a lot and i'm doing this case basically pro bono as to these minstrel immunity issues i think this is the most important case this court may ever decide and you can decide it rightly or wrongly what i know which you think is right and what you think is wrong but it seems to me just as somebody who's going to try to figure this one of the things that makes this case and gordon and tommy not if it's important democracy itself if you look around us look how people are fighting it's tribal if we can teach our children to be good citizens we'll have a democracy that works if shing the kids to be good students good citizens runs a school where hell is a school funded other than to wish the school is funded by the parents of the parish and the and the parish has a private school it's it's a not for profit educational school my cock my choir was hired as a teacher who oversees replied the say not the lay supervisors within the superintendent of schools of the ar are all laypeople there's not one religious person who says calls my client a minister there's not one religious person who dictates the edge of education if you look everything is christian in general but at twenty three percent of the students in the archdiocese schools are non catholics including nine christians and nonbelievers i mean the reason i ask these questions so i think you said this is not a religious institution it it's just say no it isn't it is a private school that sponsored by a local parish who also is under the auspices of the archdiocese of new york and when you talk about and the lower court in like me getting into canon law but when you talk about how the catholic church organizes itself it has pastoral ministry is to deal with the religious aspect has religious past  ministries of service economic and educational this fits into that in other words it's not religious there's nothing religious involved in my client's being a principal  contracted for the job of lay principle in school there's nothing in that part of the contract said you have to be a good catholic and that's all then say then them ply gave her no clue whatsoever that she was going to be a minister and for the courts to in a procul school private school or a bible manufacturing company or a hobby lobby tenacity question would it have been proper so were the case about terminations but i want to flip it a little bit would have the proper for the school not to hire your client on the basis of her religion or on the basis say of her gender the question that proposed a two pronged approach to the whole issue here one is look at what the employer here in the school wants it wanted a educator and it had as a bona fide occupational qualification which is permissible under title seven a catholic so yes it can discriminate in favor of hiring catholics that's the bonafide occupational qualification but it has said we only one nuns yes and one we save we only more priests that's also gendered they had it's my question to discriminate based on gender in the hiring context of the roman catholic church is a male oriented society but oh but in this case could discriminated based on hiring based on gender it had to lay principle contract and a religious principle kind of question is could it have said with respect to lay principles we only want w if you're talking about the church proper the religious group in its religious things it can discriminate any way it wants it can be anti black anti everything and it's permissible under the first amendment but when the church regardless of whether it's a nice church i love the pope francis or islamic radical or whatever terrible type of church within the church of the religious function it can do anything it wants shorn of violence one of the first men but when the church then goes in to the secular world and when the church the archdiocese here is either doing so as a cation or bible manufacturing company it's its trust in them to provide for me to education and help students integrate the gospel into daily living that's sounds pretty religious to think number of things on that one as i brought out your honor that the church did not bless that document and many of the things in that document are hearsay there from lay people it's not authoritative doctrine if you want to look at the the bylaws of this organization look at the canon law of the roman catholic church those are the bylaws there's not one religious person who put affidavit in this case saying my client is a minister the pope i'm sure would not say that i'm sure the cardinal when or any bishop you have lay people at the non catholic lawyers in this case who work characterizing my client a minister and the district court below he said there's no dispute the plaintiffs is not a member of the clergy and wouldn't be considered a minister for purposes of church governance but here the issue is not channel law but law and minister for purposes of the ministerial exception are far broader than the meaning that it does for internal church purposes that your honor is asking this court to say individual rights of americans in this country are subservient to organized religion when the constitution and the bill of rights specifically says we do not establish religion in this country my client is a good catholic my client no she wasn't a minister she was hired as an educator and what you apply to the roman catholic church and the problem here is everybody loves archdiocese in their schools but what you apply here applies equally to the city schools  and in this area the radical fundamentalist christian work muslim or anything like that did the hypothetical i could in the world what exactly can you can maybe maybe this is a better way to address it although i