please have appearances of counsel (appearance, tendered. CHIEF JUSTICE
RABNER: Good morning, and welcome to all counsel, I'm going to hesitantly call your attention
to the time limits that we have on our sheets for everyone. We are quite generous with
time many of you have argued in front of the court before. We have three arguments today
and seven attorneys, we're going to try to keep close to the neighborhood am Mickeys
10 to 15 minutes, please have that in mind as you make your presentations and to counsel
for the parties, let's try to stay close to the 30 minutes and I will prompt you, Mr.
Verniero. CHIEF JUSTICE RABNER: Please good. PETER G.
VERNIERO: Jess justice, justices, may it please the court. I would like to reserve five
minutes for rebuttal. CHIEF JUSTICE RABNER: That's fine.
PETER G. VERNIERO: Religious liberty 70 autonomy are at the core of this case. Under
the religion clauses of the U.S. Constitution, Saint Theresa school had the right to
separate from a teacher who acknowledged violating a well-known tenant of the Catholic
faith. The school's response to plaintiff's admission also was protected under the
religion exception to New Jersey's law against discrimination. To be sure, the school
does not seek to apply the Palatinik tear y'all clippings Aautonomy doctrine or the LAD
exception to all disputes. Instead, this case can be Confined narrowly to its facts.
It involves no other employee except a Catholic school teacher who chose to fulfill
a critical religious Palatinik Tri before a classroom of young students and who admitted
violating church doctrine. This was the first time sister Saint Theresa school Lee,
the school's principal learned that any teacher had violated Catholic doctrine and acted
contrary to the minister Tri and ethic policies, those policies required plaintiff to
uphold the standards of the Catholic church in her day to day work and personal life.
Under the faculty handbook, all teachers, including plaintiff, were required to
integrate faith in all subject areas. The Appellate Division discounted all those facts
on why plaintiff was critical to the church's mission. The panel also discounted the
religion clauses, the LAD exception, even its own earlier remand instructions.
In their place, the panel adopted a novel rule of law on how to evaluate an alleged pretext
for discrimination. That rule reflects not only a risk of entangledment with the church
but actual entanglement. Under the panel's analysis, if a religious employer
wishes to discontinue employment in the one instance in which it is sure that a violation
has occurred, that employer must first probe its entire work force for all possible violateds
of all possible tenants. Under this analysis, if the religious employer does not engage
in this wide ranging inquiry, then that fact is sufficient evidence of pretext requiring
the church to stand trial for making a faith-based employment decision.
Applying its rule for the first time in any New Jersey case, the Appellate Division
faulted sister Lee because she did not ask the 20 plus other faculty members numerous
questions on deeply personal topics. Rather than invade the privacy of her staff, sister
lee instead to chose to foster an environment of trust which the letter of a religious
organization had the right to do without being second guessed by the government. Unless it
is overturned, the Appellate Division's untenable rule would survive a trial in this or
any future case. This would inflict continual Constitutional injury on the religious
employers in New Jersey, and it would expose countless religious employees to unfounded
interrogations. The religious tenant at issue in this case, the prohibition against
premarital sex may be unpopular to many. All the more reason why this article of faith
is constitutionally and statutely protected. Even if this court disagrees with this
court's constitutionallal or statutory analysis, no reasonable jury could find discrimination,
unlawful discrimination or pretext of discrimination on the facts of this one
specific case. I welcome the court's questions. CHIEF JUSTICE RABNER: Should
we start with statutory issues ahead of constitutional ones in light of the principal
that we only reach constitutional questions if we must. PETER G. VERNIERO: Yes,
Your Honor, so the statute in question is the law against discrimination, I call it the
religious tenants exception. There's also a second exception there's some dispute with
one of the am meek key as to whether the statute has one or two exception, I believe
for reasons stated in my brief it has two. And if you parse that statute, it says that
it shall not be an unlawful employment practice for a religious organization to take
action in following the tenants of its religion in establishing and utilizing criteria
for employment of an employee. I think that statute operates both with respect to hiring
and with respect to termination and anything in between. THE COURT: So
at V. CHIEF JUSTICE RABNER: So at the core of the statutory language is
establishing ask utilizing criteria for employment. Do the statements in the code of
ethics satisfy that requirement and which of them deal directly with premarital sex.
PETER G. VERNIERO: We believe it does, Your Honor, and it's the code of
conduct. It's the ministerial policies that come into play here and specifically there
are two and this is 144 A church personnel shall exhibit the highest Christian ethical
standards and personal integrity, and also church personnel shall conduct themselves
in a manner consistent with the discipline norm teachings of the Catholic church.
