WEBVTT 1 00:00:01.272 --> 00:00:03.820 SJC 129 88, 2 00:00:03.820 --> 00:00:06.453 Margaret DeWeese-Boyd V Gordon College. 3 00:00:10.000 --> 00:00:12.190 Attorney Baxter. Good morning. 4 00:00:13.070 --> 00:00:14.300 Good morning, Chief Justice Budd, 5 00:00:14.300 --> 00:00:16.540 and may it please the court. 6 00:00:16.540 --> 00:00:19.090 At issue in this case is whether plaintiff Deweese-Boyd 7 00:00:19.090 --> 00:00:21.711 has an important religious function at Gordon College, 8 00:00:21.711 --> 00:00:25.100 such that the First Amendment's ministerial exception 9 00:00:25.100 --> 00:00:26.803 applies to her employment. 10 00:00:27.870 --> 00:00:28.890 To decide that question, 11 00:00:28.890 --> 00:00:31.927 the court need look no further than her own actions. 12 00:00:31.927 --> 00:00:35.480 She admits that Gordon expected her to participate actively 13 00:00:35.480 --> 00:00:37.380 in the spiritual formation of its students 14 00:00:37.380 --> 00:00:40.429 and to help them apply biblical principles 15 00:00:40.429 --> 00:00:42.700 to their vocations. 16 00:00:42.700 --> 00:00:43.870 When she applied at Gordon, 17 00:00:43.870 --> 00:00:47.140 she touted her seminary training and mission work as 18 00:00:47.140 --> 00:00:49.200 of particular benefit to students, 19 00:00:49.200 --> 00:00:52.333 and promised to provide a distinctly Christian education. 20 00:00:52.333 --> 00:00:55.550 In seeking advancements, she consistently described her work 21 00:00:55.550 --> 00:00:59.810 as integrally Christian, as furthering the kingdom of God, 22 00:00:59.810 --> 00:01:02.111 and as participation in the ministry 23 00:01:02.111 --> 00:01:04.293 of Christian reconciliation. 24 00:01:05.140 --> 00:01:08.142 Student reviews confirmed that she did a great job, 25 00:01:08.142 --> 00:01:10.320 incorporating religion in her lessons 26 00:01:10.320 --> 00:01:13.210 and that she was extremely effective in awakening 27 00:01:13.210 --> 00:01:15.410 and strengthening their Christian faith. 28 00:01:15.410 --> 00:01:16.243 Even now-- 29 00:01:16.243 --> 00:01:19.791 So, Mister Baxter, these are all good points 30 00:01:19.791 --> 00:01:23.607 and we're going to delve into them. (mumbles) 31 00:01:25.558 --> 00:01:28.147 and even our case with (mumbles). 32 00:01:30.107 --> 00:01:33.680 I'm going to suggest that you don't have a rigid test, 33 00:01:34.782 --> 00:01:37.910 I don't know how they use these words. 34 00:01:37.910 --> 00:01:40.400 It's not rigid test, it's more of a totality 35 00:01:40.400 --> 00:01:42.740 of the circumstance we can get at 36 00:01:42.740 --> 00:01:45.450 whether or not this particular teacher 37 00:01:45.450 --> 00:01:47.234 is entrusted with the responsibility 38 00:01:47.234 --> 00:01:52.234 of instructing students in whatever the faith might be. 39 00:01:52.860 --> 00:01:55.947 And plaintiff's point (mumbles). 40 00:01:57.259 --> 00:02:00.420 And they're going to marshal with that 41 00:02:01.310 --> 00:02:03.858 just the opposite way. 42 00:02:03.858 --> 00:02:05.770 We're not going to take time to go through it. 43 00:02:05.770 --> 00:02:08.820 I'm sure the plaintiff's attorney will. 44 00:02:08.820 --> 00:02:13.820 But just by way of example, teaching sociology, 45 00:02:14.010 --> 00:02:18.460 she's not teaching anything about religious worship 46 00:02:18.460 --> 00:02:22.599 as you do in the three other cases I mentioned. 47 00:02:22.599 --> 00:02:24.605 And there's a long list going the other way. 48 00:02:24.605 --> 00:02:29.006 I'm not going to go through it. 49 00:02:29.006 --> 00:02:33.488 So when we are trying to figure out what it means 50 00:02:33.488 --> 00:02:36.953 whether a teacher is entrusted with responsibility 51 00:02:36.953 --> 00:02:39.840 for instructing students in faith. 52 00:02:39.840 --> 00:02:43.720 And we have to take into account the AG's brief 53 00:02:43.720 --> 00:02:45.813 of religion or is what it's about. 54 00:02:47.440 --> 00:02:51.184 Where do we look to for (mumbles) 55 00:02:51.184 --> 00:02:53.670 How do we grab onto something here? 56 00:02:55.691 --> 00:02:57.900 So in Our Lady of Guadalupe, 57 00:02:57.900 --> 00:02:59.870 the court said in those situations you look 58 00:02:59.870 --> 00:03:02.170 to the school's expectations. 59 00:03:02.170 --> 00:03:04.170 Is the school's expectation that they're teaching 60 00:03:04.170 --> 00:03:07.230 in a devotional manner in a way that increases faith 61 00:03:07.230 --> 00:03:09.230 and conveys the faith? 62 00:03:09.230 --> 00:03:12.230 Or are they just being asked to teach about religion? 63 00:03:12.230 --> 00:03:13.226 Now, the court acknowledged that 64 00:03:13.226 --> 00:03:14.810 if they're just teaching about religion, 65 00:03:14.810 --> 00:03:16.910 that's not sufficient to trigger the ministerial exception 66 00:03:16.910 --> 00:03:18.563 but here there's no question 67 00:03:18.563 --> 00:03:20.920 that plaintiff was teaching in a devotional manner. 68 00:03:20.920 --> 00:03:23.010 And she herself acknowledged that. 69 00:03:23.010 --> 00:03:26.400 She acknowledges that 149 through 50 of the appendix 70 00:03:26.400 --> 00:03:28.010 that that was the expectation 71 00:03:28.010 --> 00:03:29.730 that she would be forming students in the faith, 72 00:03:29.730 --> 00:03:32.258 helping them discern how to apply Christian teachings 73 00:03:32.258 --> 00:03:34.377 in their chosen careers. 74 00:03:34.377 --> 00:03:36.183 That she actually did that. 75 00:03:36.183 --> 00:03:38.959 In all of her reviews she described her work 76 00:03:38.959 --> 00:03:41.820 as teaching in a specifically Christian way. 77 00:03:41.820 --> 00:03:44.660 She said that she chose social work over political science 78 00:03:44.660 --> 00:03:47.250 because it was value assertive, not value neutral. 79 00:03:47.250 --> 00:03:50.543 And she could work to reform society in a Christian way. 80 00:03:50.543 --> 00:03:52.860 She said, you can, I could do scholarship 81 00:03:52.860 --> 00:03:54.380 in a Christian way that you can't do 82 00:03:54.380 --> 00:03:55.717 at a secular university. 83 00:03:55.717 --> 00:03:58.550 And then the student reviews of course confirmed 84 00:03:58.550 --> 00:04:00.590 that they perceived her as doing this 85 00:04:00.590 --> 00:04:03.210 in a way that strengthen their faith. 86 00:04:03.210 --> 00:04:04.389 And in those situations, the court has to defer-- 87 00:04:04.389 --> 00:04:06.800 Can I ask a question about that? 88 00:04:06.800 --> 00:04:09.252 So if she were teaching math, 89 00:04:09.252 --> 00:04:13.190 it's my understanding that you would be arguing even 90 00:04:13.190 --> 00:04:15.487 if she were a math teacher, 91 00:04:15.487 --> 00:04:19.700 you would still be covered by the ministry except, 92 00:04:19.700 --> 00:04:22.200 because she's (mumbles) instance 93 00:04:23.926 --> 00:04:28.926 and even the math (mumbles) am I misreading your brief-- 94 00:04:30.316 --> 00:04:31.515 So to conc... 95 00:04:31.515 --> 00:04:34.320 (mumbles) that people who are teaching math 96 00:04:34.320 --> 00:04:36.070 or (mumbles) engineering (mumbles). 97 00:04:40.592 --> 00:04:44.040 Under the ministerial exception, 98 00:04:44.040 --> 00:04:47.240 each case has to be considered on its own merits. 99 00:04:47.240 --> 00:04:49.340 And if the teacher is teaching 100 00:04:49.340 --> 00:04:52.120 a more secular subject like math or engineering, 101 00:04:52.120 --> 00:04:54.020 it's going to be a much harder case 102 00:04:54.020 --> 00:04:57.650 than a subject where there is an inherently value-laden 103 00:04:57.650 --> 00:04:59.900 and as plaintiff herself described it. 104 00:04:59.900 --> 00:05:01.880 Now there may be some religious institutions 105 00:05:01.880 --> 00:05:03.370 where there's a combination of roles 106 00:05:03.370 --> 00:05:07.070 or professors take on voluntarily to teach a religion class. 107 00:05:07.070 --> 00:05:08.198 There may be ways that they do that. 108 00:05:08.198 --> 00:05:10.120 Incorporate religion to their classroom 109 00:05:10.120 --> 00:05:11.640 is going to be a much harder case 110 00:05:11.640 --> 00:05:12.929 in a subject like math or engineering 111 00:05:12.929 --> 00:05:14.659 than in the case of a social worker 112 00:05:14.659 --> 00:05:18.080 who touted her religious experience, 113 00:05:18.080 --> 00:05:20.810 her seminary training, her mission experience. 114 00:05:20.810 --> 00:05:22.140 The group's got court held 115 00:05:22.140 --> 00:05:24.337 that we're a plaintiff touts, their religious experience, 116 00:05:24.337 --> 00:05:25.580 that that's an indication 117 00:05:25.580 --> 00:05:28.157 of the ministerial exception applies. 118 00:05:28.157 --> 00:05:32.120 If you have to capture adequate can I asked you, 119 00:05:32.120 --> 00:05:35.370 one of the Amicus briefs from the AAUP 120 00:05:35.370 --> 00:05:37.830 and they're very concerned, 121 00:05:37.830 --> 00:05:40.370 rule number one about academic freedom. 122 00:05:40.370 --> 00:05:44.043 But also this idea that as just this chapter says, 123 00:05:45.104 --> 00:05:46.450 the math teacher could be deemed a minister 124 00:05:46.450 --> 00:05:47.549 under the circumstance. 125 00:05:47.549 --> 00:05:50.290 And you may say now 126 00:05:50.290 --> 00:05:53.390 that everything has to be looked at on their own facts. 