Advisory Opinions - Our Lady of Guadalupe Goes Supreme

Episode Date: May 4, 2020

David and Sarah discuss the Supreme Court's first day of oral arguments via teleconference, preview the court's May calendar, get the latest in the U.S. women's soccer team's equal pay lawsuit, and preview Our Lady of Guadalupe School v. Morrissey-Berru. Show Notes: -Supreme Court's May argument calendar -Feds, Northam spar over Virginia stay-at-home order’s impact on churches -District Court opinion dismissing U.S. women's soccer equal pay claim -All the briefs to the Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru -2012 Hosanna-Tabor Supreme Court opinion -“It’s after 6. What am I, a farmer?” Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David Trench with Sarah Isger. And I know I frequently say that we have an action-packed pod, and we do when I say that. But this is extra action-packed in large part because Sarah has been incredibly busy before this podcast. Not only has did she take the time to listen to an entire Supreme Court oral argument this morning and was rewarded, weren't you, Sarah, with a rare Clarence Thomas question. Oh my gosh, David, there were two.

Two? Both advocates got a Thomas question. It was very exciting. Are you sure that was Clarence Thomas? I have so many thoughts about this. So 2006, 2016, March 2019, and today. I mean, it almost feels like lost. Like there's a pattern we should be picking up on.

There has to be. There has to be some numerological reason for this. But yeah, so in any, and I was going to say, so not only did you listen to an entire Supreme Court argument, you also looked at Supreme Court docket to be able to fill in listeners on all of the excitement that is awaiting us. And we're also going to talk about the U.S. women's soccer team decision that was handed down late last week. And we're going to preview an incredibly important religious liberty case. And we're going to talk about underrated sitcoms. I cannot think of a more perfect pod. Also, David, I had a really weird experience this morning. So I've been eating a lot of

apples in quarantine because, I don't know, they're tasty and easy to eat. And so we're getting bags of apples. And today I went to eat one of the apples and it was a bad apple. And there's just not that often that you live out an idiom for the first time in your life. You and I don't go to dinner and start with soup and end with nuts and go, well, that was a great dinner soup to nuts. That just hasn't really happened. But to actually get a bad apple, and I have spit it out, and it is on my desk disgustingly. Oh, well, that's a vital update. I'm sure the listeners are happy to have heard that. Yeah.

Well, let's, so Sarah, before we get going on the soccer team, soccer case, and the religious liberty cases, ministerial exemption cases, which are super important. Your Supreme Court work, fill us in. So today they heard oral argument for the first time since the pandemic over the telephone system. And so C-SPAN carried it live. It was fabulous. It started at 10.01. And basically, each advocate got to give a little opening thoughts. And then they went in order of seniority, where each justice got to ask about two minutes worth of questions. It worked so well. It was really, really helpful.

The case, I don't think many listeners are going to care too much about it. But it also was pretty easy to come right into as a non-lawyer. So I'm hoping lots of people tuned into C-SPAN and enjoyed it. But generally speaking, it was on whether booking.com could be trademarked or whether it was too generic. That was basically it. And there was so much to recommend this system. The advocates got to say their piece. The justices, uh, all got to sort of think through their questions in order of seniority. I think it's why justice Thomas asked questions for both advocates because, uh, he's so early then in the question order, his argument for why he doesn't ask questions is because his questions get asked

by his fellow justices. Right. But if you're asking the second set of questions right after the chief justice, then your questions haven't been asked and you don't know whether they're going to be asked and you won't get another chance to ask them. And so it was, I thought, really instructive and a good way to listen to it. I was very grateful that C-SPAN covered it. We also had two female advocates today, which is very unusual, actually. There's been a lot of discussion over the percentage of female advocates who argue before the court. And there's sort of this, you know, side feminism argument happening about Supreme Court advocacy in general. So that was also pretty fun. Now, looking ahead. So this is the May argument calendar. And David, get ready. This is like a sprint, but like an Olympic style sprint of excitement. So Wednesday, Little Sisters of the Poor. It's back. It's more little and more poor,

or however you want to say it. Maybe Little Sisters of the Poor are the case is bigger and poorer. I don't know. I don't know. Yeah. So Little Sisters of the Poor, the sequel. The sequel. That'll be on Wednesday. So I'm sure you and I will talk about it on Thursday. Then there's also this interesting First Amendment case about banning robocalls and whether you can sort of have this little exception for debt collectors. And then these political consultants are saying, well, if you have an exception for debt collectors, then you need to have an exception for us to make our First Amendment calls. So that one's maybe a little niche for someone like me, but nevertheless.

So, you know, that one's maybe a little niche for someone like me, but nevertheless. Then next week, we've got our lady of Guadalupe, which that's my Texas pronunciation, by the way. We have Manchac, Guadalupe. So it's Guadalupe, I'm sure. That's on Monday. Very exciting. We have whether Oklahoma, like half of Oklahoma is no longer under Oklahoma's jurisdiction, basically whether Indian country, whether states can prosecute crimes in Indian country. Then we have the Trump finance cases. There's three of those, two about the congressional

subpoenas that have been combined, and then one about New York subpoenas. That's going to be a day. And then we have the faithless electors, which I'm so excited about. Well, it seems to me because if you look at this list, which is a pretty incredible list, and you combine it with what's already been argued. Exactly.

We have DACA we're waiting on. We have the Title VII cases that we're waiting on. Blaine Amendment we're waiting on. The first abortion case of the post-Kennedy court that we're waiting on. It's almost as if the Supreme Court said, you know that culture war, the legal culture war thing that's out there? We're just going to settle it all in one term. We're going to lay down all the laws in one term. And then y'all Americans, you can react accordingly. And all this stuff with Trump.