CHIEF JUSTICE RABNER: How would an employee know that that encompasses premarital
sex? PETER G. VERNIERO: This employee knew, she acknowledged both in her
deposition and her answers to interrogatories. She indicated in her deposition that she
had a good grip on Catholic teaching, she was an alum of the school, she was raised and
actually attended this church. So this is not the case as you could have in some cases
where someone doesn't know, either about the tenant or whether it was violated. It's
very interesting in the deposition plaintiff's deposition, when she was about to enter
into the conversation with sister lee that ultimately led to her discharge, she knew
going into that conversation, she candidly said this in her deposition and I really credit
her for her candor, she said she knew that one -- what she was about to disclose that
she was pregnant and obviously in an unmarried state, she thought there might be adverse
employment action. So she knew that these tenants were in effect. CHIEF
JUSTICE RABNER: You mentioned what she had revealed. Can you clarify from the record
how did the school determine that she was unmarried. PETER G. VERNIERO:
The principal said she knew she was unmarried. The principal said, sister lee said that
plaintiff told her that. Plaintiff has a different recollection. Plaintiff said she
did not tell sister lee that. It was also clear in the record that it was no secret
that plaintiff was unmarried. In fact, those are plaintiff's words when she was asked
in her deposition and plaintiff had spoken to some of her colleagues that she was engaged
and pregnant. So folks knew and I would suggest to the court that if there
is any minor factual dispute, if I would even call it that, maybe a difference in
recollection about who told whom that she was unmarried, it's immaterial because everyone
acknowledges that this case falls within the status of being unmarried at the time of
the disclosure and the disclosure is what it is. JUSTICE PIERRE-LOUIS: Going
back to the code of ethics in the statement you just read, I think you would agree That's
a pretty general statement with regard to personnel exhibiting the highest standards
of Christian ethical standards and personal integrity. There are a lot of religious
beliefs and religious tenants in within every faith and I know your argument here is that
this plaintiff she was she absolutely. PLFATT: That this would be a problem
for her, but, you know, how would any employee know that this particular type of conduct
would fall underneath this code of ethics and would result in their termination? Because
in this particular case, employees didn't even have to be a members of the Catholic faith.
PETER G. VERNIERO: Right. JUSTICE PIERRE-LOUIS: At all.
So, I'm struggling to understand how this very general statement in the Archdioceses
cease code of ethics would put any employee on notice specifically with regard to the
various things that this religion and many religions frown upon. PETER G.
VERNIERO: Right, yes, yes, Your Honor. The two items that I indicated in response to
the chief justice question, that's found at Roman numeral 1 of the ministerial handbook
and that's at 1:44 A Na sifter section this is found at 271 A. There are specific items
of. JUSTICE PIERRE-LOUIS: Those items don't say anything about premarital
sex? PETER G. VERNIERO: They do not explicitly, but they do speak about
immoral conduct and adult Tri those are the two listed and it is canon law that adult
Tri and immoral conduct include premarital sex. That is very clear from the record in
this case. JUSTICE PATTERSON: She actually said that she understood that
premarital sex was considered, quote/unquote, not acceptable am I correct. PETER
G. VERNIERO: That is correct. JUSTICE PATTERSON: It is more than she
realized there would be a problem. What she was asked at her depositions I understand
it really about that tenant question she acknowledged that she knew it.
PETER G. VERNIERO: She did. She -- she acknowledged everything that needs to be
known in this case. Also, just Justice Pierre-Louis I wanted to make one other
point, that I am unaware of any general law of employment, certainly in this civil context
and I'm not aware of any in the pro rogue y'all context where an employee must list every
possible offense that will relate -- that will result in discharge. I mean, that is
something that I think is new that the Appellate Division brought into this holding.
And we could imagine how impractical that would be, to list in that level of detail.
JUSTICE PATTERSON: I'd like to ask you about another aspect of the Appellate
Division's decision and that is the sort of duty of investigating the entire work force
and absent that it's a pretext. PETER G. VERNIERO: Right.