want to go back to the hiring  context what in your view was the scope of autonomy for these institutions to select their employees it's clear is clear on it and this is my i hope you you will consider a topic it's one is see what kind of employee you want if you want a secular employee like they do with my client card here's a contract for a lay teacher position lay principle position is a is a deacon lame position in the church well your honor this is what i'm saying if the church were to have said we're have an invitation for a religious principle answer my question is a deacon a lay position the catholic church show the bishop of rome is the pope the top the bishops run the show and they can use in teaching the word of god the gospel they could go to their priests or deacons ordained ministers for that purpose they can't go that's that the canon law says we catholic practice but within the lady there are people who have significant jobs in in the context of a church service as you know your honor you know and also it even house and when you're the the music director you have a ministerial role and if if the church were to hire somebody put out for bed here we're looking for a minister hire will hire you but you're coming in as a person in a ministerial were a monastery or a seminary those are religious things but here that's not with what was did they were looking for an educator my client has credentials up the ones who as an educator she is no  i have regarding being a catholic c c d as a thirteen year old got complete communion and that was it that's her educational background and for this court to say the civil war will retroactive turn a person who thought they were being employed by an entity is religious it's a religious affiliated entity a private school is religious affiliated for her to be hired and then them to change the rules after the fact when she's complaining of in this case gender discrimination but she just as easily could be complaining of race discrimination and if this court's going to say ok if you get hired as a lay principle and the new priest comes by and says you're fired because i don't like afro americans if this court's going to uphold ministerial immunity it says you don't have any rights to come to court and if you say that for a private school you also have to say that to a church affiliated and i did not understand the argument on the other side to suggest that there's no right to come into court as i understand it in the in the serial exception is an affirmative defense so the plaintiff always has an opportunity to always have an opportunity to test whether the ministerial exception applies sure if it some of the terminations is that it applies then there's an immunity for us if you started out your statement by fact and say oh well you did this religious type of thing and that religious type of thing and this my client is of i'm sorry is it really your view that you have no argument available to you or the plaintiffs in your client's position have no argument available to them that the explanations are pretextual in the context of a minister there is no it's not a vigil formulas right but if you another words if that's the way all i'm unities work that's what they're called immunity you know that there's an immunity that's the approach on my part but there's a similar immunity cases that if it's about religion you go into court you say did he defame me coast to coast it's thrown out then it's in effect an immunization or tennis and if this court says that a person who teaches elementary school students or supervises them is a minister because it's in kavanagh no it's a question of the least part of what the minute this person's duties are agreed upon it that simple i mean that's exactly what is going on in the nation right now the catholic church was trying to negotiate contracts and in san francisco where included in the collective bargaining agreement the teachers union would agree that the teachers had manual the manual just to pick up on that question from just sachs says it provides that the principal directs the implementation of the religious education program is committed to the mission of evangelizing involves the staff in formulating plans people not not with authority of the church the church manual of my client the one thirty three of my clients employers said we don't discriminate on the basis of creed the archdiocese says in were the issues that i knew the employer could eventually impose the employer can certainly impose on a principal who is a late principal i got a job there they had nobody else my giver gets a job as a principal there and they said leave some priors that doesn't make me a minister when i pick one thing was i can sit here and read the whole record the question is in light of her duties as disclosed in the whole record is there or does it within the image and that's the question is that that immunity as as as outlined in the most recent supreme court the court should view it statutorily as a bona fide occupational qualification if you can't do the job of being a good catholic principal because she doesn't know the lord's prayer you're fired because you don't know the basics of catholicism that statutory protection that they have is fine but this court wants to take it to the constitutional level and the constitutional level means if my client is principle says to the boss there are dark skies if you know what the teachers are prejudiced against the students because there are black or there's one jewish kid in there picking on the jewish kid and the teacher the principal were to say to her bosses you know what we have these rules we don't do this in our schools and the boss says you know what you are fired