I'm just so glad we have a podcast for this term. Oh, this podcast was made for this term. Or this term was made for our podcast. True, true. And every podcast up until when these decisions start to roll in was just mere practice. That's right. is sort of how important a lot of these cases are. And we say for the culture war, and that's sort of a short and lazy way of talking about anything that deals

with religious liberty, sexuality, abortion, et cetera. But really, for how we're gonna view, and in my view, because my prediction, and I could be wrong about this, is that things are not going to necessarily come out in all the ways that people think when you look at a court and you sort of check a 5-4 ideological box where you assume there's a quote-unquote conservative outcome and a progressive outcome.

And on all the hot-button cases, you're going to have a 5-4, and the conservative outcome is going to prevail. I am not as confident about that. And I think that some of the unexpected outcomes could have some real ramifications, not just in the legal posture, not just in legal doctrine, but also in electoral politics. Well, yeah. I mean, the faithless electors is a great example of that, by the way. But I also, to your point about these not turning out along ideological lines, I think Our Lady of Guadalupe is a great example of where there's a pretty big opportunity for that not to be a 5-4 case. By the way, just can other case that popped up this week that's sort of interesting

on coronavirus, because actually we're not going to talk coronavirus otherwise today. Right. We didn't talk about this ahead of time. We'll fill that coronavirus void. That's what I'm, yeah. So we didn't talk about this ahead of time, but I live in Virginia and the Department of Justice did one of their statements of interest in this Virginia case, which harkens back to several of our pods and a lot of the questions we were getting back in March about church closures. And basically this Lighthouse Fellowship had a service with 16 people that violated the governor's order that said only 10

people. They were given a criminal citation and they've asked for a restraining order, an injunction. And their argument is that Governor Northam's policy allows for non-retail businesses to have more than 10 people in them. Right. And they could, for instance, gather in a conference room. than 10 people in them. Right. And they could, for instance, gather in a conference room. It also allows for retail businesses to have 10 customers, but more employees. And they have all these pictures from parking lots at Lowe's with, you know, 162 cars, et cetera. This might be one of the better teed up cases to watch for coronavirus litigation, in part because it's a pretty vague order from the governor. You have 16 people in a church,

and they have pictures of that where they're all socially distanced and all of that. And two, we're now into May, and the governor's order is supposed to last until June 10th. So for a lot of reasons, if you're looking for a good coronavirus test case, I think this might be the best one so far. Yeah, that's a fascinating case. And highlighting the kinds of exceptions that you talked about is

really, really important. That's the ballgame. Yeah. The more exceptions you have, the less it's a neutral law of general applicability. And I've taken to reading a lot of these shutdown orders. I don't know why. In your free time. In my free time. Hey, Nance, should we watch the next episode of The Last Kingdom? I have three shutdown orders to read. No, I'm just fascinated by them because what I've come to understand the more I read them is that the word shutdown is a really remarkably

overbroad term to describe a really diverse array of orders that have allowed businesses to operate to greater or lesser degrees in all across the nation with very flexible and elastic definitions of essential. And so there are some commonalities, for example, closing restaurants. There are some commonalities closing bars. But short of that, you've got an enormous amount of flexibility that has been exercised by mayors, by governors.

And these are not all one size fits all and by any stretch. And I think it explains a lot of the reason why you see different mobility numbers. You know, you've seen these Apple, you know, these charts tracking mobility in the U.S., like who's actually up and around and moving. And some of this is due to, you know, whether people are getting out where it's nicer. Some of it's due to the nature of the different states with different, you know, here in Tennessee, it's a commuter state. I mean, if you're going to work, you're driving. If you're going anywhere, you're driving. So there's going to be a higher mobility number. And that, but a lot of it I think is due to the nature of the

different shutdown orders. The, the economy was not, shut down. There were dramatically different orders passed. And so I do think you're exactly right. Something along those lines with you have 16 social distanced people is totally different from some sort of house party in Fairfax with 60 people, you know, jammed into a two bedroom apartment with a DJ. Well, to crib Louis Brandeis about the states being laboratories of democracy, I think this is for in any number of categories that we some of which we've talked about. This situation is laboratories of litigation. Yes. Yes, exactly. And we'll be litigating it for a long time. But let's move on because we need to give credit where credit is due. Sarah and I had a really, I thought,

interesting conversation weeks and weeks ago about the case the U.S. Women's National Soccer Team filed against the U.S. Soccer Federation because the Soccer Federation made some rather explosive arguments about the nature of men's soccer, essentially requiring greater skill, athleticism, et cetera, than women's soccer. And that's one reason why a sex discrimination case based on disparate pay couldn't succeed, based on disparate pay couldn't succeed, which turned out to be a completely unnecessary, politically explosive argument that, quite frankly, was one of the weaker arguments they could have made in light of the fact that there was actually actual collective bargaining had taken place. And on May 1, on Friday, the Central District

of California issued its opinion, and Sarah called the shot in our first advisory opinions about this, basically said, look, the real issue here is a collective bargaining agreement. The women chose a different compensation structure than the men. That was their choice. And therefore, they can't make a sex discrimination case because of their choice. And that's essentially what the judge ruled. So you want to spike the football on this prediction? What's amazing about this is that the head of US soccer had to resign over that brief. Right. I mean, he lost his job for basically his attorneys at the time, making a completely unnecessary inflammatory argument that was,

I mean, and you and I talked about the pot. Also, I don't think a winning argument, even without their more winning arguments, like I think you actually would have lost on that argument if it had been their only one. Oh, I agree with that. Yeah. But they made it anyway. He lost his job over it anyway. And the judge doesn't discuss it. He's like, not touching that one. Thanks. Because it kind of cast this dispute as a kind, the kind of pay dispute that it casts this dispute as a kind of pay dispute most people experience, which is I work for an employer. They tell me my salary. And then maybe later on, I learned that.