JUSTICE PATTERSON: Now, tell me why this analogy is wrong, if there's an anti-embezzlement
policy in a company, for example, and that is raised as the reason for discharge as a
defense to a discrimination case, is there any law suggesting that absent an investigation
of the entire work force to find out if they're secretly having their hands in the
'til that vital of anti-impress sellment policy would not be a pretext. PETER
G. VERNIERO: I'm not aware of any in the civil context and certainly in the religious
context, this is the first of its kind as far as I know for New Jersey, there are some
other cases, Klein and redhead which I distinguish in my briefs but Your Honor is
correct. JUSTICE SOLOMON: I mean, you may have partially answered this,
why does it matter whether she knew that premarital sex was a violation of a tenant of
the Catholic church and, you know, is there any dispute that it is, in fact, a tenant of
the Catholic faith. PETER G. VERNIERO: There is no dispute that it is
a tenant, there is no dispute that she violated it. That is one of the reason, Your Honor,
I believe when you're analyzing assuming chief just tits were still in the statute your
part of the discussion why there's no elaborate pretext McDonald Douglas analysis required.
When you're in the statute and you have a religious tenant and we know it's been
violated, and no one is challenging the tenant and here we had the added fact of she knew,
then that basically should end the case. Now, you might get a little bit of discovery
just to make sure the tenant itself is not something that's being made up, but that's
not this case. JUSTICE SOLOMON: I take it you're arguing whether or not
that is specifically stated in any of the rules or handbook or whatever is completely
irrelevant here. PETER G. VERNIERO: It's irrelevant to this argument and
I would say it would be irrelevant in future cases unless, again, it was something that
was just so off the charts in terms of no one would even believe what the church is saying.
JUSTICE SOLOMON: That's not a contention here. PETER G.
VERNIERO: That's not this case, that's correct, Your Honor. CHIEF JUSTICE
RABNER: Other questions about the statute I did not intend to hamstrung you, please feel
free to move on to the constitutional issues. PETER G. VERNIERO: Basically
we are arguing three things, it's rather layered as Your Honor has suggested in his question,
the first, in the order that I present, the second one was the statute I'll now move
on to the broader constitutional issues, the ministerial exception applies in this case
for several reasons. Every signal that the U.S. Supreme Court has been giving from hose
San in a taborer few good relationship through the two supplemental letters that we submitted to
your will not, the Ye sheeves university letter all those statements and cases and the
inferences to be drawn from that is that because a Catholic school is so permeated with
religion and because in this case it was so clear that this teacher, irrespective of
the subject taught had to as I said in my opening, integrate faith into the classroom,
when you have a Catholic school where religion permeates every classroom, when you have
the leader of the classroom, the teacher, required to integrate faith into her or his
subject air a ya, that plus the belief of the church that the teacher's position is
important, plus the fact that Catholic law has a special canon on teachers requiring them
to be upright in integrity and privilege, all of those things together suggest rather
comfortably in my view that this particular teacher satisfied the ministerial exception.
CHIEF JUSTICE RABNER: Are there any teachers based on what you just laid out
for us who would not be subject to the ministerial exception. PETER G. VERNIERO:
I can't imagine any teacher under this code of conduct in the Archdioceses because of
the things that I just said, the requirement integrate faith and so forth.
CHIEF JUSTICE RABNER: Tell us -- PETER G. VERNIERO: I suppose there could
be a teacher somewhere that is distinguishable, but I would have to say within the
Archdioceses, I think basically every teacher would be treated the same.
CHIEF JUSTICE RABNER: Looking at the record help us understand how art instruction is
interrogated if faith. PETER G. VERNIERO: So it's interesting, Your Honor,
justice sewed Mayor in her sent in guard relationship, and typically I would not I
would rely on the majority opinion, but in good loupe There's a great enter change in
the majority of opinion and the desent ares and one of the points that she makes is one
of the teachers in the case -- in that case, in guard loupe, her only quote religious
training is the way she phrased it is she took a half day conference on how to apply
religious tenants to subject matters including art, she said including art.
And so it's not -- it's not hard to imagine religious art at this or any other school.