127 00:05:53.390 --> 00:05:55.039 But in fact the record in the case shows 128 00:05:55.039 --> 00:06:00.039 that the college is contemplating at this point 129 00:06:00.320 --> 00:06:01.860 that all the teachers are falling 130 00:06:01.860 --> 00:06:03.177 under the ministerial exception 131 00:06:03.177 --> 00:06:05.960 and the teachers are quite concerned about. 132 00:06:05.960 --> 00:06:08.164 So it's not an abstract question. 133 00:06:08.164 --> 00:06:11.631 There's no question that Gordon College expects all 134 00:06:11.631 --> 00:06:14.970 of it's employees to play important religious roles 135 00:06:14.970 --> 00:06:17.030 to help students convey, 136 00:06:17.030 --> 00:06:18.780 learn the faith when they interact with them. 137 00:06:18.780 --> 00:06:20.420 But the Gru's court or the I'm sorry, 138 00:06:20.420 --> 00:06:22.520 the Our Lady Court held that, 139 00:06:22.520 --> 00:06:24.520 there has has to be a key role 140 00:06:24.520 --> 00:06:26.590 in conveying the faith, which would be for example, 141 00:06:26.590 --> 00:06:28.420 teaching the principles of the doctrine, 142 00:06:28.420 --> 00:06:30.480 helping students learn how to apply them. 143 00:06:30.480 --> 00:06:32.740 And there has to be evidence that it's actually happening. 144 00:06:32.740 --> 00:06:34.106 So I think it is... 145 00:06:34.106 --> 00:06:35.680 What do you mean that there 146 00:06:35.680 --> 00:06:37.684 has to be evidence exactly happening? 147 00:06:37.684 --> 00:06:40.760 Well there has to be evidence that the function 148 00:06:40.760 --> 00:06:43.097 actually involves conveying the religious teachings so-- 149 00:06:43.097 --> 00:06:44.460 But your argument really is 150 00:06:44.460 --> 00:06:46.890 that she's not conveying the religious material 151 00:06:46.890 --> 00:06:48.430 that you want her to convey. 152 00:06:48.430 --> 00:06:50.370 So, so it's not in a sense happening 153 00:06:50.370 --> 00:06:51.528 under that reasoning, isn't it? 154 00:06:51.528 --> 00:06:53.210 That's not correct, she was... 155 00:06:53.210 --> 00:06:56.470 That was not ever Gordon's conclusion 156 00:06:56.470 --> 00:06:57.600 that she wasn't doing a good job. 157 00:06:57.600 --> 00:06:59.430 In fact her reviews were consistent 158 00:06:59.430 --> 00:07:00.573 that she was doing the gosh, she wasn't-- 159 00:07:00.573 --> 00:07:03.391 She wasn't teaching consistent with Gordon's principles. 160 00:07:03.391 --> 00:07:05.121 No she was denied promotion. 161 00:07:05.121 --> 00:07:08.230 If you look at the reasons why she denied promotion, 162 00:07:08.230 --> 00:07:10.990 it was because she had not performed any scholar, 163 00:07:10.990 --> 00:07:13.174 she had not published anything since 2008, 164 00:07:13.174 --> 00:07:16.270 and she was cited as not adequate performing 165 00:07:16.270 --> 00:07:17.205 within the... 166 00:07:17.205 --> 00:07:20.330 providing internal institutional service. 167 00:07:20.330 --> 00:07:22.059 So then this is not a ministerial, 168 00:07:22.059 --> 00:07:25.190 I mean it's not really ministerial exception case, 169 00:07:25.190 --> 00:07:28.633 just basically a basic academic promotion. 170 00:07:29.660 --> 00:07:30.960 Well when an employer-- (Cypher) And you really not 171 00:07:30.960 --> 00:07:33.795 in that area, is that true? 172 00:07:33.795 --> 00:07:35.270 I disagree Your Honor. 173 00:07:35.270 --> 00:07:36.576 The ministerial exception when 174 00:07:36.576 --> 00:07:39.560 an employee plays a ministerial role 175 00:07:39.560 --> 00:07:41.610 or has an important religious role, 176 00:07:41.610 --> 00:07:43.767 the ministerial exception allows... 177 00:07:43.767 --> 00:07:46.120 Bars the court from interfering 178 00:07:46.120 --> 00:07:49.150 in the employment decision regardless of the reason 179 00:07:49.150 --> 00:07:51.938 for the adverse employment action. 180 00:07:51.938 --> 00:07:55.620 Now the broader religious autonomy doctrine 181 00:07:55.620 --> 00:07:58.430 would apply anytime there's a religious reason, 182 00:07:58.430 --> 00:08:02.840 even if someone did not have a religious role. 183 00:08:02.840 --> 00:08:04.462 But here at-- I'm confused (mumbles). 184 00:08:04.462 --> 00:08:08.156 And I didn't really appreciate it because (mumbles). 185 00:08:08.156 --> 00:08:11.420 You are saying he is doing a good job 186 00:08:11.420 --> 00:08:14.363 in her minesterial responsibilities 187 00:08:14.363 --> 00:08:17.740 but you're allowed to terminate her 188 00:08:17.740 --> 00:08:21.430 because she is doing an inadequate job 189 00:08:21.430 --> 00:08:23.790 or academic responsibilities separate 190 00:08:23.790 --> 00:08:26.690 and apart from the ministerial responsibilities (mumbles). 191 00:08:28.980 --> 00:08:31.070 That is... 192 00:08:31.070 --> 00:08:33.750 Your Honor, that is the ruling in Hosanna-Tabor 193 00:08:33.750 --> 00:08:35.750 and the Our Lady of Guadalupe cases, 194 00:08:35.750 --> 00:08:36.710 where the court said that 195 00:08:36.710 --> 00:08:40.990 if an employee plays an important religious function 196 00:08:40.990 --> 00:08:43.440 at the university, the establishment clause 197 00:08:43.440 --> 00:08:47.060 and the free exercise clause create a structural bar 198 00:08:47.060 --> 00:08:50.540 against court's interference and who they select 199 00:08:50.540 --> 00:08:53.510 and how they supervise those who are performing 200 00:08:53.510 --> 00:08:54.630 these important religious roles. 201 00:08:54.630 --> 00:08:56.432 And the court that those roles especially include, 202 00:08:56.432 --> 00:08:58.763 leading an organization, conducting worship 203 00:08:58.763 --> 00:09:00.890 or conveying the faith. 204 00:09:00.890 --> 00:09:02.981 I just want (mumbles) 205 00:09:02.981 --> 00:09:05.570 but were those cases were... 206 00:09:05.570 --> 00:09:07.341 Those cases were the performance 207 00:09:07.341 --> 00:09:08.907 of the ministerial (mumbles), 208 00:09:11.200 --> 00:09:14.217 you're sort of suggesting that not here 209 00:09:14.217 --> 00:09:17.391 that he did a great job on missionary 210 00:09:17.391 --> 00:09:19.107 or the ministerial work 211 00:09:19.107 --> 00:09:22.510 but it wasn't a very good enough stroller to get promoted. 212 00:09:22.510 --> 00:09:25.080 Do we have to treat this a little differently 213 00:09:25.080 --> 00:09:29.720 if the ministerial issue is not even in play, 214 00:09:29.720 --> 00:09:33.930 I mean (mumbles) the US Supreme Court that exact issue? 215 00:09:33.930 --> 00:09:35.120 Yes, it did Your Honor, 216 00:09:35.120 --> 00:09:37.200 and Our Lady of Guadalupe specifically said 217 00:09:37.200 --> 00:09:38.650 that there a religious-- 218 00:09:38.650 --> 00:09:40.260 Could you give me a page reference for that? 219 00:09:40.260 --> 00:09:42.172 I don't have the page reference on of... 220 00:09:42.172 --> 00:09:44.704 But Our Lady does say that religious reason 221 00:09:44.704 --> 00:09:47.600 for termination is not necessary. 222 00:09:47.600 --> 00:09:49.540 And in both Hosanna-Tabor and Our Lady, 223 00:09:49.540 --> 00:09:52.270 the allegations were non-religious allegations 224 00:09:52.270 --> 00:09:54.532 and the school, the termination decisions were made 225 00:09:54.532 --> 00:09:57.230 not directly for religious reasons. 226 00:09:57.230 --> 00:09:59.460 But when, for example, if you have a pastor, 227 00:09:59.460 --> 00:10:00.900 it doesn't matter what the reason is, 228 00:10:00.900 --> 00:10:03.280 the ministerial exception forbids the court 229 00:10:03.280 --> 00:10:04.510 from interfering in that decision. 230 00:10:04.510 --> 00:10:06.007 And that's true for any religious institution 231 00:10:06.007 --> 00:10:08.870 for what are Our Lady said, 232 00:10:08.870 --> 00:10:09.850 any employer who... 233 00:10:09.850 --> 00:10:12.400 Any employee who plays a key religious role 234 00:10:12.400 --> 00:10:15.173 including serving as a messenger of the faith. 235 00:10:16.370 --> 00:10:17.773 But not your math teacher? 236 00:10:18.820 --> 00:10:19.902 That's correct Your Honor. Okay. 237 00:10:19.902 --> 00:10:24.902 One other question that I'm concerned about with this is, 238 00:10:25.478 --> 00:10:29.334 it's a very tricky issue in the circumstances 239 00:10:29.334 --> 00:10:32.440 of your case of this particular case, 240 00:10:32.440 --> 00:10:34.845 because embedded throughout everything 241 00:10:34.845 --> 00:10:37.469 is our agreements that you signed, 242 00:10:37.469 --> 00:10:41.560 or codes of conduct that were required of everyone. 243 00:10:41.560 --> 00:10:44.950 So there's such a heavy influence here 244 00:10:44.950 --> 00:10:47.504 of obligation on the part of the scriptures, 245 00:10:47.504 --> 00:10:49.150 on the part of the students, 246 00:10:49.150 --> 00:10:51.787 on the part of the staff to hear this. 247 00:10:51.787 --> 00:10:55.440 I don't understand how you make the distinction 248 00:10:56.740 --> 00:10:59.210 of how everybody in this school 249 00:10:59.210 --> 00:11:02.358 is not under the ministerial exception. 250 00:11:02.358 --> 00:11:03.880 Well again, it depends 251 00:11:03.880 --> 00:11:06.200 on what they are doing in the classroom. 252 00:11:06.200 --> 00:11:07.270 I mean, there are-- 253 00:11:07.270 --> 00:11:08.470 But they're supposed to be, 254 00:11:08.470 --> 00:11:10.860 according to what I understood it in the classroom 255 00:11:10.860 --> 00:11:15.663 no matter what you're teaching in integrating their faith. 256 00:11:16.550 --> 00:11:20.333 So why aren't all the teachers then ministers? 