if if it's only title seven protection she would have should have a cause of action that raises an interesting question on both sides and that is does it matter once you decide if you use if you decide that there is a ministerial community available or while you're deciding it doesn't matter what the cause of the terminations is that is does it matter whether it was supposing it's let's assume she's let's assume she would otherwise or within this doctrine but she's fired because she catches another person stealing money and then she's fired for that that's i mean request to consider that we should give religious protection to the church as shirk and once we start going and saying it extends to the church affiliated entities the church associated entities here the private school that has the church you know values and so on and so forth once you take that make that step and has a lot of tapers clear you had there of minister who wanted to be a minister she wanted to be ordained  wanted to be where the clerics she was that and the church there said we as a church in our church role are ecclesial role or taking that away from you and therefore you're no longer a minister and she was in a job where i argued that that was required of her to be a minister that's my two prong test here one is what's the job you're hired for if the job is as  religious tropp the priest for the parish that's a ministerial job in the courts have no role no authority to your uma rest on a dispute about whether or not your client provided the services that are described in the annual so i mention all of these things at the manual provides the principal must do well you are you disputing that she did that we when i didn't want to do this i think that's a yes or good i think we can see that in the reason like i can see that all things which i thought that the archdiocese could eventually impose because i didn't need a trial on things which at the end of the day all the archdiocese has to do is say you know what principles you have to teach lead a prayer three times a day or five times a day or you know it's easy for the employer after the fact to say you know what in order to  well your honor i think you can fairly see it in the manual and some of the other like what was trying with the trying to do services go with the contract you can see where there's a concerted effort by the organization what can we do to turn our employees because once you say that my client the principal is a minister clearly the next step is all the teachers are ministers because teachers have a full day responsibl but she had a contract your honor she didn't have any real internal appeal right she had a secular contract that says you have to be a good catholic it didn't say you are a minister so if  the board we seem to have said that the minister exception protects more than just ministers and posada to bore doesn't by its terms limit it turns out that in that case  arguably it was a minister but doesn't limit its holdings to just ministers i think your case your honour's said that you limit you you're not going to limit it to ordained ministers and i have no dispute about that example of nun or friars not ordained minister but there in a religious role well here we hit it we then cited to the following cases applying the minister exception to organise music director to a press secretary to director of music ministries applying exception to staff of jewish nursing home and in all i put ice refer to all those might be all those have to do with activities that are in the church imposing religious types of things on people does not turn them into a minister of the church for internal church governance purposes and that's what i was on a table was talking about think the government cannot absolutely is barred from intruding into internal church governance but if you expand that beyond internal church governance to every person you expand it to deprive them of all their civil rights we have cut you well past the time you've e's in this matter judge said bell should be affirmed that this case is a straightforward application of forty five years of ministerial exception precedent in the courts of this country and is in full harmony with requirements that seem to be very religious and ministerial in nature well that is a very important distinction that that the court should be aware of that is if you look at the contracts that are in the record at appendix one sixty six and one sixty nine you can see the difference between a contract for a religious principle and a contract for a lay principle of lay does not mean it's not the opposite of religious in terms of being secular lay means that you're not a member of a religious order so you're not a nun and you're not a brother and in fact a priest that became a principal at an arch diocesan school would not use the religious principle contract because if you look at that it says that the in lieu of the wages that would normally be paid to a principle the religious orders paid money because they have essentially six hundred their brother to go be the ecclesial minister within the church that you have lay ministers there's laypeople to do all kinds of parts of the ministry those trying to get up but there was some resistance of that idea yes i noticed that i think the other thing that that's true i think  question about you know the term minister that can also be a little bit misleading the term ministry is not determined by the canon law of the catholic church or what have you it's actually a legal term of art that the courts have used as it developed this ministerial exception hundred seventy two but as you can see in the hazing the tabor case you have the concurrence from justices alito