So let's say you're Sarah and next to you in the cubicle is Bob. And after nine months of working side by side, you go, hey, Bob, are you getting a raise this week? And he's like, yeah, you know, I'm going from 100 to 120. And you're sitting there at like 85. Yeah. And you go, wait a minute. You know, we're doing the same job. And it was really cast as sort of this case where the U.S. Soccer Federation just said, here's your money. It's less than the men. Deal with it. When what really happened that this was a negotiated agreement between the parties where the women made specific choices financially that were different from the men, but it was a voluntarily arm's length entered into collective bargaining agreement. Yeah. And you know, his, the two main things that this question turned on, and by the

way, a, the case is going to get appealed to the ninth circuit. So we ain't done with this yet. And, uh, you know, you and I have a friendly side wager that I think the ninth circuit may let this go forward actually, because this is a summary judgment motion, which means you don't look at the facts. It's just whether basically the case can even move to a trial fact-based position. I think the Ninth Circuit may let this go forward because it's the Ninth Circuit. However, it's a pretty close call because that collective bargaining agreement, they had the opportunity to use the same structure as the men's national team and chose not to. Yeah. And the judge lays out this nice. Plaintiffs have not satisfied this burden. It is undisputed that during the game,

the class period, the women's national team played one hundred and eleven total games and made twenty four point five million overall, averaging $220,000 per game. By contrast, the men's national team played 87 total games and made $18.5 million overall, averaging $212,000 per game. Based on this evidence, it appears that the women's national team did not make more money than the men's national team solely because they played more games. Rather, the women both played more games and made more money than the men's national team solely because they played more games. Rather, the women both played more games and made more money than the men's per game. Under these circumstances, it is not, quote, absurd to consider the total compensation received by the players. And this

is right before he goes into the collective bargaining agreement where he goes through, they were offered this, they wanted this, they negotiated for certain risk versus reward benefits in their bonus structure. It's a really, it's a thoughtful opinion. No surprise there, 32 pages from a well-regarded district court judge. So, you know, no need to belabor it, but it's nice to be right. Thanks. Yeah. Well, and it's also, it's also nice to clarify for those who were wanting to put this as sort of like this is a case that sort of the a a signal case for women's rights in and against sex discrimination. This was not that case. This was no, not that case. When I talked about Lighthouse being a good vehicle to talk about stay at home orders in litigation, this was a bad vehicle to do this sort of pay discrimination. And we talked about this, but there were several reasons it was a bad vehicle, actually, including that they don't differentiate advertising revenue between the teams.

It was a very messy case. Yeah, exactly. All right. Well, we just had to circle back. We had to note that, Sarah, you're correct. And we'll keep an eye on this and we'll see what the Ninth Circuit does. But as you said, it was summary judgment case, which meant that, you know, the district judge is saying that there was no material dispute of fact that a jury could even weigh into here that could change the

outcome. So the Ninth Circuit may disagree with that, but we'll see. So let's talk about, and this case is very important and it triggers me a little bit. And so I'm going to lay my cards on the table. So, the case is the consolidation of St. James School versus Beale and Our Lady of Guadalupe versus Agnes Morrissey-Beru. And essentially, these cases both involve teachers at religious schools who are filing discrimination claims against the schools based on adverse job action. And the religious schools are attempting to exert the ministerial exception, ministerial exemption from non-discrimination laws. That is something that applies to under the Hosanna Tabor case from several years ago,

which was a 9-0 Supreme Court case. 2012. 2012, yes, which was a 9-0 Supreme Court case, essentially saying that when it comes to a ministerial employee and a church, the rule for the states are hands-off that employment process. You cannot apply federal nondiscrimination law to a ministerial employment decision by a church entity. And that's mandated by the interplay of both the free exercise clause and the establishment clause.

And why this case sort of has this personal angle to it is before I jumped full-time into the journalistic world, I was a religious liberty attorney for a long time. And not only did I litigate in cases, but I also advised an awful lot of Christian institutions, especially close by where I live in Tennessee, as to how to consistently and legally dot your I's and cross your T's on protecting your religious liberty rights as a religious institution. And the one message that I constantly, constantly gave was, if you're a Christian school, be a freaking Christian school. In other words, make it sure that from your statement of purpose,

to your statement of faith, to your personnel handbook, to your hiring practices, to your hiring policies, to your evaluation of employees, that it is infused with the religious purpose of the school. Because if you do not do that, if you do not do that, if you come across where you're picking and choosing when you want to be a religious school and sort of when you want to be like everybody else, you're going to have some problems. You end up with a consolidated case at the Supreme Court on Monday. Bingo. Bingo. So I think it's a couple things that are worth highlighting for listeners. You're probably sitting there thinking,

unless you've memorized Hosanna Tabor, that when we say exemption from discrimination laws, we mean like religious discrimination or discrimination on sexual orientation or something like that. No, no. In the 2012, the original case in 2012, she had developed narcolepsy. So it was actually a disability case. In this case, one of the women developed breast cancer, I believe, and was undergoing treatment for that. So that was also a disability case. And the other one alleges age discrimination. So these are by like purposefully not cases that anyone is arguing is related to the religious practice itself. They are simply saying as a blanket matter, the discrimination laws do not count at all. That means you can fire someone for being black, not because being black is against your religion, but just because you can, because you have this ministerial exception. I think that is stunning to most people, David, frankly, and worth sort of underlining that that's where some of the like, oh gosh, as the respondents wrote, the ministerial exception is strong medicine. Yes. Yes, it is. Yeah. I think that when you talk about religious liberty cases,

and this is something that's going to kind of scramble people's sort of ideological minds right now just a little bit. People ask me, what was the most important religious liberty case decided in the last two decades? Let's just say two decades, since 2000. My answer to that is super fast. It is Hosanna Tabor. It's the 9-0 Supreme Court case. Because if you talk to advocates for, you know, people who are concerned about religious liberty, one of the things that they're going to say to you is they're going to say, if things keep going the way they're going, you're going to have the state getting involved in the pastoral selection process. You're going to have the state telling churches what kind of pastors they can hire. And that was-