I do disagree. JUSTICE PATTERSON: Obviously sometimes it's been -- it's
actually happened that dissents can be a bit hyper bulge, tying that's a shocking
statement, I'm not suggesting -- PETER G. VERNIERO: There are three things
about Judge sewed Meyer's dissent that I don't think are hyperbole I think they're very
informative of what the majority was saying in guard loupe Pierre-Louis, that was the
the first one. The second one she has a wonderful debate about the teacher of world
history class or world religion class where justice sewed Meyer is saying that's secular,
that teacher would -- that teacher is telling you facts about world history or tell you
facts about religion, and justice ailette toe on behalf of the seven member majority said
no, no, we're not drawing this line, what if we're doling with a rabbi who just studies
in the privacy of his office and never goes out and preaches and problem .s the faith,
that rabbi would still be a minister within the ministerial exception. CHIEF
JUSTICE RABNER: I'm E open Ping you the focus on what what is actually happening based
on the record. Because good relationship says tell us what the teacher does and not
just the title, so on the record, explain to us how Facebook Living is infused in the
teacherring of art at Saint Theresa Saint Theresa school,. PETER G. VERNIERO:
So Your Honor just one minor disagreement with your question, (CASE CITED) says what is
important is what an employee does and rather than what a teacher does, if justice ailette
toe phrased it as Your Honor phrased the question, what is it about what a teacher does,
then I would readily concede there is that subset of teachers in a Catholic environment
who do not qualify for the ministerial exception but the majority didn't phrase it that
way the majority says what is important at bottom is what an employee does. So what
you do is you look at the whole range of employees and you say are we dealing with a custodian,
the IT direct, the school nurse, none of those folks in my opinion based on this school
would be considered ministers, but now we're dealing with teachers and the teacher who
has to integrate faith in all subject areas clearly is part of that exception.
JUSTICE PIERRE-LOUIS: I'll let you go through the record. PETER G. VERNIERO:
The record does not disclose any specific element of art. That question was not asked
of anybody. Neither of the witnesses. Now, this case is a bit old and (CASE CITED)
was not decided at that point, so maybe that's why it was not questioned or maybe it was
because it was just so obvious that a religious school would have religious art.
JUSTICE SOLOMON: But doesn't (CASE CITED) say it doesn't matter what the subject matter
is? (Simultaneous speaking.) JUSTICE SOLOMON: The question
is are they teaching them to live their lives in the faith, not the defendant teaching
art or history or geography or whatever. PETER G. VERNIERO: Teaching
the faith propagating the faith, being a role model, there were other parts and I didn't
get an opportunity to highlight them in the school's Policeses that talked about being
a role model for your students. JUSTICE SOLOMON: And (CASE CITED) says
that. PETER G. VERNIERO: (CASE CITED) there's a suggestion of that in
hose San in a taborer and it's all part and parcel of what it means when a parent sends
a Strubel to a Catholic school. JUSTICE PIERRE-LOUIS: In (CASE CITED)
the court was pretty specific in identifying the fact that those particular teachers
provided moral stewed responsessibility educating their students in the faith specific
to the facts of those employees' functions within the school. So isn't it important
for us to understand what this particular teacher's function was at the school as
opposed to just relying on the fact that every teacher at the school is required to
integrate the tenants of the faith? I mean, again, that's a pretty generic statement
for someone who -- I mornings Jim teacher teach, a Jim teacher is a teacher. If at one
particular school the praise prays with students after class during class or somehow
incorporates the faith that's a different snare from a Jim teacher that does not do that
but it sounds like your argument is just relying on the general statement that teachers,
every school within the Archdioceses is required to integrity their faith and it sounds
like your response to the chief's question with regard to whether there's any teachers
that wouldn't fall within the ministerial exception, your answer was you can't foresee
that there are any teachers that would fall outside of that exception. And in that case,
doesn't the exception just become the rule in every Archdioceses that has that particular
policy that's an an exception if if it's everyone. PETER G. VERNIERO:
Well, a few -- a few elements to your question, Justice Pierre-Louis, justice ailette
toe in his -- and the seven member majority, you are correct they listed a number of things
in that case why this -- those particular teachers qualified. But the majority also
said that they were more than enough reasons suggesting that you did not have to go down
that list and have every one of those lists present in another case. That's my first
response. My second response is again drawing from justice sewed Meyer's dissent she
went down that list and what she said is really just boils down to one thing: Is the
teacher in the class are you familiar a person that the church considered considers
important to its mission. CHIEF JUSTICE RABNER: So is it enough to envogue
the ministerial exception for the school to direct all teachers you should integrate faith
into your teaching. Does that cover it. PETER G. VERNIERO: Well it's
a little bit more than that, Your Honor, it's integrate faith, it is you are a role model
for your students the, you will bear Christian witness, you will approach all issues
with Catholic tenants in mind, so it's not -- it doesn't boil down to a piece of paper.