257 00:11:20.333 --> 00:11:23.130 If a teachers were effective at doing that at a seminary 258 00:11:23.130 --> 00:11:25.920 for example, that you might be teaching a range of subjects 259 00:11:25.920 --> 00:11:27.490 but all of those professors 260 00:11:27.490 --> 00:11:30.030 are there to prepare people to serve in the ministry. 261 00:11:30.030 --> 00:11:33.075 And Gordon College's own documentation says it's there 262 00:11:33.075 --> 00:11:34.920 to prepare students for ministry 263 00:11:34.920 --> 00:11:36.844 for special forms of Christian work. 264 00:11:36.844 --> 00:11:40.530 But it's going to depend on a case by case basis, 265 00:11:40.530 --> 00:11:41.960 much more difficult in a situation 266 00:11:41.960 --> 00:11:43.100 where teaching secular subjects 267 00:11:43.100 --> 00:11:45.288 as opposed to a value-laden subject 268 00:11:45.288 --> 00:11:49.443 by an employee who touted her religious experience. 269 00:11:49.443 --> 00:11:50.510 I'm sorry? Yeah I was just thinking 270 00:11:50.510 --> 00:11:52.867 about value-laden, value-laden (mumbles). 271 00:11:55.791 --> 00:11:57.790 Is that what you're teaching then, 272 00:11:57.790 --> 00:12:01.448 that it's a value-Laden subject? 273 00:12:01.448 --> 00:12:04.250 That is an important distinction of value-laden subject 274 00:12:04.250 --> 00:12:07.610 and an employee who touted her religious experience. 275 00:12:07.610 --> 00:12:09.400 She used that to train students. 276 00:12:09.400 --> 00:12:10.473 The students said that they were in the classroom, 277 00:12:10.473 --> 00:12:11.680 that their faith was strengthening-- 278 00:12:11.680 --> 00:12:13.053 So for example if I could stop you. 279 00:12:13.053 --> 00:12:17.376 So if there's a Biology teacher doing stem cell research, 280 00:12:17.376 --> 00:12:21.080 that might be a secular subject 281 00:12:21.080 --> 00:12:25.010 as to which there's value-laden implications 282 00:12:25.010 --> 00:12:27.950 and so that person would be a minister? 283 00:12:27.950 --> 00:12:29.270 There would have to be evidence 284 00:12:29.270 --> 00:12:30.950 that the professor was there, 285 00:12:30.950 --> 00:12:34.990 was using her teaching to convey the faith 286 00:12:34.990 --> 00:12:35.828 and to form students in the faith. 287 00:12:35.828 --> 00:12:36.661 which is going to be again, 288 00:12:36.661 --> 00:12:39.274 I think much more difficult in the situation 289 00:12:39.274 --> 00:12:44.020 of a Bio-Sciences professor than an a social site 290 00:12:44.020 --> 00:12:46.694 where professor DeWeese-Boyd herself said that, 291 00:12:46.694 --> 00:12:50.848 everything she did was working towards reforming, 292 00:12:50.848 --> 00:12:54.189 applying Christian principles to reform society, 293 00:12:54.189 --> 00:12:57.040 to build the kingdom of God. 294 00:12:57.040 --> 00:12:57.960 She saw it. 295 00:12:57.960 --> 00:12:59.381 Gordon expected her to... 296 00:12:59.381 --> 00:13:01.660 That's important as in Our Lady, 297 00:13:01.660 --> 00:13:03.400 that's important the school's expectations 298 00:13:03.400 --> 00:13:05.290 but also that she embraced those expectations 299 00:13:05.290 --> 00:13:06.960 and specifically brought her religious training 300 00:13:06.960 --> 00:13:11.840 and experience to bear to accomplish that mission. 301 00:13:11.840 --> 00:13:15.496 I really didn't find this differentiation 302 00:13:15.496 --> 00:13:20.496 in your brief (mumbles) thought that there was a lot 303 00:13:20.570 --> 00:13:23.940 of reliance on the integration requirement 304 00:13:23.940 --> 00:13:26.390 but for all teachers integrate Christian principles 305 00:13:26.390 --> 00:13:29.230 to scholarship but there is a lot 306 00:13:29.230 --> 00:13:32.050 of reliance on the faculty handbook 307 00:13:32.050 --> 00:13:36.313 where everyone's expected to actively engage 308 00:13:36.313 --> 00:13:39.283 in spiritual formation (mumbles) 309 00:13:39.283 --> 00:13:44.283 biblical and faith away at the (mumbles) 310 00:13:44.674 --> 00:13:46.583 and that would include a math teacher 311 00:13:46.583 --> 00:13:49.510 and this limiting principle that you are articulating now 312 00:13:50.934 --> 00:13:53.625 that seems to fold into some 313 00:13:53.625 --> 00:13:58.625 of the language (mumbles) Our Lady of Guadalupe. 314 00:13:58.750 --> 00:14:01.563 I just didn't see that in your brief. 315 00:14:03.440 --> 00:14:05.659 That's eliminating principle you're articulating. 316 00:14:05.659 --> 00:14:07.730 Well I think Your Honor it's inherent in all 317 00:14:07.730 --> 00:14:09.620 of our arguments and especially in the Our Lady 318 00:14:09.620 --> 00:14:12.270 and Hosanna-Tabor citations that the court said 319 00:14:12.270 --> 00:14:15.723 that the actual performance is at the heart 320 00:14:15.723 --> 00:14:18.120 of what defines the ministerial exception. 321 00:14:18.120 --> 00:14:20.260 And so you have to look at the actual performance. 322 00:14:20.260 --> 00:14:22.070 Now it also just point out that the court made 323 00:14:22.070 --> 00:14:23.940 a significant legal error in this case 324 00:14:23.940 --> 00:14:25.450 by applying the wrong legal standard. 325 00:14:25.450 --> 00:14:27.750 It reached out and applied an outdated standard 326 00:14:27.750 --> 00:14:29.140 from Kentucky where it said you had 327 00:14:29.140 --> 00:14:31.580 to have formal liturgical functions. 328 00:14:31.580 --> 00:14:33.770 And in Our Lady of the court specifically rejected that. 329 00:14:33.770 --> 00:14:38.124 So to be fair, Our Lady came out after this case, right? 330 00:14:38.124 --> 00:14:39.330 That's correct. 331 00:14:39.330 --> 00:14:40.880 But the standard that it applied to us, 332 00:14:40.880 --> 00:14:41.980 and in fact the court because 333 00:14:41.980 --> 00:14:43.480 of the wrong standard it applied if you look 334 00:14:43.480 --> 00:14:45.474 at footnote 16 of its opinion, 335 00:14:45.474 --> 00:14:49.800 it failed to consider evidence of plaintiff's performance, 336 00:14:49.800 --> 00:14:51.280 saying that it was not relevant 337 00:14:51.280 --> 00:14:53.022 at this stage of the proceeding. 338 00:14:53.022 --> 00:14:55.261 That was a mistake of law-- (mumbles) both parties agree 339 00:14:55.261 --> 00:14:56.263 to bifurcation, 340 00:14:56.263 --> 00:14:58.750 didn't you both agree to bifurcate this issue? 341 00:14:58.750 --> 00:15:00.400 Absolutely agreed to bifurcation, 342 00:15:00.400 --> 00:15:02.080 but the issue of bifurcation was what 343 00:15:02.080 --> 00:15:04.798 was the evidence of ministerial performance. 344 00:15:04.798 --> 00:15:07.630 And her performance was evidence of that. 345 00:15:07.630 --> 00:15:11.150 The court admitted the evidence and it was not hearsay 346 00:15:11.150 --> 00:15:13.640 but he said he found it not helpful 347 00:15:13.640 --> 00:15:15.804 because performance was not relevant 348 00:15:15.804 --> 00:15:18.660 at this stage of the litigation, which was a legal error. 349 00:15:18.660 --> 00:15:20.070 So at the very least the court 350 00:15:20.070 --> 00:15:22.600 has to apply the correct legal standard. 351 00:15:22.600 --> 00:15:25.780 And we think there's enough for Gordon College to win 352 00:15:25.780 --> 00:15:26.950 into that correct legal standard, 353 00:15:26.950 --> 00:15:29.184 but the very least the court should remand 354 00:15:29.184 --> 00:15:32.610 and direct the superior court to consider all 355 00:15:32.610 --> 00:15:37.189 of the relevant evidence of her ministerial status. 356 00:15:37.189 --> 00:15:40.374 (Dalila mumbles) 357 00:15:40.374 --> 00:15:43.010 Your Honor I don't believe that's necessary 358 00:15:43.010 --> 00:15:46.380 for the court to rule in Gordon College's favor 359 00:15:46.380 --> 00:15:48.130 because of the expectations 360 00:15:48.130 --> 00:15:50.070 and plaintiff's embrace of those expectations 361 00:15:50.070 --> 00:15:52.980 and the student reviews which show what she did. 362 00:15:52.980 --> 00:15:54.963 But the court said he wasn't considering all 363 00:15:54.963 --> 00:15:56.168 of that evidence. 364 00:15:56.168 --> 00:15:58.240 And he applied a standard that 365 00:15:58.240 --> 00:16:00.239 is outdated now under Our Lady. 366 00:16:00.239 --> 00:16:03.623 And so at the very least there should be a reconsideration 367 00:16:03.623 --> 00:16:05.833 under the correct legal standard. 368 00:16:06.690 --> 00:16:09.687 Can I ask what, is your holding essentially 369 00:16:09.687 --> 00:16:13.739 that you want us to adopt that professor 370 00:16:13.739 --> 00:16:18.739 in an evangelical college teaching a value-laden course 371 00:16:19.078 --> 00:16:22.730 or value-laden subject from a... 372 00:16:24.110 --> 00:16:28.630 It just (mumbles) is covered by the ministerial exception. 373 00:16:28.630 --> 00:16:31.970 I'm just trying to get a sense where the holding is. 374 00:16:31.970 --> 00:16:34.570 Its moving from the brief a little bit 375 00:16:34.570 --> 00:16:36.373 as Justice Lowy pointed out. 376 00:16:37.230 --> 00:16:39.047 So, is the holding (mumbles). 377 00:16:40.163 --> 00:16:43.176 A professor of the evangelical college, 378 00:16:43.176 --> 00:16:46.020 teaching a value-laden course 379 00:16:46.020 --> 00:16:50.643 from a religious perspective covered 380 00:16:50.643 --> 00:16:52.750 by the ministerial exception, 381 00:16:52.750 --> 00:16:54.270 is that what you're asking us to hold? 382 00:16:54.270 --> 00:16:55.670 Because I'm just trying to get a sense 383 00:16:55.670 --> 00:16:57.110 of what you're asking us to rule, 384 00:16:57.110 --> 00:17:00.188 because this thing is hard to pin down. 385 00:17:00.188 --> 00:17:01.780 We're asking Your Honor 386 00:17:01.780 --> 00:17:04.960 for even a narrower ruling that this plaintiff 387 00:17:04.960 --> 00:17:09.940 because of her function, her activities in the classroom, 388 00:17:09.940 --> 00:17:13.560 the evidence that students saw her as performing a minister. 