Right, that this is part of your religion or it isn't. Exactly, exactly. And the Supreme Court- That's a reasonable religious belief. This isn't a reasonable religious belief. It's not in the Bible. Well, we think it is. Oh, but technically, if you look at this other section of the Bible, like that's what we don't want courts getting in the middle of. four thread. That's not the case. There's a big course, a large set of sort of consensus Supreme Court judicial beliefs about religious liberty that are relatively intact and to this point, at this point, bulletproof. And what you're talking about is how much do you sort of edge out from that or edge in from that that's that's sort of where we are and this case um so so here what i think is really important for uh i think you highlighted both of these cases involve teachers at religious schools who are not um pastors of churches but they are teachers at religious schools who are involved to varying degrees in the religious practice of the school who were terminated for reasons unrelated to

sort of saying, oh, well, this teacher shacked up with a guy, or this teacher is renounced her faith, this is now an atheist. It is- I do think also in this posture, we're also in summary judgment. It's important. We accept as fact that they were fired because of age discrimination and because of disability discrimination. If, uh, if this were to move to trial, those would be issues for fact at the trial. The school of course is not saying that they fired them because, you know, she was old or something. They're not acknowledging that, but we accept that as true. So, for the rest of this pod, like the court, we're just going to accept as true she was fired for being old. Right, right. And so, it's the kind of thing that most, you know, even strong defenders of religious

liberty might look at those facts, and if those facts are as alleged or as true, you would say, this religious school did something wrong. It mistreated these employees. And so then the question, and mistreated in such a way that if they mistreated them then that way and they were a secular employer, they would be liable. And so the question is, constitutionally, are they immune from suit under these circumstances? And we have a four-part test for whether they meet the ministerial exception based on 2012's Hosanna Tabor. Can I recite the four factors to you? Please.

One, whether they are held out by the organization designated as a minister, a role distinct from that of most of the members of the organization. Second, whether the title reflects a ministerial substance and training. whether the employee herself holds herself out as a minister when she describes what she does or, you know, in communication with students or something else. Fourth, whether the employee's job duties include, quote, important religious functions. And this case largely, the one side wants to basically make number four the big one, and the other side says, no, no, it's all four. They're equal. If anything, you know, number four is there, but it's not the only option. this basically should be, the ministerial exception should be a function test that the core of the ministerial exception is a function test, not a title test.

And that's what they want. That's what the schools want. So you make the school case because I disagree. Okay. So my case is this has to be a function case in large part because there is simply an enormous diversity of ways in which various denominations and religions in the United States of America communicate and promulgate their faith. And there are Christian denominations that have an incredible prominence of what more formal high church sort of denominations would call lay preachers, lay teachers. For example, I used to be the chairman of the board of a Christian school in Murray County, Tennessee. And all of our teachers were absolutely thoroughly involved in religious instruction, all of them, no question about it. Not one of them had a ministerial title outside of perhaps some of the Bible teachers or some other teachers who happened to just moonlight as pastors for other churches, but they were deeply involved in communicating the religious faith articulated in the faith statement of the school. They were, in all practical ways,

engaged in ministerial activity. Their function was thoroughly ministerial, but we didn't have any real way to title them like that. Okay, fine. So one of those prongs you would be weaker on. But there's still three other prongs that it sounds like you'd be very strong on. Yeah, so that's one example. But what I would say is what you have to look at is what does this person do? What are the religious functions?

The, the, and that, that's what a minister is. That's what determines what a minister is. You know, some of the other aspects are. Do you think training matters? Do you think it matters whether the person, if it's only what they do and they, you know, pray at the front of the room, for instance, for the students, if it's only what they do and they, you know, pray at the front of the room, for instance, for the students, does it matter whether they consider themselves a member of that church? Does it matter whether they've ever had any Bible training whatsoever about your

belief systems or is simply praying in front of the classroom saying who knows what, that's enough because it's function only. So, we are multi-denominational. So, if you look at the fourth part test, you have the formal title, really irrelevant when you're talking about, especially when you're talking about many denominations in Protestant Christianity, totally irrelevant. Then you have the substance reflected in that title. Well, if the formal title is irrelevant, the substance reflected is irrelevant, then the use of that title. So again, we go title, title, title, and then the important religious functions. No, no, no. The first one is designated and held out by the organization as a minister with a role distinct from that of most members. The second is title with substance and training. The third is employee holds herself out as a minister. And the fourth is function.

Right. But again, all of those, there are, so read number one again. The employee has been designated and held out by the organization, quote, as a minister with a role distinct from that of most members. As in, you need to be a leader. You need to be in a leadership position. You can't just designate every human on payroll as a minister. The janitor is not a minister. Right. True. True. I mean, I do think that. Well, I'm not sure that is true. I mean, in the argument that is being put forth by the schools, I think they would very much argue that the janitor, the coaches, you know, the football coach. Well, certainly the coaches.