and kagan where they basically say the word minister is not such a great word because it's kind of protestant and it doesn't you know it doesn't fit every religion that's true the the the the court definitely can and i think should take into account title but here if you look at the appendix again pages eighty seven and one eighty five it literally says that principalship in an ar school is ministerial quote ministerial and the other thing is that with title the title consideration you actually have to think about what is the context of that because there are some religions for example presbyterianism or quakers where the person that's in charge of the relevant congregation is actually a clerk so if you just take the word clerk in the abstract kind of just take it out doesn't sound like a very high up term but actually is is the top the head up top person yes and i think the same thing through the w cancer for example can't there's cancers in there's jewish cancers there's lutheran cancers there's catholic cancers but they have very different roles in the different religions as well and it means singer in latin but but the idea is like you can't take the word cancer from the jewish context and decide ok what does that mean for lutheran cancer you have to have a little bit of context for the title i think one of the point i wanted to make sure the court was aware of is that there's been eight cases that we're aware of where courts  applied the ministerial exception to religious school principal and all courts have held that it applied now we think we said six of them in our in our brief there's a couple others that we're aware of the circuit courts they're not they're not all circuit decided so the point is that when courts have looked at this if the said ok you're the head of a religious school this is something that you know it really matters what your religious leadership is here of course you know there's sort of a cornucopia of evidence in the church she wrote monthly religious messages to them and their families she encouraged the parents to attend mass with her and the kids she developed the school's religion curriculum case that that's right there is a you know first of all as mister was mentioning he conceded many of these facts at the summary judgment stage but also for example the daily prayer issue that was something where i think there was some clarity about whether she'd actually done that well you know appendix three three two and three three three she was leading daily religious prayer and doing it with the kids over the intercom so it's not  you know the idea that suddenly she's sort of surprise you know shocked shocked that she was you know teaching running a religious school is is absurd frankly and you know the reality is that she knew from her contract itself you'll get appendix eighty four and eighty five she knew that any four and eighty five that's your contract that she signed was a big section about you know making sure that you following the catholic faith and being a catholic leader  ask what role does the appointment contract have with respect to the minister all exceptions so it's not an issue in our case but if the contract has a terminations only for cause provision in the person otherwise qualifies for a minister exception can afford going to court and force that clause against the church i think it would be hard to do one for cause you could imagine situations where there is a liquidated damages provision or something like that a court could do but if it's something where the court has to start delving into what is proper cause then i think you and up with all of the problems at the ministerial exception you know the courts develop the ministerial exception spontaneously because it disclaim application of the ministerial exception in their contract so so as judge lawyer he was pointing out it is an affirmative defense there is actually some division about the question of whether you can still waive it because for example the because the ministerial exception is something where you're trying to protect the courts from getting into the church part and so that's that's the issue i agree that that you're right that the firman of defense called to use terms we use right as there is much at stake as you have a series and what you are suggesting is that this may appropriately be deemed an affirmative defense because it applies across the board regardless of the position of the defendant that doesn't make sense to me well i would refer your honor to the six circuit case the conlin case where they really go into this issue and i i think it does make a certain amount of sense that separation concerns keeping church and state separate you know i you know let's say i have a case where i want to you know bring it as a religious plaintive and i want you to decide a religious question and the other side says fine you know go ahead and decide the religious question the court still can't decide the religious question because it's like upward question it's a bit like yes that would be a good analogy so you know is a pull its political question an affirmative defense i don't know but it's something where you could you could think about it there's nothing here and i don't think you have to reach that to decide this case certainly cannot possibly address a few things that came up in the argument with mr diedrich one is that there actually is another case on the ministerial exception pending in this circuit the pen case that we the term the methodist hospital has nothing to do with the church i think that that's the issue in that case it's not about it's more it's not so much about whether he is a minister because he's a chaplain of the hospital but whether the