389 00:17:13.560 --> 00:17:15.145 That they were strengthened in their faith that they left. 390 00:17:15.145 --> 00:17:18.140 They said that she was an integral part 391 00:17:18.140 --> 00:17:19.951 of a department that incorporated biblical principles 392 00:17:19.951 --> 00:17:22.592 into every classroom, that she was instrumental 393 00:17:22.592 --> 00:17:25.860 in developing a intellectual foundation 394 00:17:25.860 --> 00:17:27.702 of a mature Christian faith. 395 00:17:27.702 --> 00:17:30.790 She embraced that it was consistent 396 00:17:30.790 --> 00:17:33.430 with Gordon's expectations and the evidence shows. 397 00:17:33.430 --> 00:17:35.953 And so we're just asking that this plaintiff 398 00:17:35.953 --> 00:17:40.470 be identified as having an important religious role 399 00:17:40.470 --> 00:17:41.942 that triggers the ministerial exception. 400 00:17:41.942 --> 00:17:45.350 I have two more questions if it's okay with the chief. 401 00:17:45.350 --> 00:17:50.080 One is can you address one of the Amicus races, 402 00:17:50.080 --> 00:17:51.550 that there's really a difference 403 00:17:51.550 --> 00:17:53.810 between elementary school or middle school 404 00:17:53.810 --> 00:17:56.863 or even high school teachers and college professors. 405 00:17:56.863 --> 00:17:58.380 Can you address that argument 406 00:17:58.380 --> 00:18:01.653 that we shouldn't extend it that far to college professors? 407 00:18:02.540 --> 00:18:03.573 So Our Lady applies 408 00:18:03.573 --> 00:18:06.370 to all religious educational institutions 409 00:18:06.370 --> 00:18:07.830 where the court said that the whole purpose 410 00:18:07.830 --> 00:18:09.970 of a religious educational institution 411 00:18:09.970 --> 00:18:11.430 is to form students in the faith. 412 00:18:11.430 --> 00:18:13.990 It doesn't matter if-- But Our Lady was dealing 413 00:18:13.990 --> 00:18:17.968 with high school or was it middle school something. 414 00:18:17.968 --> 00:18:19.380 Elementary school. Elementary school. 415 00:18:19.380 --> 00:18:21.010 So there's certainly a difference 416 00:18:21.010 --> 00:18:22.663 in Our Lady and Hosanna-Tabor. 417 00:18:22.663 --> 00:18:25.240 In both cases the schools were Catholic schools, 418 00:18:25.240 --> 00:18:27.360 so different faith tradition teaching a different age. 419 00:18:27.360 --> 00:18:29.145 So they approached the teaching differently. 420 00:18:29.145 --> 00:18:32.080 Both of those cases, there was teaching 421 00:18:32.080 --> 00:18:34.120 by rote memorization at the catechism 422 00:18:34.120 --> 00:18:37.270 and participation in formal rituals. 423 00:18:37.270 --> 00:18:40.440 At a college level students have already affirmed, 424 00:18:40.440 --> 00:18:41.610 signed a statement of faith 425 00:18:41.610 --> 00:18:44.240 that they share Gordon's conviction 426 00:18:44.240 --> 00:18:46.270 in the evangelical Protestant faith. 427 00:18:46.270 --> 00:18:48.340 And it's a much more sophisticated way of teaching 428 00:18:48.340 --> 00:18:52.030 but this court, a court can't decide that one level... 429 00:18:52.030 --> 00:18:53.870 One religious institutions' way 430 00:18:53.870 --> 00:18:55.080 of teaching is better than another. 431 00:18:55.080 --> 00:18:57.570 That would entangle the court in religious affairs of the... 432 00:18:57.570 --> 00:18:58.403 I understand that then. 433 00:18:58.403 --> 00:19:01.799 And then my final question, I think is, 434 00:19:01.799 --> 00:19:05.367 it keeps flipping my mind but (chuckles) I want to ask. 435 00:19:05.367 --> 00:19:10.367 With regard to what you are alleging, 436 00:19:10.507 --> 00:19:13.657 what (mumbles) moment. 437 00:19:13.657 --> 00:19:16.730 She alleges she's discharged... 438 00:19:16.730 --> 00:19:21.235 Or she was not promoted because of discriminatory reasons. 439 00:19:21.235 --> 00:19:24.800 Your allegation or response to that is no that's not true, 440 00:19:24.800 --> 00:19:27.083 you're deficient filing, 441 00:19:27.083 --> 00:19:28.520 right? Correct. 442 00:19:28.520 --> 00:19:31.220 And then we reached the stage of 443 00:19:31.220 --> 00:19:34.750 regardless of those two allegations that are differing, 444 00:19:34.750 --> 00:19:37.220 we're now litigating this question 445 00:19:37.220 --> 00:19:39.647 of whether she falls within the ministerial exception. 446 00:19:39.647 --> 00:19:44.647 And if she does, that will also eliminate any claim 447 00:19:45.107 --> 00:19:48.853 that she can't even defend that this is a deficient filing, 448 00:19:48.853 --> 00:19:50.260 is that correct? 449 00:19:50.260 --> 00:19:51.093 That's correct. 450 00:19:51.093 --> 00:19:52.694 The actual merits of the reason for her, 451 00:19:52.694 --> 00:19:56.870 you know not being promoted, she's still a tenured professor 452 00:19:56.870 --> 00:19:58.193 just not promoted to full professor. 453 00:19:58.193 --> 00:20:01.220 The merits of that decision are not before the court. 454 00:20:01.220 --> 00:20:02.478 All that's before it is whether 455 00:20:02.478 --> 00:20:04.848 as someone who played an important religious role, 456 00:20:04.848 --> 00:20:06.260 the ministerial exception applies. 457 00:20:06.260 --> 00:20:08.840 And that would apply even to our contract claims 458 00:20:08.840 --> 00:20:10.400 where courts have said where you have 459 00:20:10.400 --> 00:20:12.518 are seeking the same relief for the same reasons 460 00:20:12.518 --> 00:20:15.330 without a specific provision that suggests any waiver 461 00:20:15.330 --> 00:20:16.367 that the ministerial exception applies 462 00:20:16.367 --> 00:20:18.795 to the breach of contract claims as well. 463 00:20:18.795 --> 00:20:21.140 And, you know the court's decisions 464 00:20:21.140 --> 00:20:24.100 and Petrus court, Gru's court even this court's own decision 465 00:20:24.100 --> 00:20:26.370 in Williams vs Episcopal diocese all indicate 466 00:20:26.370 --> 00:20:29.670 that you can't, when there's a religious reason 467 00:20:29.670 --> 00:20:32.139 or a religious function involved, 468 00:20:32.139 --> 00:20:36.297 the courts won't look to, you know, internal handbooks 469 00:20:36.297 --> 00:20:37.654 of religious institutions 470 00:20:37.654 --> 00:20:40.466 to decide the scope of whether or not, 471 00:20:40.466 --> 00:20:43.970 you know, the terms, you know, vague terms 472 00:20:43.970 --> 00:20:44.803 of the contract remand. 473 00:20:44.803 --> 00:20:46.860 Here plaintiff hasn't identified any specific provision 474 00:20:46.860 --> 00:20:48.398 that suggest a waiver or a provision, 475 00:20:48.398 --> 00:20:49.687 like a liquidated damages provision 476 00:20:49.687 --> 00:20:52.120 that would be triggered regardless of the reason 477 00:20:52.120 --> 00:20:54.840 for firing that might suggest a way 478 00:20:54.840 --> 00:20:56.950 around the ministerial exception. 479 00:20:56.950 --> 00:20:57.783 Thank you. 480 00:20:57.783 --> 00:21:01.583 Mister Baxter you put a lot of weight 481 00:21:01.583 --> 00:21:04.550 onto these letters of recommendation 482 00:21:06.291 --> 00:21:08.691 that are involved in a fraction of the students, 483 00:21:10.381 --> 00:21:13.581 who the plaintiff's had in class for a year 484 00:21:13.581 --> 00:21:17.190 And I want to utilize that example 485 00:21:17.190 --> 00:21:20.960 that it gets to the issue that (mumbles) was raising 486 00:21:20.960 --> 00:21:22.700 about this college as opposed 487 00:21:22.700 --> 00:21:27.700 to an elementary school or (mumbles) like Temple Emmanuel. 488 00:21:29.429 --> 00:21:32.850 And I agree that's not positive, 489 00:21:32.850 --> 00:21:37.850 but yeah Gordon called it promoting academic (mumbles) 490 00:21:38.782 --> 00:21:41.003 they talk about diversity of ideas. 491 00:21:41.003 --> 00:21:44.550 When we're looking at... 492 00:21:44.550 --> 00:21:49.440 well, let's look at the (mumbles) test here, 493 00:21:49.440 --> 00:21:50.800 not putting too much weight 494 00:21:50.800 --> 00:21:53.258 onto a few letters of recommendation. 495 00:21:53.258 --> 00:21:56.900 You understand that you can't just cherry pick love bats, 496 00:21:56.900 --> 00:22:00.280 we have to analyze the plaintiff's facts too 497 00:22:00.280 --> 00:22:04.140 when I'm still having a hard time from your brief 498 00:22:04.140 --> 00:22:09.140 and argument figuring out in any way where that (mumbles) 499 00:22:10.913 --> 00:22:14.180 other than looking at Justice Alito's comment 500 00:22:14.180 --> 00:22:17.620 about look at bottom what the teacher done. 501 00:22:17.620 --> 00:22:18.885 Well first of all Your Honor, 502 00:22:18.885 --> 00:22:20.730 with regard to the number of reviews, 503 00:22:20.730 --> 00:22:22.820 it's important to note that for every review 504 00:22:22.820 --> 00:22:26.370 of a student praising plaintiffs integration 505 00:22:26.370 --> 00:22:27.410 of faith into the classroom. 506 00:22:27.410 --> 00:22:28.930 That means that there was a whole classroom 507 00:22:28.930 --> 00:22:29.980 of students that heard that. 508 00:22:29.980 --> 00:22:31.400 So the fact that only one out of 10 509 00:22:31.400 --> 00:22:33.930 or one out of whatever appreciated that, 510 00:22:33.930 --> 00:22:35.563 does not change the religious significance 511 00:22:35.563 --> 00:22:36.746 of what she was doing. 