What? Oh my gosh, Sarah. Sarah, have you not seen a coach, a football coach at a Christian school do his thing? My goodness. Yeah, so again, what we're talking about here, I think maybe some of the strongest ministers in my son's life, for example, were his football and basketball coaches at his Christian school. I think you're using the word minister and mentor interchangeably, but okay. Nope, nope, nope, nope, nope. So again, this is why it's so important for the court to begin to take a hands-off into diving into the really what is an incredibly complicated and diverse religious community within American religious education.

And a lot of this, honestly, when you look at that four-part test, it seems to me sort of like, okay, I kind of understand sort of high church Protestantism. I kind of understand Catholicism, where there are titles and hierarchies that kind of make sense to us. And both of these cases are Catholic, by the way. Right, exactly. And I do think it's worth noting in the facts of these cases, let's take the one teacher who's a weaker case. She has had no formal training.

She does not consider herself a member of the Catholic Church. It is not required in being hired as a teacher at the school to be a member of the Catholic Church. It is not required in being hired as a teacher at the school to be a member of the Catholic Church. Oddly, if you are a member of the Catholic Church, you have to be one in good standing, but you don't have to be a member of the Catholic Church. She has had no classes to teach this, and when she teaches religion, which she does in her class, she teaches from a workbook. She does not teach the students prayer. She prays alongside the students. And I do think legally it's worth noting that even if the ministerial exception didn't apply,

you would still have statutory protection and First Amendment associational protection if there were a religious reason to fire her. So it's not that we go from you can fire any teacher at the school for any reason and no discrimination laws can ever apply to now everything applies all the time and you have to hire teachers even if they're Satanists at your Catholic school. There actually is this in-between step where you can not fire someone for a disability that has nothing to do with a religious reason, but you can fire them for becoming a Satanist because that implicates teaching in front of the classroom. Right, right. I think that the real issue here is, okay, are we going to take churches and are we going to take individuals who have a religious function within the church? religious schools, a function that includes teaching and communicating religious truth as defined and articulated by the institution that they work for. From a workbook with no training or belief in the religion, okay?

Are we going to take that process and then crack open the process of the employment practices of religious institutions and their fidelity to their own teaching, the extent to which these religious institutions consider what kind of training is sufficient to be considered to be, what kind of training is considered to be sufficient by the state, what kind of religious participation is considered to be sufficient by the state? What kind of religious participation is considered to be sufficient by the state to begin to fall into this test? And I think that you're opening an unbelievable can of worms here, just an unbelievable can of worms with a religious community that the test, the Hosanna Tabor test is just the all four parts just don't connect with the religious community of the United States. I agree.

How about this? This is a difficult case. If it were an easy case, it wouldn't have made it this far. True. So your arguments are not without merit. I understand the worms that are now crawling around in my world because I have opened the can that they were being held in. But I also think that there's going to be worms on either way on this. And so it's just which worms you like.

And I think that a school that does not require the person to even believe in the religion that they're supposedly a minister of to get the ministerial exception. I mean, David, that's a little silly. Well, yeah, it's bad facts. It's bad facts. Now, this is one of the teachers more so than the other. The other one, and actually the ACLU, who, you know, we can discuss sort of the ACLU's evolution over the last 50 years since Skokie. But the ACLU has a very nice little amicus brief here where it says the ministerial exception, David, they're like singing your song. This is super important. We don't want courts going behind the veil, if you will, to determine the sincerity of religious beliefs or what a member really is of a church, all of that.

They said, but look at these two cases. On one of them, she is leading the students in prayer. She has taken a class on Catholicism that was required by the school. Weirdly, it looks like she didn't finish the class, but that's like a fact issue for another day. And that she probably does fit into a ministerial exception. Whereas the teacher who is not a Catholic doesn't teach anything from her own beliefs, but rather follows a workbook that the school has provided and prays alongside the students with no training, probably doesn't. And so, you know, there's a way to create good law from two different sets of facts and treat them differently. So, you know, I think that I want to go back to the bad facts make bad law position, a point. And this is something that goes right back to what I said at the beginning. I've represented and looked at a wide variety of religious organizations, and I can tell you,

so a lot of these, and I would say 90% of the religious organizations that reached out to me were pretty hardcore, serious organizations. In other words, they were the kinds that they're looking, that they're, you know, they're getting all the mailers from Alliance Defending Freedom and they're like, oh crap, our religious liberty might be under threat. What are we going to do? Very, you know, religiously conservative, theologically conservative. And I can tell you when I cracked open their employee handbooks and when I cracked open their statements of purpose, these things were not written by a single soul who had religious freedom in mind. Like they were written originally by people who are like,

hey, Bill, can you put together an employee handbook? And he like grabs like a bank's employee handbook and tailors it, you know, for the Christian school. There's an awful lot of institutions, and this is just free advice out here, y'all, if any one of you is working with a religious institution, that your original founding documents and policies were not put together with the goal of providing A, a coherent statement of faith, B, a coherent set of employment practices consistent with that statement of faith, and C, definitions of employee functions and jobs and responsibilities that advances that statement of faith. So, but then you sort of go through, these institutions went through their lives believing like, hey, we are completely institutionally shot through with Christian purpose. But if a fact finder dove into this, they would say,

and if you listeners cannot see, I'm holding up an imaginary employee handbook. Where is the religious function of your English teacher in this handbook? And the response would be, hummina, hummina, I don't know. And I feel like, you know, one of the things that is going to have to happen, regardless of how this case comes out, is religious institutions have got to go back and open the books and recognize that we're in a different world

and make sure your handbooks and policies, etc., reflect your religious purpose from start to finish. Rant over. I think that was a good rant. Okay, so let's shift from our arguments on, you know, as petitioner and respondent and instead move to like some predictions, if you will. So this came out of the Ninth Circuit. So first of all, any time in the Ninth Circuit, I don't think this will surprise anyone, took my side, if you will. Yes. The fact that the court granted cert already puts a bit of a thumb on the scale that they thought the Ninth Circuit was probably wrong, or at least there's a chance that the Ninth Circuit's wrong or else they wouldn't have taken the case, right? Right.

