ginsburg went on about that all right that's what the case does know taber who are those people and we called the ministers but they were put people in positions of leadership or authority you know some religions everyone has that kind of position all the religions you know some religions think people without education are the ones to be the ministers others might think that's education given that circumstance and the desire not to have us meddle too much and to keep the religion independent what advice can you give us what should we know like any parent i can and you know we could start by saying leadership or authority but what else can we write that will allow or what what should we write to say guide to lower court so they don't meddle too much just aspire let me answer that and st in terms of theory and nd in terms of the experience in the courts for the past several decades in terms of spirit i think you're absolutely right to be concerned about entanglement and that's why we say the st thing you should write is the same thing you wrote at the beginning of important religious function is and if that were the sole test i respectfully submit you're going to have just impossible entanglement problems even they should concede the janitor make maybe the administrator although that has been just argued by other religious institutions in the past but they seem to concede it so there's going to have to be a line drawn in the ways what's the best path forward and so let me then tell you in terms of practical terms what i think is important which is before has annotator is the court and the concurrence  stressed there have been several decades of the ministerial exception in the lower courts the position we're advocating today is consistent with the overwhelming weight of that authority so i can not only give you my theory today but i can lend you the practical assurance that for several decades in the lower courts and this all these are all gathered in footnote one of our red briefs the court has consistently held that lay teachers in religious schools even if they spot some religion outside of  that line was durable and workable and indeed the federal government brought many of those cases in establish that rule and have that rule across several administrations for many decades so it's a little bit like the maui case justice briar you have a hard line to draw but you can take some comfort with decades of experience in the reports and the government's own position that prevailed until the moment of this case right now so i think that actually should help bolster my position just in practical terms because if you're right in the pinion that says all important religious functions trigger the ministerial exception i don't think there's just any way to escape you're going to have the cases with the nurses you're going to have the cases with the football coaches you're going to have the cases with the come summer counselors the only thing the other side says to that in our brief is well those cases haven't been brought so much but my answer to that is that just shows how revolutionary their taste would be because there's nobody answer to those cases and mr ross talk himsel morning that nurses would be covered we've found several cases recently where nurses brought employment discrimination cases that were even when the children wasn't even raised in those cases it's now you're talking about hundreds of thousands of nurses being stripped of their employment sions and this is the last thing i'd say in terms of practical consequences remember that we're not just talking about employment discrimination laws here i know hosanna taber taylor the opinion that weighs in this render properly said but lower courts have said that the teachers have to have a certain amount of education or training or they have to have certain criminal background checks or the like i don't see how you can uphold the constitution now that any of those laws are requirements under the other side test which the theory is that for all the teachers in catholic schools or other religious schools who are teaching religion the government can have nothing to do with what reasons both before are hired or fired for what  this issue can come up and many many many different contexts as the question this morning has brought out but what is before us is a very specific case or rather two very specific someone of cases and it has to do with teachers and a religiously affiliated elementary school so i suppose these teachers taught in a secondary school and they taught with your assumption in that hypothetical that they that those teachers have no other condition of ministerial status that they don't have any special training or title or the like well they have so they have the training that the school things is sufficient and they are not labeled been a start do you appreciate that the very term minister that treats different religions differently it is a predominantly christian protestant term and as you apply it to other religions it becomes its application becomes less and less clear so they do one thing they teach religion and they have the title of teacher of religion in a catholic school alito i think it is the reason i ask an apologia does it i think it's going to be an uncommonly situation where that person is going to have no other formal and disha of ministerial status but if you had that sort of a case  sorry i'm sorry if you had that sort of a case we think that a person would probably not be a minister still but you don't have to decide that here out why would a person not be a minister the person wouldn't be administered in that case because i think at least arguably because even then the person would not be assuming a person place the position of spiritual leadership of the congregation and we think that's what the core of the ministerial exception is about and justice alito may be upheld widely the core of  that i would be more comfortable if we just moved the whole term ministerial exception because i do think it's discriminatory but why is there less of a religious autonomy issue and why is there not a very central religious autonomy issue there the function of teaching a religion to new generations is central justice alito i don't deny that for one minute and i think that is why the school had every of every ability to make free exercise arguments because of the in absolute control of the of that function but remember and i'm happy to jettison the ministerial exception label what we're really talking about here is when