512 00:22:36.746 --> 00:22:38.822 And the other, you know, 513 00:22:38.822 --> 00:22:41.370 Our Lady said there has to be significant deference given 514 00:22:41.370 --> 00:22:45.070 to religious institutions where there's a clear expectation, 515 00:22:45.070 --> 00:22:47.460 where the professor embraces that expectation 516 00:22:47.460 --> 00:22:50.320 and performs in accordance with that expectation. 517 00:22:50.320 --> 00:22:51.900 The Gru's court held that there may be 518 00:22:51.900 --> 00:22:54.600 on the margin some differences of like how far did she go, 519 00:22:54.600 --> 00:22:55.580 or how much was it? 520 00:22:55.580 --> 00:22:57.410 Those are issues that courts can't get into 521 00:22:57.410 --> 00:22:59.300 because you would then be getting entangled 522 00:22:59.300 --> 00:23:01.340 into a religious question. 523 00:23:01.340 --> 00:23:03.564 And so we think that there's more than sufficient evidence 524 00:23:03.564 --> 00:23:06.761 for this court to defer to Gordon College's expectations 525 00:23:06.761 --> 00:23:10.080 of what this particular professor was doing 526 00:23:10.080 --> 00:23:11.013 in the classroom. 527 00:23:13.240 --> 00:23:14.850 Thank you very much. 528 00:23:14.850 --> 00:23:15.683 Attorney Schwab. 529 00:23:18.910 --> 00:23:19.743 Good morning Your Honors. 530 00:23:19.743 --> 00:23:21.260 may it please the court. 531 00:23:21.260 --> 00:23:24.660 My name is Hillary Schwab and I represent the plaintiff, 532 00:23:24.660 --> 00:23:27.525 Professor Margaret DeWeese-Boyd. 533 00:23:27.525 --> 00:23:30.530 The Supreme court articulated a clear 534 00:23:30.530 --> 00:23:31.810 and unequivocal standard 535 00:23:31.810 --> 00:23:34.010 for when the ministerial exception applies 536 00:23:34.010 --> 00:23:36.326 in the Our Lady of Guadalupe case. 537 00:23:36.326 --> 00:23:39.653 What matters is what an employee does. 538 00:23:40.760 --> 00:23:42.672 And what did professor DeWeese-Boyd do? 539 00:23:42.672 --> 00:23:45.670 She was a social work professor. 540 00:23:45.670 --> 00:23:47.304 She taught Social work topics. 541 00:23:47.304 --> 00:23:50.450 She researched and wrote on social work. 542 00:23:50.450 --> 00:23:54.980 her interest included, community development, poverty, 543 00:23:54.980 --> 00:23:57.540 social issues, grassroots movements, 544 00:23:57.540 --> 00:24:01.470 all secular social work topics. 545 00:24:01.470 --> 00:24:04.170 And what she did not do was any 546 00:24:04.170 --> 00:24:06.720 of the quote vital religious duties 547 00:24:06.720 --> 00:24:08.105 that the court held relevant 548 00:24:08.105 --> 00:24:10.840 in the Our Lady of Guadalupe case. 549 00:24:10.840 --> 00:24:12.100 The record is replete with it 550 00:24:12.100 --> 00:24:13.692 and so I won't go into too much detail. 551 00:24:13.692 --> 00:24:16.530 But it's clear she never led sermons, 552 00:24:16.530 --> 00:24:18.062 she never led chapel services, 553 00:24:18.062 --> 00:24:23.010 she never was involved in any sort of religious teaching, 554 00:24:23.010 --> 00:24:24.550 she never led her students... 555 00:24:24.550 --> 00:24:26.540 Council, can I ask you a question, 556 00:24:26.540 --> 00:24:28.970 why isn't it enough that she was required to 557 00:24:28.970 --> 00:24:30.830 and actually did integrate 558 00:24:30.830 --> 00:24:35.182 the evangelical Christian belief into her teaching? 559 00:24:35.182 --> 00:24:39.040 Because the integration at Gordon College 560 00:24:39.040 --> 00:24:42.180 was the integration of a religious perspective 561 00:24:42.180 --> 00:24:44.760 but attendant to that was no requirement 562 00:24:44.760 --> 00:24:46.970 about any sort of religious duties. 563 00:24:46.970 --> 00:24:50.121 And the touchstone is what an employee does. 564 00:24:50.121 --> 00:24:52.710 It is significant that this 565 00:24:52.710 --> 00:24:54.610 is an institution of higher learning 566 00:24:54.610 --> 00:24:57.760 and also that it is not a religious school. 567 00:24:57.760 --> 00:24:58.882 And by that I don't mean whether 568 00:24:58.882 --> 00:25:00.355 or not it's a religious institution, 569 00:25:00.355 --> 00:25:02.450 although we argue that it's not, 570 00:25:02.450 --> 00:25:04.580 but it is not a religious school. 571 00:25:04.580 --> 00:25:06.974 A religious school is one where the sole purpose 572 00:25:06.974 --> 00:25:08.734 as this court recognized 573 00:25:08.734 --> 00:25:10.577 in Temple Emmanuel is the instruction 574 00:25:10.577 --> 00:25:13.356 in religion of the students 575 00:25:13.356 --> 00:25:16.440 or as the court held in Guadalupe, 576 00:25:16.440 --> 00:25:19.400 the very reason for existence of the school 577 00:25:19.400 --> 00:25:21.410 is a religious education. 578 00:25:21.410 --> 00:25:23.820 Now I know each side has cherry picked what they like 579 00:25:23.820 --> 00:25:26.790 from the record in terms of what type of entity it is, 580 00:25:26.790 --> 00:25:30.969 but it is undisputed that while Gordon College identifies 581 00:25:30.969 --> 00:25:35.130 as a Christian community, it quote is distinguished 582 00:25:35.130 --> 00:25:36.880 from other Christian communities 583 00:25:36.880 --> 00:25:39.300 by its primary commitment 584 00:25:39.300 --> 00:25:41.200 to provide a liberal arts education. 585 00:25:41.200 --> 00:25:43.380 And-- Let's take a step back 586 00:25:43.380 --> 00:25:46.088 and get to the the argument 587 00:25:46.088 --> 00:25:50.050 that judge Carr applied the wrong standard 588 00:25:50.050 --> 00:25:55.050 looking at Kant Kirby versus Lexington theological seminary 589 00:25:56.320 --> 00:25:58.100 because you seem to be putting a lot 590 00:25:58.100 --> 00:26:03.100 of weight into the issue of the plane if not teaching 591 00:26:04.620 --> 00:26:09.522 or participating in religious worship with the students. 592 00:26:09.522 --> 00:26:12.830 Yes Your Honor, on the issue 593 00:26:12.830 --> 00:26:15.774 of whether the superior court applied the correct standard, 594 00:26:15.774 --> 00:26:18.420 frankly I think the superior court was prescient 595 00:26:18.420 --> 00:26:20.564 in the standard that he applied rather 596 00:26:20.564 --> 00:26:23.810 than applying the four factors from Hosanna-Tabor. 597 00:26:23.810 --> 00:26:27.993 Only the superior court also applied a quote totality 598 00:26:27.993 --> 00:26:29.779 of the circumstances standard 599 00:26:29.779 --> 00:26:32.311 from the Kentucky Supreme court 600 00:26:32.311 --> 00:26:35.118 which emphasized a functional approach. 601 00:26:35.118 --> 00:26:38.980 And the superior court even quoted statements 602 00:26:38.980 --> 00:26:42.210 from justice Alito in the Hosannah-Tabor case 603 00:26:42.210 --> 00:26:45.160 that forecast the standard that was ultimately applied 604 00:26:45.160 --> 00:26:46.315 in Our Lady of Guadalupe. 605 00:26:46.315 --> 00:26:47.900 So I don't-- 606 00:26:47.900 --> 00:26:51.613 And he also raised concerns about the ninth circuit 607 00:26:51.613 --> 00:26:55.430 that standard that was reversed, 608 00:26:55.430 --> 00:26:58.300 but nonetheless in your argument right now 609 00:26:58.300 --> 00:27:03.300 you're putting a lot into the lack of participation 610 00:27:04.140 --> 00:27:09.140 in teaching religion, teaching religious worship. 611 00:27:09.360 --> 00:27:11.510 When we have a school 612 00:27:11.510 --> 00:27:16.510 and a handbook that is emphasizing the spiritual formation 613 00:27:17.382 --> 00:27:18.516 of the students 614 00:27:18.516 --> 00:27:22.820 and I think the words are Godly, biblical 615 00:27:22.820 --> 00:27:27.414 and Christian ambassadors and that in the application, 616 00:27:27.414 --> 00:27:30.035 in the requests for tenure 617 00:27:30.035 --> 00:27:33.750 and in her description of what she's doing, 618 00:27:33.750 --> 00:27:38.750 she's emphasizing every step of the way her seminary degree 619 00:27:39.970 --> 00:27:43.976 and her incorporation of religion into her teach. 620 00:27:43.976 --> 00:27:47.410 Well Your Honor, it's actually factually inaccurate 621 00:27:47.410 --> 00:27:48.945 that she emphasized the seminary degree. 622 00:27:48.945 --> 00:27:53.210 That was not part of her promotional package 623 00:27:53.210 --> 00:27:54.317 but the point still stands Your Honor, 624 00:27:54.317 --> 00:27:55.830 I understand what you're saying. 625 00:27:55.830 --> 00:27:57.923 Gordon College has dual purposes. 626 00:27:57.923 --> 00:28:02.830 It emphasizes a Godly perspective 627 00:28:02.830 --> 00:28:05.780 in a liberal arts education similar to what you would get 628 00:28:05.780 --> 00:28:08.880 from any secular liberal arts college. 629 00:28:08.880 --> 00:28:10.420 And while it is true-- 630 00:28:10.420 --> 00:28:13.800 That's really an understatement, isn't it? 631 00:28:13.800 --> 00:28:16.140 I mean Gordon College wouldn't... 632 00:28:16.140 --> 00:28:19.917 They're emphasizing the evangelical aspect 633 00:28:19.917 --> 00:28:21.390 to their education. 634 00:28:21.390 --> 00:28:26.390 This is different from a lot of other colleges 635 00:28:26.970 --> 00:28:31.230 that may have a religious origin. 636 00:28:31.230 --> 00:28:34.490 But this is a different kind of college. 637 00:28:34.490 --> 00:28:35.860 Your Honor-- It was recruiting 638 00:28:35.860 --> 00:28:37.505 a different kind of professor. 