Right. We have the three judges, two were Clinton appointees, I know, and one Obama appointee. So so first of all, you head into this thinking there's a you know, there's already a bit of a thumb on the scale for your team, David. Second, you look back at Hosanna Tabor in 2012 and that, you know, as you said, that was nine zero. Some membership on the court has changed, but not much compared to some of these other precedents that we're looking at. I mean, 2012 was two seconds ago in Supreme Court time. Right. Now, yeah, I'm sorry. Go ahead. No, no, please. Now, here's the interesting question. So again, like the way this Hosanna Tabor test has been articulated, like the last big religious liberty case I had

before at the appellate level before I left was a ministerial exception case. And it was called, and you can look it up, Google it. We won. Google it, Alice Conlon versus InterVarsity Christian Fellowship. And so the test, it's interesting because you've articulated the test one way. The petitioners in the case have articulated it a little different. I bet they have. So the Sixth Circuit, in that case, said it's formal title, substance reflected in her title, use of the title, and the important religious functions she performed. functions she performed. The petitioners in Our Lady of Guadalupe have articulated the test as formal title, substance reflected in the title, use of the title, and the important religious function she performed. I would submit to you, Sarah, that this case, I win this case,

my side wins this case, if that's the way the test is formulated. wins this case if that's the way the test is formulated. Because notice that how important title is. And I agree with you that title's a bit silly. Now, I would say this. It is not the case. It is not the case that if you have the important religious function test, function test, that means that, and I'm getting them mixed up, the, oh gosh, which one had the less religious instruction? Beal. Beal. So if it's the important religious function test, Beal may win under the important religious function test, Because as a matter of fact, she may be able to prove that, no, I had no important religious function. So if there is a test, it doesn't mean that the religious institution

just wins all the time. It just means you win if you can meet this condition, which I think the Beal case, yikes. I would not feel great going into, I would not feel great going into that case if I was arguing for the school. Do you know who agrees with you? Who? Justice Kagan. So in Hosanna Tabor, Justice Alito and Kagan, Kagan joining, joined Justice Alito's

concurrence in which Justice Alito is making many of the points that you make so articulately. And he says, instead, courts should focus on the function performed by persons who work for religious bodies. And the ministerial exception should be tailored to this purpose. It should apply to any employee who leads a religious organization, conducts worship services, or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these functions has been compromised, then the constitutional guarantee of religious freedom protects the group's right to remove

the employee from his or her position. So maybe, actually, David, you and I are in violent agreement to some extent. It's just that we probably disagree on what that function test should be. Right. I'm going to be more lenient to the religious institution to define the religious function. whether that important point that I think was part of my first prong, which was that they're distinguishable from every other employee, meaning you can't just say every employee has this function because every employee works at our religious school. Like, you can't be tautological about it. Right. Well, you know, every single school that I advised when I said, you know, school that I advised when I said, and I would even go down to janitor, tell me about your lunch ladies, tell me about your... Yeah, I think to the point you're arguing that the lunch ladies and the janitors could fall under a ministerial function test, you have a problem. Well, and I've never seen a, none of the religious schools that I worked with articulated these individuals as

having a religious function. So we would say, what do people do in your school? What would you say you do here? Exactly. You were the bobs of religious schools. Yeah. What do you do? What do they do? What do you want them to do, and let's put that in writing, and you abide by it, and you uphold that particular standard. And it sounds so simple, Sarah. It sounds so simple. But again, most, so many institutions, when they're being built from the ground up, while they may talk about purpose statements a lot, while they may

talk about statements of faith a lot, into the nitty-gritty of the job descriptions and the employee evaluations and all that, they just kind of punt that to lawyers who are often much more experts in corporate formation than they were in First Amendment protections. And so, I promise you, all across this country are religious schools who are operating as religious schools, fully intending that all of their teachers communicate religious truth. And that's not in their corporate documents at all. And so they are incredibly vulnerable to court challenges. But yeah, I think that we might be in a little bit more agreement than it seemed at the start, because I do not believe the important religious functions test is an empty test. It's an actual test. I don't either. No, no, no. The functions

test is clearly an important test, and I agree with you that the title test is stupid for actually the majority of religions in the world. Yeah. I dare say. But I think that, for instance, requiring them to be a member of the religion and whatever, however you want to define that. I don't mean that they need to pay dues or anything else, but that they consider themselves part of the religion is part of your determination on hiring for this position probably should be relevant. And I don't, I guess for me, that's not a pure function test. That is a little bit different to me. But regardless, Monday, a week from today, we will have the argument. I'm pumped. I think we know where certainly Alito is. Kagan joined

that concurrence. Thomas also had a concurrence in that case. Thomas wrote Hosanna-Tabor. It'd be very interesting to see how he now feels about it because this is sort of a collateral attack on his opinion. You know, the interesting thing is, I could see, I could, I'm not predicting this. I'm not issuing an official advisory opinions prediction. But given the weakness of the factual problems with St. James in the Beale case, I could see a court coalescing around a functional test and ruling for one school and not the other. Or sending it back down. Or say, yeah, well, yeah, that's what I mean. Sending one back down and not the other. I could see that happening. I'm not predicting it, but I could definitely see that happening.

Okay. I'm going to make a mini prediction. Okay. good. They're going to send, they're going to create a function test and send both back down for factual finding. I think that would be, that's probably, because everything's always remanded anyway. Yes. Okay, that'll be fun.