hospital can actually invoke the ministerial exception so this will probably be the first case that decides taber you know who's a minister under the ministry looks option in the second circuit that case this case this case will be  that case would be about usually we take great exception to that i mean if you look at the entire record it's replete with different things saying that you know propagating the catholic religion is job number one at the school and at all archdiocesan schools and it is actually funded by the archdiocese of new york and they do report to the archdiocese so this idea that it's sort of you know this church that kind of you know it has been argued that it was i believe a month ago proximately it was it was argued in twenty seventeen i think that this case is a latin clearer and easier so i think it's overwhelming evidence that she performed all these religious functions she had a religious role and if i could get back to a couple of other just points to sort of clear up that came from the argument earlier the pastor in the principle both have religious leadership roles that's laid out in the manual i don't have the site right here but it is pretty clear that the principle of the pastors are supposed to pass a partner together to inculcate religion in the  that would be a sham pretext is why did you really fire the person and that's what the supreme court said is is off limits also the same thing with the be a folk you specifically reject  as i think that's right but that would be something where you know i think if you you know you had something like the church of cognizance case that judge or such decided so we may be hearing a lot about it in the near future  but it is a case where some drug runners would hand out a certificate of ministry to every person they did business with so if you're going to sell the drugs to me i'm going to give you this you're a minister in my church and then we can all be protected by the first is the principle of sincerity that that's the state of mind question and you can decide do they truly hold the beliefs you can decide that but you can't just say that's not an issue in this case that's we're getting pretty far afield but i just i want to address some of the things that were there were brought up earlier judge lawyer you had had mentioned the idea that it goes beyond ministers that's clearly the case from the entire history of  was written by judge wilkinson on the fourth circuit and then you know there's also the kosher supervisor and the hebrew home of greater washington case so in a jewish preschool teacher in the temple emanuel of newton  so it definitely goes beyond and this gets back to that question of what does a minister what does minister really mean it's a legal term of art maybe a problematic one as justice is a leader or same that's the one that we have right now under your governing l say maybe mistakenly to hire someone who was black and then fire that person because that person and vote the minister well  came up under the a but but you know there's been a number of different race cases they do tend to be you know they've come up in a number of different contexts and there's age discrimination disability discrimination race discrimination gender concern that essentially an employer could be can switch hiring an employer for an essentially secular function and then imposing religious duties as a pretext for discriminatory for some point action what's your view on that concern well in the first instance i think it's it's the pretext question is is one that was in a tabor put off limits so it's not something where the court can sort of delve behind that you know with respect to the fairness question you know is this fair to do this i think you know i think that's ultimately going to be a little bit fact based but in this case it's crystal clear that she knew that she was you know that's that she had to in coalgate that she called herself an excellent religious leader and she when she applied to the school she said you know i'm a great spiritual leader because she was trying to get a job from a parish that was closing at school she got a little bit of preference because she was it appears with the well i mean this gets back to the idea we were talking about with the presumption idea in our briefing you know we offer that is a sort of helpful here istic for the courts and actually for litigants in the lower and the lower  courts it provides sort of some content to the rule so it's not just sort of this you know let's consider a whole bunch of factors and come up with an answer but it also you know deal but it deals with the fact that there are a vast number of potential contexts where this could come up so i think having that sort of presumption in rebuttable presumption would be actually helpful sort of short cut for for courts the other thing is that it would be the basis for us to adopt the kind of presumption that you're suggesting for religious principles or across all types of religious schools based on the record that we have in front of us which is about a catholic school well i think would be something where you'd be recognizing a pattern in the law so you'd be recognizing that you know there's certain there's certain kinds of positions that are just much more likely to be ministerial so you know you don't have any bishop cases in the courts because people have you know they just no one's dared as far as i'm aware you do have some priest case some minister cases some rabbi cases but a lot of the cases are teacher cases so they would not i don't think there in that presumption they would be sort of in the middle gray area and then you have you know  other end where you almost could have the you know