639 00:28:37.505 --> 00:28:40.341 I think we have to confront the hard facts here as well. 640 00:28:40.341 --> 00:28:45.341 To simplify this, I think is not really to do with justice. 641 00:28:46.710 --> 00:28:50.420 This is an integration of, you know, 642 00:28:50.420 --> 00:28:54.718 Evangelical Christian beliefs with teaching. 643 00:28:54.718 --> 00:28:57.340 I just think we have to confront that. 644 00:28:57.340 --> 00:28:59.390 You can't just sort of compartmentalize it 645 00:28:59.390 --> 00:29:00.244 the way you're trying to do it. 646 00:29:00.244 --> 00:29:02.347 Your Honor respectfully, 647 00:29:02.347 --> 00:29:07.347 the school does not incorporate evangelical teachings. 648 00:29:07.440 --> 00:29:10.570 It incorporates an evangelical perspective 649 00:29:10.570 --> 00:29:14.150 within the framework of academic freedom. 650 00:29:14.150 --> 00:29:15.428 The professors at Gordon College 651 00:29:15.428 --> 00:29:18.066 are expected to be experts in their field. 652 00:29:18.066 --> 00:29:21.960 And the field for professor DeWeese-Boyd was social work. 653 00:29:21.960 --> 00:29:24.374 They are not expected to be experts 654 00:29:24.374 --> 00:29:26.970 in any sort of religious duties. 655 00:29:26.970 --> 00:29:29.530 There's a chaplain, there's a chaplain's department, 656 00:29:29.530 --> 00:29:30.640 there's a chapel. 657 00:29:30.640 --> 00:29:33.889 Those are the places where students seek out religious life. 658 00:29:33.889 --> 00:29:35.420 Now, is it true-- 659 00:29:35.420 --> 00:29:36.990 I don't know how you say that 660 00:29:36.990 --> 00:29:40.884 with an the integration requirement means 661 00:29:40.884 --> 00:29:43.670 that not just the sociology teacher, 662 00:29:43.670 --> 00:29:46.050 but presumably the math teacher 663 00:29:46.050 --> 00:29:50.520 and the engineering teacher are required to integrate faith 664 00:29:51.870 --> 00:29:53.470 into their academic teaching, 665 00:29:53.470 --> 00:29:56.840 integrate faith into their academic teaching. 666 00:29:56.840 --> 00:29:59.748 The quote from the handbook is the development 667 00:29:59.748 --> 00:30:00.980 of a Christian perspective 668 00:30:00.980 --> 00:30:03.920 within the faculty members academic discipline. 669 00:30:03.920 --> 00:30:07.800 That same handbook also emphasizes academic freedom. 670 00:30:07.800 --> 00:30:09.670 I understand what Your Honors are saying. 671 00:30:09.670 --> 00:30:12.410 It is true that professor DeWeese-Boyd 672 00:30:12.410 --> 00:30:13.431 had a Christian perspective. 673 00:30:13.431 --> 00:30:15.522 We're not trying to deny that. 674 00:30:15.522 --> 00:30:18.810 But what the Supreme court focused on 675 00:30:18.810 --> 00:30:23.670 was not what an employee thinks, but what an employee does. 676 00:30:23.670 --> 00:30:26.372 And in fact, in the Our Lady of Guadalupe case, 677 00:30:26.372 --> 00:30:28.657 one of the plaintiffs said, 678 00:30:28.657 --> 00:30:30.317 "I'm not even a practicing Catholic. 679 00:30:30.317 --> 00:30:32.397 "It's not possible for me to be a minister." 680 00:30:32.397 --> 00:30:33.277 The court said, 681 00:30:33.277 --> 00:30:35.823 "No, regardless of your religious affiliation 682 00:30:35.823 --> 00:30:38.300 "we're looking at what you do ." 683 00:30:38.300 --> 00:30:39.520 And listed... 684 00:30:39.520 --> 00:30:42.640 I don't know, 19, 20 things that they did. 685 00:30:42.640 --> 00:30:45.070 None of which professor DeWeese-Boyd comes 686 00:30:45.070 --> 00:30:46.347 even close to doing. 687 00:30:46.347 --> 00:30:49.720 The functional approach is an approach that looks 688 00:30:49.720 --> 00:30:51.290 at what the employee does. 689 00:30:51.290 --> 00:30:54.827 And what professor DeWeese does is teach social work. 690 00:30:54.827 --> 00:30:57.914 The perspective is a Christian perspective. 691 00:30:57.914 --> 00:30:59.959 She's a Christian academic. 692 00:30:59.959 --> 00:31:02.190 We don't deny that. What does that, 693 00:31:02.190 --> 00:31:03.023 What does that mean? 694 00:31:03.023 --> 00:31:07.566 Because the US Supreme court is also cautioning us not to, 695 00:31:07.566 --> 00:31:12.566 you know, try to be careful when we get 696 00:31:13.155 --> 00:31:17.375 into these kinds of distinctions between what is, you know, 697 00:31:17.375 --> 00:31:20.480 what is the secular component of what she does 698 00:31:20.480 --> 00:31:23.230 and what is the religious component of what she does? 699 00:31:23.230 --> 00:31:26.160 Because we don't know what we're doing in this area. 700 00:31:26.160 --> 00:31:31.160 So, I mean, because you know we're not religious experts. 701 00:31:33.451 --> 00:31:35.686 So how do we... 702 00:31:35.686 --> 00:31:40.329 I feel like we're treading into dangerous territory here. 703 00:31:40.329 --> 00:31:44.640 If we don't risk, you know, 704 00:31:44.640 --> 00:31:48.860 if we start deciding what her secular aspects are 705 00:31:48.860 --> 00:31:50.860 and what her religious aspects are 706 00:31:50.860 --> 00:31:53.461 in a school that doesn't draw those distinctions. 707 00:31:53.461 --> 00:31:56.260 Well Your Honor, that's precisely 708 00:31:56.260 --> 00:31:59.220 why the Supreme court wisely focused 709 00:31:59.220 --> 00:32:03.700 on an employee's duties, not the employee's perspective. 710 00:32:03.700 --> 00:32:05.520 And the employee's duties 711 00:32:05.520 --> 00:32:08.060 in this case are teaching social work. 712 00:32:08.060 --> 00:32:09.429 Now as to the record-- 713 00:32:09.429 --> 00:32:14.429 But her duty is to teach social work and integrate 714 00:32:15.820 --> 00:32:19.111 and even it sounds like proselytize a little bit. 715 00:32:19.111 --> 00:32:24.111 And her teaching and social work has a component, 716 00:32:24.720 --> 00:32:27.773 you know that it is different from math. 717 00:32:29.169 --> 00:32:32.500 Again isn't she supposed to bring 718 00:32:32.500 --> 00:32:36.018 that religious perspective, those religious values 719 00:32:36.018 --> 00:32:39.610 into how she's teaching social work? 720 00:32:39.610 --> 00:32:40.790 Your Honor no. 721 00:32:40.790 --> 00:32:42.167 There are no such requirements. 722 00:32:42.167 --> 00:32:45.050 And in fact the bylaws guiding principle 723 00:32:45.050 --> 00:32:46.750 for the organization says it is 724 00:32:46.750 --> 00:32:50.300 about education, not indoctrination. 725 00:32:50.300 --> 00:32:52.031 There is no requirement 726 00:32:52.031 --> 00:32:54.205 that any professor Gordon College proselytize. 727 00:32:54.205 --> 00:32:58.149 Professor DeWeese-Boyd approaches her work 728 00:32:58.149 --> 00:33:00.920 from a Christian perspective 729 00:33:00.920 --> 00:33:02.460 and the way she views that as she states it, 730 00:33:02.460 --> 00:33:07.460 is to look at issues and looking at their ethical 731 00:33:07.750 --> 00:33:10.570 and moral significance beyond just the teach. 732 00:33:10.570 --> 00:33:11.670 But counsel that brings us 733 00:33:11.670 --> 00:33:13.674 right back to Justice Kafker problem. 734 00:33:13.674 --> 00:33:16.720 And that is that we can't look at that 735 00:33:16.720 --> 00:33:21.690 and they, Oh, you know, that's ministerial and that's not, 736 00:33:21.690 --> 00:33:25.470 this is partly your faith being infused and integrated 737 00:33:25.470 --> 00:33:28.230 but that doesn't count for ministerial work. 738 00:33:28.230 --> 00:33:30.633 I mean, that's really not what we can do. 739 00:33:30.633 --> 00:33:32.560 Right Your Honor you're absolutely right 740 00:33:32.560 --> 00:33:34.324 that you should not look at what she thinks, 741 00:33:34.324 --> 00:33:36.477 you should look at what she does. 742 00:33:36.477 --> 00:33:39.870 And the record does not include her doing anything 743 00:33:39.870 --> 00:33:40.904 other than teaching (mumbles) 744 00:33:40.904 --> 00:33:44.951 What do we make of those student evaluations 745 00:33:44.951 --> 00:33:49.951 where they said that she helped them do just... 746 00:33:50.710 --> 00:33:55.036 She helped them develop their faith in this area... 747 00:33:55.036 --> 00:33:56.393 I mean, what do we do with that? 748 00:33:56.393 --> 00:33:58.060 Because that's, I mean, 749 00:33:58.060 --> 00:34:00.001 and that was part of her duty, right? 750 00:34:00.001 --> 00:34:03.666 And that's why she was being evaluated on that. 751 00:34:03.666 --> 00:34:07.210 Okay. As the student reviews, 752 00:34:07.210 --> 00:34:09.892 the student comments were six comments 753 00:34:09.892 --> 00:34:14.280 out of thousands in a 20 year teaching career. 754 00:34:14.280 --> 00:34:16.159 I cannot emphasize highly enough 755 00:34:16.159 --> 00:34:18.926 how diminimous the student comments were. 756 00:34:18.926 --> 00:34:21.608 Moreover in terms of her evaluation, 757 00:34:21.608 --> 00:34:25.500 on the student evaluations there were 19 questions. 758 00:34:25.500 --> 00:34:29.370 One of them alludes briefly to Christian perspective 759 00:34:29.370 --> 00:34:31.050 and that's the question 760 00:34:31.050 --> 00:34:33.624 that elicited six out of thousands of comments. 761 00:34:33.624 --> 00:34:38.331 And as my brother recently stated in his argument, 762 00:34:38.331 --> 00:34:42.200 she was not evaluated on any religious 763 00:34:42.200 --> 00:34:45.913 or ministerial duties in her application for promotion. 764 00:34:45.913 --> 00:34:48.813 The school itself has no standards 765 00:34:48.813 --> 00:34:50.766 for evaluating religious duties. 