That's part of it. You know, the reason we have so many documents put into this case
is because it goes to the overarching question that (CASE CITED) asks yous and that is
was this position important to the church in its faith based mission. So we put in all
of these documents you see, and there's more than what I just said, time doesn't need
to permit me to go through all of these. It's not just you better talk about religion
in your art class, that's part of it. But there's many, many other parts to it. It's
part and parcel of what it means to be in a Catholic school, to be a teacher, a
propagator of the faith, a defender of the faith, all the things that these documents
expected, and another point, chief justice, in her deposition, sister lee said she never
had any question or problems or calms with the way the plaintiff was managing the course
in her classroom sroom. So that is a very good inference that she was following the
requirement of integrating faith in her classroom. JUSTICE PIERRE-LOUIS: But
we don't know that. PETER G. VERNIERO: We don't have something in the
record, but even though we look at facts most favorably in the light of the plaintiff,
when you are dealing with a constitutional question and particularly the first
amendment. I'm reminded of what Judge said in the Seoul case which we site in over brief
she says when an appellate court is looking at -- and that was a summary judgment case
as well. When the appellate court is looking at the first amendment when it's looking
at constitutional facts, when you have all of this overlay of church autonomy. The
appellate court should make its own review of the facts and is entitled to make its own
reasonable assumptions. CHIEF JUSTICE RABNER: Who has the burden of proof
on the ministerial exception? PETER G. VERNIERO: It's an affirmative as
sent of defense so far that may change but I believe it's an affirmative defense. I
think it's a legal determination. I don't think it's evidentiary in the sense that one
side has the burden of proof or the other, that's my personal opinion, but it's clearly
a legal decision, and obviously, if the church doesn't do enough to convince a trial
court, then the Court would rule against it, but I've never seen it read in terms of a
burden. If I had to peg it one way or the other, I would say because it's a legal question
that benefits the church, you would look to the church to supply the information.
JUSTICE PATTERSON: Would you absent good lawn, would you concede you have an uphill
battle if you were relying totally on hose San in a, and the reason I say that is because
the court went out of its way to say that the teacher there taught secular subjects but
also taught a religion course class four days a week and there were some definitive facts
that would have differentiated that teacher from other teachers in that school that, you
know, photos -T guard loupe. It's a very interesting landscape but would you be making
this argument under solely taborer. PETER G. VERNIERO: We would be making
a different argument under taborer and under generallyized church autonomy which is the
broader autonomy of which the ministerial exception is a subset. I agree
with Your Your Honor, (CASE CITED) really clarifies it for us but we would be making
the same general arguments under the ministerial exception and we certainly would be
making the same general arguments under the generallyized church autonomy.
JUSTICE PATTERSON: Now you submitted the yearn shove case with a letter and that is a
denial of a petition but there's a statement by a couple of justices there. What is
the significance of a statement by I think it's -- is it justice sewed justices.
PETER G. VERNIERO: I believe it was four justices in that statement and four justices
although a different set of four in the Gordon college. JUSTICE PATTERSON:
That's not presidential. A It is not president but what is so remarkable
to me about those two statements is that, the statement does more than just express an
opinion of how the individual justices feel about a certain issue, the yearn shove case
went so far as to say and I'm paraphrasing, we got enough votes to grant in this case
and we're very covenant the court is going to support position, I have never seen that
in a statement and that was written by the same author of (CASE CITED). Same with Gordon
college, the author visite (CASE CITED) rights a statement in which four members of the
court join, obviously enough to grant cert and guard relationship -- Gordon college is
very instructive, Your Honor, because the teacher in the school in the Massachusetts
case, the Gordon college case was very similar in our facts, it was a quote, secular course
being taught and the supreme judicial court of Massachusetts said that's not enough for
(CASE CITED). It goes up to the Supreme Court and justice the author of (CASE CITED)
says no wait a minute, even a nominal secular class and he USED the phrase nominally
secular I believe because he was telegraphing the point I made earlier that when you're
in a Catholic setting, all courses are infused with a faith based lens, at least that
was the requirement in Gordon college, and that's the requirement here, and those four
justices said, we have enough to take cert, we're not doing so because of technical
jurisdictional requirement but that statement expressed very clearly that they did not
agree with this idea that you have to lead kids in prayer or teach an overtly religious
course in order to be considered for the ministerial exception. So it is.
CHIEF JUSTICE RABNER: If it's not presidential perhaps we should move beyond it.
PETER G. VERNIERO: I'm just answering your question, Your Honor. CHIEF
JUSTICE RABNER: Let me ask you, as you read the case law, was the Massachusetts wrongly
decided. PETER G. VERNIERO: It was for the same reasons that I've been
arguing, yes. Now, if I may, unless the court has other questions on the
ministerial exception, I'd like to talk a little bit about the more generalized church
autonomy because that also segues into the remaining issue, which I think is one of the
most significant and that is this highly intrusive rule of law that the Appellate
Division included in a published decision. Church autonomy which was most recently expressed
in guard relationship even though (CASE CITED) was a ministerial exception it's all part
of the generalized church autonomy. The court makes clear under general church autonomy
and. Religious organizations have the right to pick their own work force. Have the right
and the autonomy to govern their own work force. And you see that implicit in the religious
of tenants exception under the LAD. This case falls squarely in that because
the reason for the discharge was a wholly doctrinal reason. You know, the other side
is making a point about well that wasn't the real reason, there was a secret reason,
right, that's what pretext is all about. There was no secret reason, this rational never
changed from the first moment it was explained to plaintiff. It had never changed in
two depositions interrogatories, and two appeals up and down the Appellate Division.