the presumption might work the other way because daniel staff then you're probably not going to be that and somebody has to rebut that but i think it's important it would have to be rebuttable presumption because you can imagine is some situation where  the principals at a school that is you know you know it used to be associated with the church it still has the name on it but doesn't actually exist in the association with the church but used to have an association fifty years ago well that i i don't know c n n's but you can imagine whatever yet st lattimer's you know something something where it's where it's you know it used to have a connection doesn't really anymore so that's how  else well and i and i think the the other reason to sort of do that is that i think there's there's a problem when a lot of the cases go all the way through the system and come up to the second court of appeals  the supreme court because there is an entanglement issue just in the process and so if you can you know entanglement between church and state and so if you can get to a point where you say look ok some of these cases are clearly you know going to be core ministerial some of them are not going to be that we can at least kind of you know trim down you know deal this vast number of contexts and can trim it down that's the reason we sit suggested that recognizing the presumption but understanding that we could also if we agree with lower if you say in this case it's clear and then this court will be establishing religion in this country there won't be any other cases like this to follow because it will be clear that no plaintiff's attorney will take this kind of case and it will apply not only to then parochial schools catholic procul but all religious schools and then companies and regarding religious schools the supreme court in peers first society of sisters recognize that the state can require a basic education for students up to age seventeen that's what this school is giving it's not a monastery a seminary a sunday school it's a private school that teaches a secular education so that the at the end of the day and this is why i feel so strongly about the really the schooling aspect of this case at the end of the day the city the graduate of that high school is a good american citizen not and indoctrinated catholic church is pretty good at not  do newsletters and teachings about this and preach about it now i can fire her no absolute immunity under this new sterile munity thing so one very important thing is to the extent of the gate given the park because your honor the prior cases deal with legitimate ministers people like the chaplain you know people like that but right now the attempt with this court is going to be the leader on this the attempt is to get the courts to broaden the scope of the first amendment protection and no rights normally protects individuals in this case the court's being asked to defeat the right of any religious individual who is employed by an employer where the employer could say you're now a manager and if you're a manager and you're now a minister and if you're a minister we have community complete immunity to fire you and use minister immunity doctrine the second thing your honor is so one is i think you should be very reluctant to not see that ministerial unity as a constitutional principle is extremely damaging to the civil rights of every individual and the constitution protects individuals the first amendment says not to establish religion and it protects individuals not organizations the second thing i'd like to point out is two prong approach the chaplain appliance for the job as a commissioned army officer with application it's clear though that the religious credential is required so you're employed by the army if the whose army chaplain armley chaplain corps says now you lose your employment too because you're not qualified you've lost your the ecclesial side of the house the church side of the house has taken away that credential i'm entitled to administer you just like if it's a lawyer and i get this part of the army doctor who loses medical license you lose your credential you lose your job and if in my current client's case right or if knowing what i know now and in the broader scheme of things if the church started to impose upon my lay clients and layers of english language dictionary definition it's not and it means nonreligious if my client would suddenly been imposed or had imposed upon her you know what you need to do all these extra religious things i could say as her lawyer said you know what school you can contract for that my client's not going to do it here i mean your adversary pointed us to page eighty five the appendix and she seemed in one provision to have contracted for a number of what seem to me to be very well the just duties i think the contract discrimination on the basis of creed so what happens when one of those students whose of a different creed comes and says they're picking on me because i'm jewish and my client says you're right stop that and then the priest says well you know what you're fired and we have in absolute absolute ministry immunity to do that we shouldn't be turning employees who are not legitimate ministers in the church function role we should not be turning those people that the slope that will lead to first it's the principle that it's all the teachers of the roman catholic schools that it's all the teachers of all schools that be are calling themselves religious even though under the constitution states have the right to require education of students i think and yet the full benefit of your argument and then it goes to business as they queue thank you very much are argued on both sides will reserve