766 00:34:50.766 --> 00:34:54.125 There's no requirement that one open class with a prayer, 767 00:34:54.125 --> 00:34:57.021 that there are any religious imagery in the classroom. 768 00:34:57.021 --> 00:34:59.790 None of that, none of the stuff that was present 769 00:34:59.790 --> 00:35:02.090 in the Our Lady of Guadalupe case. 770 00:35:02.090 --> 00:35:05.080 Miss Schwab I'm just going to state the obvious. 771 00:35:05.080 --> 00:35:07.119 We all understand it but I'm going to state the obvious. 772 00:35:07.119 --> 00:35:10.712 We do not have a blank piece of paper here. 773 00:35:10.712 --> 00:35:14.580 We're dealing with the United States constitution 774 00:35:14.580 --> 00:35:17.074 that provides a bottom of protection 775 00:35:17.074 --> 00:35:19.153 for the free exercise clause. 776 00:35:19.153 --> 00:35:22.352 And we've got a statement in Lady of Guadalupe 777 00:35:22.352 --> 00:35:25.760 about when a school with a religious mission 778 00:35:25.760 --> 00:35:29.350 entrust the teacher with the responsibility of educating 779 00:35:29.350 --> 00:35:31.172 and forming students of faith 780 00:35:31.172 --> 00:35:33.550 that we have to be very concerned 781 00:35:33.550 --> 00:35:35.716 about traditional intervention. 782 00:35:35.716 --> 00:35:40.450 And I am concerned about both sides (mumbles) 783 00:35:40.450 --> 00:35:44.594 but in response to the issue of tenure, 784 00:35:44.594 --> 00:35:49.594 in 2009 your client submit the paper reflections 785 00:35:49.740 --> 00:35:51.630 on Christian scholarship 786 00:35:51.630 --> 00:35:56.620 and this indicate how he follows (mumbles) 787 00:35:58.041 --> 00:35:59.750 on all of her work, 788 00:35:59.750 --> 00:36:04.749 and that it plays out in the method in which I teach 789 00:36:04.749 --> 00:36:07.140 and which I interact with students. 790 00:36:07.140 --> 00:36:08.600 So I'm gonna take the time to repeat that. 791 00:36:08.600 --> 00:36:11.240 What she says in her tenure paper 792 00:36:11.240 --> 00:36:15.450 is that the issue that is the responsibility 793 00:36:15.450 --> 00:36:19.540 of professors that Gordon College plays out in the method 794 00:36:19.540 --> 00:36:22.830 in which I teach and how I interact with students. 795 00:36:22.830 --> 00:36:26.608 We are walking right into the bullseye of Lady of Guadalupe. 796 00:36:26.608 --> 00:36:30.590 Help me understand what we do with that. 797 00:36:30.590 --> 00:36:34.010 Sure. Well to address the substantive issue, 798 00:36:34.010 --> 00:36:36.960 that is one statement that she made in 2009, 799 00:36:36.960 --> 00:36:40.081 in as I said a 20-year teaching career. 800 00:36:40.081 --> 00:36:42.673 And that statement speaks to her perspective, 801 00:36:42.673 --> 00:36:46.620 to what she thinks, to how she approaches her work. 802 00:36:46.620 --> 00:36:50.190 Attendant with that is no evidence of religious duties, 803 00:36:50.190 --> 00:36:52.680 no evidence of any activity in the chapel, 804 00:36:52.680 --> 00:36:55.420 I mean, I don't want to repeat myself over and over again 805 00:36:55.420 --> 00:36:58.728 but what matters at bottom is what an employee does. 806 00:36:58.728 --> 00:37:02.900 And she does none of the vital religious duties 807 00:37:02.900 --> 00:37:05.130 that are said to be relevant in Our Lady of Guadalupe. 808 00:37:05.130 --> 00:37:06.910 But I also want to address this issue 809 00:37:06.910 --> 00:37:08.520 of what this court can look at. 810 00:37:08.520 --> 00:37:10.940 And it is very important for the court 811 00:37:10.940 --> 00:37:13.556 to keep in mind that the ministerial exception 812 00:37:13.556 --> 00:37:15.619 is not boundless. 813 00:37:15.619 --> 00:37:17.770 It is tailored, 814 00:37:17.770 --> 00:37:20.410 it is focused and that's a quote from Guadalupe. 815 00:37:20.410 --> 00:37:24.164 It is tailored, it applies only to those who are essential 816 00:37:24.164 --> 00:37:26.783 to performing key religious activities. 817 00:37:26.783 --> 00:37:29.428 The court has to make that determination 818 00:37:29.428 --> 00:37:33.677 and focusing on duties rather than intent, 819 00:37:33.677 --> 00:37:37.140 allows the court to do so without making a determination 820 00:37:37.140 --> 00:37:40.290 about what constitutes a religious ethos 821 00:37:40.290 --> 00:37:42.130 in somebody's approach to work. 822 00:37:42.130 --> 00:37:46.876 So whether a value-laden topic is one that is religious 823 00:37:46.876 --> 00:37:49.130 or just ethical and moral, 824 00:37:49.130 --> 00:37:51.087 isn't a question that the court should be engaging in. 825 00:37:51.087 --> 00:37:54.626 Instead the court should look at what the employee does. 826 00:37:54.626 --> 00:37:59.626 A court should not just defer to what the institution says 827 00:38:01.320 --> 00:38:02.854 in its briefing is the reason, 828 00:38:02.854 --> 00:38:05.893 you know, is its reason for being, 829 00:38:05.893 --> 00:38:07.960 because by that standard, 830 00:38:07.960 --> 00:38:10.160 anybody who just asserts the ministerial exception, 831 00:38:10.160 --> 00:38:11.393 it would automatically apply. 832 00:38:11.393 --> 00:38:12.581 And I want to be clear 833 00:38:12.581 --> 00:38:14.534 on the attorney general touches on this 834 00:38:14.534 --> 00:38:17.481 in its Amicus brief as well. 835 00:38:17.481 --> 00:38:20.720 When applied the ministerial exception 836 00:38:20.720 --> 00:38:22.272 has incredible breadth 837 00:38:22.272 --> 00:38:24.652 and allows an employer to discriminate 838 00:38:24.652 --> 00:38:27.290 against an employee openly, 839 00:38:27.290 --> 00:38:31.995 for any reason, for reasons of race, gender, disability. 840 00:38:31.995 --> 00:38:34.140 It allows carte blanche 841 00:38:34.140 --> 00:38:36.276 to violate the anti-discrimination laws. 842 00:38:36.276 --> 00:38:38.830 And that's why it's so important that 843 00:38:38.830 --> 00:38:39.981 as the Supreme court said, 844 00:38:39.981 --> 00:38:43.890 the ministerial exception is applied 845 00:38:43.890 --> 00:38:46.020 in a tailored and focused way. 846 00:38:46.020 --> 00:38:48.380 And the court has to engage in that inquiry 847 00:38:48.380 --> 00:38:50.250 and do so based on the record before it. 848 00:38:50.250 --> 00:38:53.877 Could you summarize your holding for us here? 849 00:38:53.877 --> 00:38:57.680 if you're writing what the key paragraph 850 00:38:57.680 --> 00:39:00.850 in our decision here, given the facts we've got, 851 00:39:00.850 --> 00:39:05.850 which is the professor at the evangelical college, 852 00:39:07.480 --> 00:39:11.198 required to integrate her Christian perspective 853 00:39:11.198 --> 00:39:15.720 into her teaching of social work. 854 00:39:15.720 --> 00:39:16.987 How does your holding read? 855 00:39:16.987 --> 00:39:21.440 She is not, she's not a minister because, go ahead, 856 00:39:21.440 --> 00:39:22.660 could you summarize that for us? 857 00:39:22.660 --> 00:39:24.997 She's not a minister because she performs none 858 00:39:24.997 --> 00:39:27.224 of the vital religious duties held 859 00:39:27.224 --> 00:39:30.789 to be determinative in the Our Lady of Guadalupe case. 860 00:39:30.789 --> 00:39:34.530 To hold otherwise would allow the exception-- 861 00:39:34.530 --> 00:39:37.013 Can you (mumbles) first sentence, 862 00:39:37.013 --> 00:39:39.567 none of the religious duties, which are... 863 00:39:39.567 --> 00:39:42.412 None of the vital religious duties 864 00:39:42.412 --> 00:39:46.428 which the court held to be determinative 865 00:39:46.428 --> 00:39:48.630 in Our Lady of Guadalupe. 866 00:39:48.630 --> 00:39:49.894 Which are what? Go ahead. 867 00:39:49.894 --> 00:39:52.217 Okay, I'll go through with them. 868 00:39:52.217 --> 00:39:56.070 Leading chapel services, 869 00:39:56.070 --> 00:39:58.467 taking students to chapel services, 870 00:39:58.467 --> 00:40:01.150 praying with students, 871 00:40:01.150 --> 00:40:03.590 leading students in prayer, 872 00:40:03.590 --> 00:40:08.126 teaching students about religion, delivering sermons, 873 00:40:08.126 --> 00:40:10.970 selecting liturgy, hymns, 874 00:40:10.970 --> 00:40:13.940 or other content for chapel services, 875 00:40:13.940 --> 00:40:16.300 conducting Bible studies, 876 00:40:16.300 --> 00:40:19.270 having a public role as a minister or religious 877 00:40:19.270 --> 00:40:21.860 or spiritual relieving leader, 878 00:40:21.860 --> 00:40:22.883 preaching, 879 00:40:24.851 --> 00:40:27.231 motivating or encouraging students 880 00:40:27.231 --> 00:40:29.953 to participate in religious life. 881 00:40:31.356 --> 00:40:33.883 Counsel, one more thing though it says, 882 00:40:33.883 --> 00:40:38.883 is that, in the opinion that when a school 883 00:40:40.830 --> 00:40:42.246 with a religious mission, 884 00:40:42.246 --> 00:40:45.823 would you agree that Gordon College has religious mission? 885 00:40:46.995 --> 00:40:48.430 I do not agree that it 886 00:40:48.430 --> 00:40:50.580 has an exclusively religious mission. 887 00:40:50.580 --> 00:40:53.118 And we argue that it is not a religious institution, 888 00:40:53.118 --> 00:40:56.270 but for purposes of your question, I understand the purpose. 889 00:40:56.270 --> 00:40:58.697 The Supreme court says that when a school 890 00:40:58.697 --> 00:41:01.580 has a religious mission, entrust the teacher 891 00:41:01.580 --> 00:41:05.420 with the responsibility of educating and forming students 892 00:41:05.420 --> 00:41:08.800 in the faith, judicial intervention into dispute 893 00:41:08.800 --> 00:41:10.800 between the school and the teacher, 894 00:41:10.800 --> 00:41:12.520 threatens the school's independence 895 00:41:12.520 --> 00:41:14.830 in a way that the first amendment does not allow. 