Unlike some of these other cases where you see employers with shifts explanations and so
forth. None of that -- none of that is here. So the school has been very consistent and
is a simple matter of who gets to decide how to manage the work force particularly with
a critical employee such as a Catholic school teacher. Church autonomy
says clearly, that's the church. And the first amendment says clearly, that's the church.
So if there is this tension and Justice Pierre-Louis, I think that may have been part
of your question as well. If there's this tension between what the church thinks is
right for its own internal management and what the law of discrimination might say about
a claim, the balance has to be struck and the first amendment has already struck it in
favor of the church,. So in a nutshell, that's the church autonomy
question. The third issue for which the Court could dismiss this case,
and right an opinion even if it decides chief justice not to comment on the ministerial
exception I think you would still have to comment a little bit on first amendment and
church autonomy is this rule of law, is this whole novel notion of pretext. I
will not go into detail with the two depositions of sister Theresa, there are many names
subject to confidentiality order but the trial court spoke about them in general terms
and I would just say I commend it and I'm sure the Court would do it, but I commend you
to read both depositions very clearly. It's actually chilling every time I read those
depositions to hear the kinds of questions that were being posed to sister lee in civil
litigation in the State of New Jersey. I cannot imagine a jury, if it ever got that
far, listening to those same questions and listening to a witness being asked those
questions going so far as to ask employees what their sexual preferences were, whether
they were having homosexual affairs with other faculty members, that is the place where
the Appellate Division has brought us and that rule of law comes directly from plaintiff's
brief to the Appellate Division and also comes directly from what the plaintiff argued
before the first Judge that it's a matter of pretext if you don't ask these probative
questions, these entirely personal intrusive questions, then that is -- that fact alone
will be an element of pretext, enough to get to the jury. JUSTICE PATTERSON:
Before you get there, before you get to the personal questions and the religious element
of this case which is obviously an important element, the secular version of this and
tell me if I'm missing something, the secular version of that rule of law, which would
apply in your run-of-the-mill employment discrimination case is you must assure
yourself that nobody is -- nobody else in this entire work force, be it 25 or 25,000 is
now violating what I now know what this employee is violating. There's something about
the religious element of this that would cabin that rule of law in or is that now under
the Appellate Division's decision a new aspect of LAD generally? PETER G.
VERNIERO: I don't see anything that would cabin that in. I mean, it was couched obviously
in terms of a religious tenant but if I'm a litigant in a future LAD case, I'm looking
at this public decision and I'm gonna argue pretext because even though an employee came
back from lunch innovative Bated or was found doing something inappropriate in his or
her office, you can't fire that person, you can't terminate that person unless you engage
in this complete work force inquiry. Not only is it untenable. JUSTICE
PATTERSON: If someone is fired for a statement made by a racially charged statement made
on Facebook, under this theory,, it's pretext unless the employer has investigated the
Facebook pages of every other employee. I mean it seems to be that. PETER G.
VERNIERO: Yes, assuming the complainant was in a protective class, yes. JUSTICE
PATTERSON: Protected class, yes but in another case that would be pretext because the
investigation of the entire work force has not happened. PETER G. VERNIERO:
You're absolutely correct, which is why I said in my opening, I used the phrase continual
injury constitutional injury. I mean, even if -- and I hope this is not the result, but
even if this case went back to be tried and the church won, this rule of law remains
embedded on the books, and one thing that the Appellate Division -- many things actually
but one thing that really sticks in my mind, Justice Patterson, as to why the Appellate
Division really respectfully did not think this through as I believe it should have, is
what would have happened if sister lee had done what the Appellate Division had asked?
She had asked her 20 plus employees these intimate questions and let's say half of them
told the truth and said, yeah, I have sinned in this area or yeah, I have violated that
tenant. Would she then have had to fire those folks or engage in some sort of discipline
retroactively, and if not, would that be USED as pretext in the next case and the next
case and the next case, so this all builds on each other and chief justice, you can write
an opinion disposing of this case and dismissing this claim without having to precisely
draw the line that crosses over into unconstitutional entangledment because this
case is so clearly over the line in my Essex County Tim makings, so clearly over the line.