are the schools or when are religious employers  think of as the edge case which is a case where somebody teaches religion full time and has their job but doesn't have any other minister ariel sharon that arabian's and what is the fundamental difference between that situation as the situation of an elementary school teacher who teaches everything including religion and for a school that is set up by a religious body the teaching of religion is central that is why that's the very reason why the schools are set up otherwise there would be no reason those students could go to the to the public school and not have to pay any tuitions so it's central to their mission and the fact that it is done in an elementary school by one teacher who teaches everything including religion why should that make a difference whether it's structured that way or it's structured as it might be in a secondary school i think the difference just as alito is when somebody teaches only religion and nothing else the stature is as more of an expert on the faith and a preacher of the faith when you have somebody who is a general curriculum teacher and who just happens to pick up the workbook for forty minutes a day and teach religion during that segment of the day that person isn't seen i don't think has as holding the same degree of positioned in in the church hierarchy and turn it into in the church leadership and remember justice alito i don't think there's any possible way to distinguish the general curriculum teacher who teaches religion forty minutes a day from the science teacher the history teacher the english teacher who probably once you tally up the number of minutes in that day where religion comes into play it's eating at least forty minutes worth of religion if not even more so just in terms of consequences justice alito you take a step from a very small group of teachers in schools to hundreds of thousands of teachers and k through twelve across the country one may hundreds of thousands more you may or may not take that step but three that those other teachers are not an issue here what is an issue  exactly is an elementary school teacher who teaches religion as well as other things well just in terms of numbers i think even there you had i think about one hundred and fifty thousand teachers in front of you in this case that as a lower colleges brief says all these groups are on the other side of the case of mine from me but all stressed there is no way to distinguish somebody who teaches a secular subject with religion fused with somebody who teaches as my client in this case spent teaching religion that that didn't qualify her as a minister it's now she said something misread or said something that has taken me by surprise which is she seems to be saying that the th circuit got this particular case wrong because they were using labels as talismanic did you understand that argument and if you do why is she wrong well i think just in terms of what the th circuit did the court was it was clear to say that we're not simply resting this on the absence of the label minister of overlooking it all the circuit distinguish that case but more generally as i said the th circuit outcome here was not just what the government asked for it's what the government itself asked for for decades going all the way back to the president reagan's administration is that la teachers who teach some religion are on one side of the scale and other people who are th spiritual leaders in seminary schools and the like are on the other hand on the other side of the scale so it really is a sea change even  teacher is leaving everything else aside it is truly a sea change that is being requested by the other side here today in terms of how teachers and schools are classified and whether they have any employment rights at all or in fact whether you follow the way the consistent with our test rayburn did as it dealt with a case where a person applied for a position called a pat pastoral care position and even though the woman in that case who applied for the position didn't have a ministerial title but judge wilkinson said it is because of the way this church is structured at the th day adventists doesn't give women ordain titles that cannot be determinative and we agree with that we say that function should be a cross check function should be part of the analysis to make sure they are not disadvantaging minority religions or otherwise being too formalistic in the analysis so we agree with what judge wilkinson said i think what might be the disconnect between what you're hearing from the different parties in this case is it's true that the other side can pull quotes out of re born in port quotes out of cases both before and after hosea taber that say function should be what controls but i think what you find if you look at all of those cases is those are all cases where the really truly was an extension will circumstances at play where there were special reasons like an rayburn wide of the more objective factors didn't provide the right answer and again we agreed that then function  does does have an enhanced role in that circumstance but another way to answer the question just so my orders to say remember we're asking for what the lower courts have done on the ground just make it concrete and say what we're late teachers status for the decade up to even after hosanna taber and they status was non ministers and there's no way to reconcile those holdings those concrete holdings with the other side's view that st of all controlling inquiry is whether somebody performs any important religious functions and secondly what the government and now petitioners themselves say which is you defer to the religious employers themselves as to that question if bad were the real test you would have millions of people falling within the ministerial exception and i don't see how you can make any sense of what the lower courts have done for decades if that were the test teaching religious doctrine teaching religious practice teaching religious texts any of those things i would have thought that taber even though it has a thing about commission and title and so forth  you know each of those people whose job it is to teach religion and to basically bring up the next generation in important understanding to religious doctrine and practice but those people would be covered but you said no and i saw i want to just sort of say why justice kagan i think what i said is i think that it's the hardest case for me that's the edge case and i can make arguments both