896 00:41:14.830 --> 00:41:16.404 Now that's a broader statement 897 00:41:16.404 --> 00:41:19.180 than the factors that were listed. 898 00:41:19.180 --> 00:41:22.018 So I don't believe those factors are exclusive. 899 00:41:22.018 --> 00:41:25.970 And that if you take a conclusory sentence like this 900 00:41:25.970 --> 00:41:28.330 and think about Gordon College 901 00:41:28.330 --> 00:41:29.980 and all that it's put out on it's website 902 00:41:29.980 --> 00:41:32.276 and everything that's in the record pending, 903 00:41:32.276 --> 00:41:36.190 it's hard to understand how she's not 904 00:41:36.190 --> 00:41:41.190 performing their faith or helping in that way. 905 00:41:43.090 --> 00:41:44.633 First of all Your Honor, 906 00:41:44.633 --> 00:41:48.720 the court did make that statement 907 00:41:48.720 --> 00:41:51.032 while leading up to its analysis, 908 00:41:51.032 --> 00:41:53.880 the court stated that what matters at bottom 909 00:41:53.880 --> 00:41:55.620 is what an employee-- What they do. 910 00:41:55.620 --> 00:41:58.669 And look at the vital religious duties. 911 00:41:58.669 --> 00:42:01.872 Moreover, in talking about religious schools, 912 00:42:01.872 --> 00:42:04.320 the court identified religious schools 913 00:42:04.320 --> 00:42:07.070 as those for whom the very reason 914 00:42:07.070 --> 00:42:10.110 for existence was religious education. 915 00:42:10.110 --> 00:42:12.151 That is not the case for Gordon College. 916 00:42:12.151 --> 00:42:14.625 Gordon College is a liberal arts college 917 00:42:14.625 --> 00:42:18.256 that grants academic freedom, which is significant. 918 00:42:18.256 --> 00:42:20.030 And as Your Honor referenced, 919 00:42:20.030 --> 00:42:22.440 is discussed in the American Association 920 00:42:22.440 --> 00:42:24.587 of University Professors Amicus brief, 921 00:42:24.587 --> 00:42:29.485 that academic freedom and the liberal arts mission, 922 00:42:29.485 --> 00:42:31.940 the primary liberal arts mission 923 00:42:31.940 --> 00:42:34.750 of Gordon College separates it from a school. 924 00:42:34.750 --> 00:42:37.120 The purpose of which is to send your kid in, 925 00:42:37.120 --> 00:42:38.976 so they know how to practice the religion 926 00:42:38.976 --> 00:42:42.523 and that they come out knowing the religious rights 927 00:42:42.523 --> 00:42:44.430 knowing how to practice those rights. 928 00:42:44.430 --> 00:42:46.082 That is not what Gordon College is about. 929 00:42:46.082 --> 00:42:48.950 But you could look at that a different way. 930 00:42:48.950 --> 00:42:51.190 You could say, oh Gordon College is different 931 00:42:51.190 --> 00:42:54.620 from the average garden variety liberal arts colleges 932 00:42:54.620 --> 00:42:56.770 because it also has this Christian mission. 933 00:42:56.770 --> 00:43:00.260 So I don't really put any weight on your last statement. 934 00:43:00.260 --> 00:43:02.250 I mean, Gordon College has 935 00:43:02.250 --> 00:43:04.110 and it's articles for organization, 936 00:43:04.110 --> 00:43:06.510 its bylaws, is a clearly religious mission. 937 00:43:06.510 --> 00:43:09.320 So the notion that we're going to look at whether 938 00:43:09.320 --> 00:43:11.231 or not it also teaches math and engineering 939 00:43:11.231 --> 00:43:14.449 and other things and conclude because of that, 940 00:43:14.449 --> 00:43:17.232 it's a liberal arts college, not a religious institution, 941 00:43:17.232 --> 00:43:19.483 seems to me a little short-sighted. 942 00:43:19.483 --> 00:43:22.817 But whether or not it's a Christian entity 943 00:43:22.817 --> 00:43:24.980 and whether or not the plaintiff is Christian, 944 00:43:24.980 --> 00:43:27.052 both of which are reasonably undisputed. 945 00:43:27.052 --> 00:43:29.597 The fact remains, that's not all that's required 946 00:43:29.597 --> 00:43:31.198 for the ministerial exception. 947 00:43:31.198 --> 00:43:32.307 The ministerial-- We are not talking 948 00:43:32.307 --> 00:43:35.067 about the religious institution aspect of it, prong one. 949 00:43:35.067 --> 00:43:39.100 Understood. And Your Honor our position on that 950 00:43:39.100 --> 00:43:41.160 is that at a minimum, the fact 951 00:43:41.160 --> 00:43:42.483 that there are these dual purposes, 952 00:43:42.483 --> 00:43:45.620 informs the analysis of the second prong 953 00:43:45.620 --> 00:43:48.090 Certainly, but Our Lady of Guadalupe knows schools 954 00:43:48.090 --> 00:43:50.440 also taught all their other subjects 955 00:43:50.440 --> 00:43:53.310 in addition to religion, it didn't make them unqualified 956 00:43:53.310 --> 00:43:55.260 for the ministerial exception. 957 00:43:55.260 --> 00:43:59.030 But the quoting Guadalupe very reason 958 00:43:59.030 --> 00:44:02.650 for existence of the school was religious education. 959 00:44:02.650 --> 00:44:05.118 And that's simply not the case for Gordon College 960 00:44:05.118 --> 00:44:07.054 But didn't Gordon College-- 961 00:44:07.054 --> 00:44:09.210 (mumbles) organization for that? 962 00:44:09.210 --> 00:44:10.510 Sorry, I didn't hear the question. 963 00:44:10.510 --> 00:44:11.760 Can we look at the articles 964 00:44:11.760 --> 00:44:13.530 of organization for that? 965 00:44:13.530 --> 00:44:14.363 Absolutely. 966 00:44:14.363 --> 00:44:15.952 And the articles... 967 00:44:15.952 --> 00:44:17.774 For every article of organization 968 00:44:17.774 --> 00:44:19.644 that emphasizes a Christian perspective, 969 00:44:19.644 --> 00:44:22.117 there is an article of organization 970 00:44:22.117 --> 00:44:25.390 that emphasizes the importance of education. 971 00:44:25.390 --> 00:44:26.990 And that's why between our two briefs, 972 00:44:26.990 --> 00:44:30.990 we have the entire all the bylaws and all the purposes 973 00:44:30.990 --> 00:44:33.270 because they focused on the Christian ones 974 00:44:33.270 --> 00:44:34.538 and we focused on liberal arts ones. 975 00:44:34.538 --> 00:44:37.710 But when you look at it, there are dual purposes 976 00:44:37.710 --> 00:44:39.361 and those purposes are incredibly significant 977 00:44:39.361 --> 00:44:43.427 because they guide the functions that the employees have 978 00:44:43.427 --> 00:44:46.560 and the duties that are assigned to them 979 00:44:46.560 --> 00:44:47.393 which are the duties 980 00:44:47.393 --> 00:44:49.099 of teaching in their academic discipline 981 00:44:49.099 --> 00:44:52.070 and researching and writing in their academic discipline. 982 00:44:52.070 --> 00:44:55.159 So if I'm a college prep, elementary school 983 00:44:55.159 --> 00:44:57.575 or through middle school and high school 984 00:44:57.575 --> 00:45:01.360 and I emphasize college prep 985 00:45:01.360 --> 00:45:05.755 but I'm also a Catholic school, that makes me unqualified 986 00:45:05.755 --> 00:45:08.780 for the religious institution aspect 987 00:45:08.780 --> 00:45:09.987 of the ministerial exception? 988 00:45:09.987 --> 00:45:12.270 What matters Your Honor is what you do. 989 00:45:12.270 --> 00:45:13.970 So it depends. 990 00:45:13.970 --> 00:45:14.994 I don't have enough information 991 00:45:14.994 --> 00:45:16.461 about what you do day to day. 992 00:45:16.461 --> 00:45:19.840 If you're taking the students to chapel, 993 00:45:19.840 --> 00:45:20.936 if you're leading sermons, 994 00:45:20.936 --> 00:45:24.046 if you're choosing hymns, liturgy et cetera, 995 00:45:24.046 --> 00:45:27.144 then I think under Guadalupe, you would be a minister. 996 00:45:27.144 --> 00:45:31.180 But if you are teaching in a school 997 00:45:31.180 --> 00:45:34.652 that might have a cross hanging behind you and that's all, 998 00:45:34.652 --> 00:45:37.213 no, that's not enough. 999 00:45:40.550 --> 00:45:41.713 Any other questions? 1000 00:45:42.900 --> 00:45:45.766 Okay, thank you, oh, go ahead I'm sorry. 1001 00:45:45.766 --> 00:45:47.006 No. 1002 00:45:47.006 --> 00:45:50.037 I just want to clarify one thing if I could 1003 00:45:50.037 --> 00:45:51.521 before we leave which is, 1004 00:45:51.521 --> 00:45:55.153 you mentioned that you're contesting that Gordon College 1005 00:45:55.153 --> 00:45:56.667 is a religious institution. 1006 00:45:56.667 --> 00:45:59.780 That could decide what the articles 1007 00:45:59.780 --> 00:46:02.106 of organization say in the faculty handbook. 1008 00:46:02.106 --> 00:46:04.351 That's what judge Carr found 1009 00:46:04.351 --> 00:46:06.274 and that issue hasn't been raised. 1010 00:46:06.274 --> 00:46:07.947 You have an appeal? 1011 00:46:07.947 --> 00:46:11.260 Well Your Honor, this court looks at the application 1012 00:46:11.260 --> 00:46:13.690 of the ministerial exception de novo 1013 00:46:13.690 --> 00:46:17.270 and can affirm for any reason including reasons 1014 00:46:17.270 --> 00:46:19.910 not ruled on by the superior court. 1015 00:46:19.910 --> 00:46:20.743 So this court... 1016 00:46:20.743 --> 00:46:23.636 the question is does the ministerial exception apply or not? 1017 00:46:23.636 --> 00:46:28.410 This court could rule on the first prong or the second prong 1018 00:46:28.410 --> 00:46:30.260 and still affirm the superior courts. 1019 00:46:32.650 --> 00:46:33.680 Okay. Thank you. 1020 00:46:33.680 --> 00:46:35.280 Thank you Your Honor.