And we just need to look at plaintiff's proposal of screening plaintiff proposes screening
the workplace in advance asking all of these questions, these personal questions in
advance on a job application, and actually that really wouldn't solve the Appellate
Division's rule of law either because those screening methods on a job application would
be one time only, what the Appellate Division Envisions is that you have regular updates
of your work force. The trial judge was so incredulous when he heard this
from plaintiff's advocate at the first trial, read this in the transcript, he said are
you serious. We're -- the church is pose supposed to pole its work force on these questions,
that was his response, I'm hoping this court will have the same response. CHIEF
JUSTICE RABNER: Any questions anyone. Anything you'd like to add. PETER G.
VERNIERO: No, Your Honor. CHIEF JUSTICE RABNER: I'll have you back for
rebuttal. Mr. Chopko. Please go ahead. MARK E. CHOPKO: Good morning.
Mr. Chief justice, justices and may it please the the court. I'm mark chopping from
stradly Ron none Stevens in Washington D.C. on behalf of am meek Kaslar New Jersey Catherine
conference, thank you for allowing me to present argument in this particular case on behalf
of the organization of Catholic bishops of New Jersey, especially the aspects of the
case that couldn't Vern the govenors of school and operations I make three basic points,
the general point about the law, a specific application of the law, and a third point
about entangledment. So the first point which you discussed in the first
part of this argument is that the ministerial exception is a specific application of
the general law protecting the churches from noninterference from the government in the
administration and governance of religious institutions, schools especially primary
schools are integral to the operation of churches in the United States in every faith
community and they are part of the way in which the faith is transmitted on from one
generation to another and they've always enjoyed the special I would say say not just blessing
of the law, but there's been a certain general principal of noninterference with operations
of churches and primary schools in particular. This unbroken line of cases starts with
Watson against Jones in 1871 and extends through a line of cases in the mid 20th century
Which are in our briefs (CASE CITED) morsuresly and taborer ten years ago in the last
couple of terms guard relationship which has been discussed -F. So the
ministerial exception is part of this general rule that protects churches and primary
schools from interference. The second point is to the specific application
of the rule. The ministerial exception, my view applies which each of these three prongs
is satisfied. The minister is suing her church for a claim arising out of the terms
and conditionses of minister Tri, in this case there's no dispute about the religious
character of the school and its relationship to the church so it is a -- it is a church
or a church equivalent religious institution for the application of the law and there's
also no dispute that this arises out of a term and condition of her -- of her minister
Tri, the only question that's been reserved is whether she is a minister, and the issue
then turns on in my view whether the teacher in question occupies a question of ministry.
I know (CASE CITED) spends time talking about what the person does but you can't take
-- you can't decouple what the person does from the position of ministry and the relationship
between the position and the EV ranch rising teaching preaching mission of the George
charging church, she did in fact occupy a position of ministry, the Appellate Division
found that she did not. And I think that the court got that wrong. JUSTICE
PIERRE-LOUIS: What about her position was a position of ministry? Based on the facts
of this case aside from the general statement that teachers must integrate faith into
their classrooms. MARK E. CHOPKO: I'll answer it in two ways, first I
think in this case she occupied a position of ministry because of the expectations that
are put on her and all primary school teachers about being a Christian witness, being
a role model, and not saying or doing things that are contrary to the teaching of the
church, so it's not just about the four corners of what happens in the instruction y'all
time the 45 minutes in the classroom but especially when it comes to teachers, it
applies more broadly in generally to who they are. It's not what it's the why.
JUSTICE PIERRE-LOUIS: So all teachers, the exception would apply to all teachers.
MARK E. CHOPKO: It could be, it's going to depend on a couple of things I think.