ways that i really wouldn't have to win here i think what i really want to do is persuade you that those people are different from the lay teachers that i represent here but just so you know 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 faith to perform that job i think that a person you can still question whether the person is central to the establishment of religion remember i think there would be a very strong free exercise interest in play there but that particular person i don't think is involved with establishing the church but as a justice kagan i freely admit you can disagree with me on the ass and draw the line between people who teach religion full time and people who are otherwise lady teachers teaching a general curriculum or teaching a secular subject with religion infused well where do we draw that line then i mean suppose that i think that full time college and teacher is is protected by this exemption then i think justice alito raises a fair point here it's like well in an elementary school maybe you have to teach some other subjects to do so maybe it's a half time religious teacher or maybe it's a quarter time and where do we draw that line i think  up pretty well justice kagan just in terms of just the basic idea that somebody's teaching religion all day is going to be different than somebody teaching it just for a small part of the day as part of a general curriculum and maybe this is a way to think about a justice kagan the th even if you strip away all the other objective factors the school is going to hire somebody under slightly different criteria and with a different idea in mind to be a religion teacher in a school compared to somebody who's going to be the general curriculum teacher so yes religion in a catholic school or other religious school maybe critically important but just fly science and math and all the other subjects  the school isn't necessarily going to think that this person needs to be a leader in an expert in that field to hold the position and what is the question of whether that person is a member of the faith and you know as i suggested to by the emphasis that they put on that but on the other hand i suppose i can think of there is there it you know it even says that there's a non jewish great thomas scholar and and and hires that person why shouldn't that person count because of kagan we do not think the coach religionism is an on off switch we just think it's a very very strong objective factor in our column in this case and that ought to be an important objective factor the way to kind of paper put it i think the way you put it earlier in the argument was whether peart somebody was not just a member of the faith but a special person within the membership of the faith hoot who is that has a stewar p over that congregation for that religion and it's just a very very odd thing to say to somebody who is not even a member of the faith and may fervently believe in a different faith is somehow a minister of that religion and justice kagan i think that hypothetical is what really does a good job of prying apart two different strands of constitutional law in the st amendment that are relevant here absolutely when a school hires a teacher to say teach religion to our students and they didn't do it devotional if you  can that is something i put in which the school has very very strong free exercise interest in and so they can immediately fire that person if they're not pleased with the way the person is teaching their religion or anything else but we just don't think that's an establishment clause question it's a very odd thing say the government is establishing religion by saying to a school for positions where you don't even care where the person is of your religion and you hire and fire them for reasons that have nothing to do with your religion you're entitled to carol munity for those decisions because of the st amendment that just seems like an odd conclusion and i think tells you there's something wrong with the analysis on the other side thank  council so we've gone from the full time religion teacher to the part timer the gym teacher in the line that i'm trying to i'm struggling with that you're drawing there is a part time teachers less important but what if the school can't afford one a full time teacher may be thinking only for a part time teacher you mention that you thought it important that they be part of the faith but then you drew from that a bit recognizing that talk st about the part time hypothetical and and the importance and entanglement on the part time question i don't fully understand your hypothetical but i but i but i think that if a school said we're limited funds  religion in our school very important to us but we don't have the funds to hire a full time religion teacher we're just going to hire a part time teacher i think that whatever answer you would give to the full time religion teacher who taught only religion would also apply to the  that what if what if the members of the congregation believe that all persons are ministers of the faith bishops maybe even and that they are all equally capable of teaching religion data that that would not be enough and i think that just to get highlights real issue in front of a court 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's who among employees or religious employers are performing such 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 would necessarily want to fell the establishment clause and i think if we just get away from labels i wholeheartedly agree there are enormous and angle to questions and asking what is important or or even who who religion consider to be their minister i think the very problem with the other side's test if you can you just read the materials that we cite and they will tell you it is very clear that the other that 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 important religious functions in terms of the religious mission of that church and so that can't be the question and so i think the question is the legal question arising from the st amendment as to who is involved with the establishment of the church that's the only way you can get to a community and so i think perhaps a predicate st principles approach or even that textual approach a be clear here i don't think you should nd guess what religious institutions define as their own religious beliefs or values i don't think you should nd guess whether they sincerely believe that employees perform in porn religious functions but that just shows that that can't possibly