And next, on Thursday, we'll do a Little Sisters Bigger and Poorer recap. Little Sisters 2, the sistering. The sistering. Okay. I mean, so much Supreme Court stuff for a while, guys. So if you don't like Supreme Court stuff, this pod will be about half and half for you while guys. So if you don't like Supreme court stuff, this pod will have, will be about half and half for you. Probably. Um, I was going to say, don't, don't say don't, this pod is not for you. No, it's not. Not, I would say it's, it's for you and you'll have to learn to love the Supreme court, which I think, I think, you know, our love is infectious. You can catch it like,

unlike coronavirus, even with social distancing, you can still catch our viral love for the Supreme, upcoming Supreme Court cases. Before we move on to the pop culture segment of the podcast, which is going to discuss the greatest sitcoms in American history by era, we want to thank our sponsor today, ExpressVPN. Being stuck at home these days, you probably don't think much about internet privacy on your home network. Fire up incognito mode on your browser and no one can see what you're doing, right? Wrong. Even in incognito mode, your online activity can still be traced. Even if you clear your browsing history, your

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Use the internet with confidence from your computer, tablet, or smartphone. ExpressVPN has you covered on every device. Simply tap one button and you're protected. ExpressVPN is the fastest and most trusted VPN on the market. It's rated number one by CNET, Wired, The Verge, and countless more. To protect your online activity today with the VPN, you should trust to secure your privacy, visit my special link at expressvpn.com slash opinions. That's expressvpn.com slash opinions. And you can get an extra three months free on a one-year package. Again, that's expressvpn.com slash opinions. Go to expressvpn.com to learn more. We had a conversation the other day about one of the most glorious television shows in the history of the universe, really, that we know about because we are the settled universe so far as we know.

30 Rock. Yeah. 30 Rock. Yeah. Why does it not get more love in this era of streaming and in this era of like resurrecting friends and resurrecting the office?

I think my older kids have seen the office all the way through seven, eight, nine times. And it holds up. It's not like it's dated or anything. Like I've been rewatching it and it's still great.

And also Tina Fey is, you know, becomes extremely famous. She writes bossy pants. That's like an anthem for 20 something women looking to make it in this world. Uh, Alec Baldwin, you know, great anchor piece as well. I don't know. And you know, I, I use a lot of lines from 30 Rock in my day-to-day life. Ain't no party like a Liz Lemon party because a Liz Lemon party is mandatory. My favorite of all time is, Jack, why are you in a tuxedo? It's after 6 p.m., Lemon. What do you think I am, a farmer?

It's a really well-done show overall. But we were going to expand this to other underrated comedy series. Yes. So 30 Rock to me is one of the most underrated. And like a dog with a bone, I'm not going to let go of this quite yet. I have a little bit of a theory as to why it's so underrated. It could get weird and dark on occasions. Do you remember? It definitely got weird. Yeah. Well, do you remember the episode where there was some sort of like handicapped prince from some... Oh, yes. Moldovia or whatever. Yes. That was weird and dark.

And he dies. Yeah, that was weird and dark. But Jenna's basically trying to become royalty. She wants to be Princess Grace of Monaco, but of Moldovia. And so she's willing to do anything, including potentially have intimate relations with someone who clearly is not functioning. intimate relations with someone who clearly is not functioning. Yes. Yeah. Yeah. It was an uncomfortable episode. But yeah, it had extremely offbeat humor. So here's the question. Okay. I think I love Friends, but I think Friends is overrated as a seminal television show. Parks and Rec, overrated, properly rated, underrated.

So let me make an important point on Friends because it will apply to a lot of other shows that I think listeners will be upset that I don't recognize as great TV. Laugh tracks for me are a deal breaker. It doesn't make it right. It doesn't make it fair. But for me, a laugh track is dated and it means that you can't have that weird sense of humor because like how would a laugh track audience respond to sort of a 10 minute gag? It just you know, you have to have punch lines for a laugh track. And I'm not a punch line user, perhaps.

and I'm not a punchline user, perhaps. So, okay. Again, not right, not fair, how I feel. Parks and Rec, I felt like it lived in the shadow of 30 Rock for me, as Amy Poehler often lived in the shadow of Tina Fey, actually. And so while I tried to get into Parks and Rec, I actually never did. Really? I know.

Really? Now, see, to me, Parks and Rec, if I'm going to have a modern comedy pantheon, the number one is Arrested Development. And by Arrested Development, I mean the first three seasons, the Fox seasons. Correct. Before Fox so cruelly canceled it um wait but side note did i tell you that the highlight of i don't know how many of the last few years was when i did bill marr this year that kitty from the office is married to the executive producer of bill marr so like all of a sudden i'm like walking out and kitty's in the hallway. And I was like, uh, I don't like, I am not a fangirl of Hollywood celebrities, but it was Oscar weekend. And like, there's all these real celebrities and I'm like, I'm sorry. Um, but I just have to tell you,

Kitty is one of my favorite characters of all time. And you are a national treasure. That's amazing. I love it. But I, so my Mount Rushmore of the modern comedy is Arrested Development is Washington. I would say that I put Parks and Rec is Jefferson. I have. Well, good, because I don't like Jefferson that much. That works. Yeah, I have. I have 30 Rock is Lincoln, and I will put the office as TR, as Teddy Roosevelt.