be the right test here and i think your earlier questions pointed that out and so you're exactly right the courts should stay out of that business and so what's the solution then what we think what the solution is is that the court should look to the objective factors that are out  taber the things that are more legal istic and the things that are more ex ante decisions of the church as to who to designate as a spiritual leaders and then aspect legal question about about function and duties through the lens of the establishment clause is a matter of st principles we think of telling just of course such that for centuries of history that is a scout on the other side of this case there is not one single example of a person who was not entitled member of the clergy receiving the kind of protection of being requested today we think if there were this deeply rooted st amendment rule that they're describing there would be even thousands of cases millions of cases because they're talking about expanding who was covered by the ministerial exception from primarily people that had objective in dish of ministerial status to making them truly the norty among a sea of employees just just teachers alone who have important religious duties but have never been thought to fall within the ministerial exception milwaukee jewish day school they say that the th circuit's approach the more formalistic or objective approach means that in their words quote jewish schools have fared markedly quote under that test under the th circuit's formulation at least so that tests want to get your reaction to that and how we can prevent that just as cavanagh i haven't seen any empirical  proof for that statement and we don't see why that would be the case remember the th circuit itself harmonized its decision with the th circuit scratched our case which dealt with the jewish day school and said that even there that teacher had a special training to be teaching  in that school and that teacher may well be different and just a scout if i would just return you i don't i know i've said this before but the cases we've cited in red briefs and our rhetoric of but no one deal with schools of the christian faith of of formulating the legal test as the court says hosanna table or it's not in the st case just a list of factors we may have to refine that in this case if we were fined and by adopting justice ali would be the problems if any with that from your perspective well i just i think we agree with much of the concurrence just kavanaugh we agree that titles certainly that certainly the moniker minister but the titles more generally shouldn't be determinative and we did and we agree that function is important and we further agree as i was just saying that what the court ought to do particularly want to be careful in this highly sensitive area is follow the vast experience of the lower courts now where i depart from the concurrence and i did i just this is just my own difficulty understanding it is that concurrent leaves out all of the cases that we cited but no one of our of our brief  but i want to get another question or two and you mentioned earlier religious teacher who just picks up a religion teacher who just picks up the handbook and you refer to someone like that having no training and i guess i would question the training point and there's no way to do this in paris label my guess is a lot of religion teachers would say their license or training cannot i think i think i'd respond to that are returning to one of mr ross talks on answers when he was asked is it enough to be a model or a witness i think he said no and so i think there's something more than being a model of the faith or using your own personal experience because i don't see how you would distinguish the teachers in this case if that were the proper touchstone from the hundreds of thousands or millions of other employees of religious institutions who are told in their handbook in their contract by their supervisors to carry out themselves during work hours and their lives according to the faith thank you very much mr fischer thank you mr fischer you have  minute or so to wrap up if you'd like thank you to hear somebody else wanted to ask a question ok thank you thank you mr chief justice with no other questions i'll just simply return the court to what i think is important to bear in mind of the overall question in this case which is when is categorical immunity required on the one hand and when is it not enough to say you're entitled to statutory matter to choose people of your own religion to work for you you're also entitled to a statutory matter and as a free exercise matter  hire and fire and set their terms and conditions of appointment according to your religious values and we think the way teachers here fall on the latter side of the line it is enough to give the schools in this case the ability to hire fire discipline and otherwise have the terms and conditions of employment according to their religious values and it is too much it would blow the whole in our nation's civil rights laws in our employment laws in general to say that categorical immunity applies and so schools can pay people different amounts use race sex and other private characteristics even when they have nothing to do with the religion and the religious values that stated so we asked the court to affirm thank you well for decades and has been using the functional consensus both before and after his imitator and you look at our pages eighty nine dollars of the yellow brief we explain that there are other cases where lay teachers and and have decided under the under the functional test so i would avert to the fact that the federal government said there are three buckets pastors musicians teachers teacher cases are common lots of nurse cases there haven't been nurse cases and for decades there's not going to start being a lot now there's no need to decide the coreligionist issue in this case in this case they are they were coreligionists and both schools wanted their teachers to be catholic just like in going to tabor when they were non not people from that same religion they were used there were sometimes gap fillers employed and finally this is hardly a case these teachers are the primary teacher of the faith they are the stewards they are the leaders of their classroom the function of teaching the next generation is central as mr fisher just conceded these these are the people who will teach the faith to the next generation if they don't do it no one else will the decisions