That's actually kind of delightful because, you know, I do think that the office functions as a Washington figure. It sets up this whole concept and structure. You mean Arrested Development. Sorry, Arrested Development. Yes, yes. And that 30 Rock is Lincoln. It preserves that concept. Yeah. And that Jefferson, you know, not my favorite. He's got some issues, but I understand why he's important. I respect what he did. So that actually, I don't know, there's not a lot for me to disagree with there. And, you know, Jefferson, in all fairness, had some real peak moments. Oh, yeah. Yeah. You know, his highlight, he's got a great highlight

reel. Yeah. It's just the in between the highlights where you've got a lot of problems with Jefferson. Yeah. No, I think, you know, because I grew up, listeners may not know this, but I'm a little bit older than you, Sarah. I grew up in the era of the laugh track. And I would say of the laugh track era comedies, and one of them has no laugh track. But I think the great laughugh Track era comedies are, one, The Simpsons, no Laugh Track. Then I'm going with Frasier. Frasier. Have you seen much of Frasier?

All of it. Every episode. It's glorious. Oh, yeah. It's absolutely glorious. And then I put Seinfeld and then Friends. That's my Laugh era, Mount Rushmore. I'm going to change up those last two. I did watch a lot of Seinfeld, never really, wasn't my sense of humor, that's all. And Friends, I watched all of.

I certainly enjoyed it at the time, not going to argue, but I don't know. It's almost like not a comedy. I get that it was, but I don't know. It was like you were supposed to be following Ross and Rachel, right? It was like a rom-com. It's almost a different category. MASH? What about MASH? Well, see, yeah, I guess Laugh Track era is too broad because it's like there's just these distinct eras of TV comedy. I'm also going to throw in something very specific to my generation, which is Fresh Prince of Bel-Air. Oh, strong sauce. Yes, yes. I mean, I loved my entire week was based around getting to watch Fresh Prince of Bel-Air. week was based around getting to watch Fresh Prince of Bel-Air.

So, but then sort of before, you know, before the Cheers Seinfeld really hit its stride, there was Cheers. Yeah. Yeah. You can't forget Cheers. And Cheers is sort of the George Washington of that era, if you will. No, MASH was amazing. I mean, and MASH could like really pull at the heartstrings. So it was sort of, it was also straddling that era where every sitcom also had to have a very special episode. Yes. So you had the Cosby show was in that era. Family Ties was in that era. Different Strokes. You could guarantee about one out of every five to 10 of those would be a very special episode where. Saved by the bell with her taking drugs or whatever, like speed to study more.

That was the very special saved by the bell episode that's very famous. And the funny thing is, if you go back, that phrase was always used, join us Thursday for a very special episode of Different Strokes. Which mostly meant it wasn't gonna be funny. Yes, not funny at all. Incredibly uncomfortable content.

Yes. Yeah. And we're running a little long, but speaking of very special episodes, my wife and my youngest daughter have worked all the way through Little House on the Prairie. Okay. Oh, wow. Every episode of Little House on the Prairie is a very special episode. Oh, yeah. Everyone, everyone. I mean, you're talking about race relations. You're talking about like murder, theft, all kinds of racial disputes involving African-Americans and Native Americans. I mean, like deaths of children. I mean, it is unbelievable how raw that show was. And I can't believe that that was like the show that that was totally cool for me to see. Like you can, I don't know,

David, what's on right now? Little House on the Prairie. Yeah. You can watch that. I think by the way, if you like my best friends through my life have all been Little House on the Prairie fans and I am not, it's like the definition of how to be Sarah's best friend is that it's necessary, but not sufficient. But no question, the people who are dearest to me on the planet of my female friends are all Little House on the Prairie type watchers. Oh, that's funny. That's funny. Naomi loves it. She absolutely loves it.

But there are times when Nancy has had to sort of stop. Yeah, this one's not great for us to watch. You know, to me, that means you're raising, like I think of these female best friends I'm thinking of, it means you're raising just a deeply kind-hearted, generous person. So I think that says really wonderful things about Naomi. She is actually very deeply kind-hearted and incredibly compassionate and generous. That is who she is. But one last thing. Now, beware, they could be best friends

with someone like me. The more arrested development type sense of humor. And, you know, with our powers combined, I make them worse people and they make me better people. Can I just end with one last observation? Yes. The way in which television talked about fraught issues of race and history, etc., in the 1970s

was very much more raw than the way it is talked about on television today. In fact, an excerpt from Little House trended on Twitter this weekend, dealing with this conversation about race. And I remember that episode, and I was literally uncomfortable watching it. But yeah, that was totally cool for us all to watch. I watched Team America, the movie with my parents, because I thought it was just like a puppet funny thing. Big mistake. And if you have, big mistake, big mistake.

We all went to the movie theater. I'm sitting in between my mother and father and the puppet sex scene happens and you can't leave. There's nothing you can do at that point. You just grab the seat and just hope that it's going to end soon. And if you have seen the movie, it doesn't end soon. It continues. It continues forever.

Part of me is still in that seat right now. Living between my mother and my father. My mother's favorite thing to do with Frasier or anything else when I was younger and watching some of these shows with them. If there was a joke that was bawdy of any kind, she would say, you don't even understand why that's funny. Oh, that's hilarious. Oh my goodness. Well, on the puppet sex scene note, we will stop the podcast. That's a podcast stopper, Sarah. It feels like a good place. It feels like a punctuation. But no, I think, you know, this is a rich topic, sitcom by era. Yeah.

There's hours of material that's potential there, but we won't- We're going to get feedback. We've missed some, I'm sure we've missed some important ones. We could talk about that longer than Steve can talk about Spanish wine. Oh, so true. Yeah. And more entertainingly. See you Thursday. Yes. See you Thursday. This has been the Advisory Opinions Podcast. And again, please rate us on iTunes. Always do this, Apple Podcasts and subscribe. And we will be back and we'll likely, hopefully, have some interesting Supreme Court news. Talk to you then.