It's going to depend on the character of the school. Are we in a primary school, a
secondary school or college and university, the Catholic tradition the primary schools
is integral especially to the advancement of the faith with the young and that's where
the role model Christian witness is part of that. JUSTICE PIERRE-LOUIS: So
teachers in secondary schools that's not the same even though there are religious courses
and the faith is pretty -- is also integrated in high schools and other -- I'm not
understanding. MARK E. CHOPKO: It could be but I'm just saying if you
look at the teaching documents of the church, because each community is going to be
different, the primary school is especially important, the secondary schools are also
important but when you get at least in the Catholic tradition into the tertiary schools,
the higher education, then you're talking more about people who are teaching the about
fill this solve and theology. In recalls. The tertiary schools are also considered
to be integral to the advancement of the faith and you must be a practicing member of
that church in order to be able to teach in that school or you have to go to a ministry
board or a board of directors in order to get approval. I'm saying -- I want to be
complete bought I think that you have to look to the document it is of the church to find
part of that answer. And I also think that if you look at the case law, if you look
at lemon and you look at Catholic bishop of Chicago against the NLRB, both Supreme Court
cases, the lemon case turns on the fact that the teacher stance in that case was
unconstitutional because it was being money given to the teachers and they said look,
these are integral to the advancement of the mission faith and teaching of the subject
church. So it's unconstitutional to aid them because the position of teacher is so
integrated into the advancement of the church. And that's carried over in NLRB and Catholic
bishop of Chicago where the court construes the national labors relation act in order
not to interfere with the don't have Nance of churches especially on the idea that the
role of teacher is integral to the advancement of the faith. So basically,
captures what I wanted to say on my second point, the third point is about entangledment,
and I think that the issue is that if this court affirms the Appellate Division, then
I think both the resolution of this case and future (case cited)s are gonna be
problematic. I do think Justice Patterson that this rule will have to ap
My more broadly against the board. It couldn't just apply to religious schools there's
nothing about religious employer that makes this rule that this rule can be cab bond
and only applicable to them but I also think that if we're -- JUSTICE PATTERSON:
I suppose -- the privacy aspect of the question might differentiate it from other but
not necessarily but in terms of the actual rule that the Appellate Division has formulated
here which is that there must be a -- an investigation of everybody for whatever the
violation is or it's a pretext. MARK E. CHOPKO: Right.
JUSTICE PATTERSON: Which is a very strong statement, I don't see boundaries on that?
MARK E. CHOPKO: I agree with that but if there are -- my point is if there
were a boundary on it, I think it would be does Crim are the and Argument you'llly is
violation of the free and he said rights of religious institutions. And
again, if you look at the body of law for Exercise law which starts and ends with Smith
at this point, the singling out religious entities for this kind of judicial access
would be discriminatory and therefore be subject to strict scrutiny, and it wouldn't apply
more generally across the board. I also think that as we point out in
our brief that doing This kind of inquiry, you know, just say well wait a minute when
someone comes in and says I'm sorry I violated this rule, can I keep my job or words to
that effect, you say we have to go and do an investigation, we have to talk to everybody
as we point out in our brief, for the Catholic church at least this would violate the
pre-sevens of canon law that members of the church have rights including the right to
a good reputation, and not to be subject to this kind of inquiry. So this
-- Hispanic gelling what I would recard as up Weir on this face would violate the rights
of the church. CHIEF JUSTICE RABNER: Suppose no inquiries were needed
that you had multiple employees who were single and either had integrated or were pregnant
themselves, how far does the first amendment go in this respect. Can the church -- can
any religious organization choose to terminate one but not another employee in its
discretion. MARK E. CHOPKO: I don't think -- that's an excellent question
it is one that I have to tell you that I worried about in some of my work especially
work with other clients, because I do think that there is a certain facts and circumstances
character Toth so for example, back to the earlier questions that if we were talking about
somebody on the maintenance staff or somebody who is in some other part of the institution
or not involved in a position of ministry, you might have a different -- you might come
at these spaces come out of them differently but I do think this is a question which
faith communities do struggle with. The issue in my mind is is this a question
for the State or for the church. I think it's a question for the church, I do think
that different cases may admit it have different answers but I think that --
JUSTICE SOLOMON: Are there others employed that are acting in a way that is in conflict
with the teaching of the Catholic church and they are kept on, you have a single pregnant
teacher and they are there but this teacher's fired, that's classic McDonald Douglas
pretext. That's you lose, you've now lost your argument -- your argument's out the window
how can you say that depends I think it's pretty clear, the difference is in this case
there's no evidence, the only evidence is the one teacher that they knew was engaged
in premarital sex was a male teacher in the Archdioceses school who's girlfriend got
pregnant and they fired him. MARK E. CHOPKO: Yes. JUSTICE
SOLOMON: So in the case the chief raises, you lose, you lose that case. That's a pretext.
But in this case, that's a little different. MARK E. CHOPKO: Let me
again answer this two ways, firstly to your specific point. I take your point, I'm
telling you that my experience is that I've never encountered this case, so to my mind
it's a hypothetical. I'll never encountered a case where somebody discovers that there's
other people violating the same rules is and are kept on. So that's the answer to the
question. I'm also saying that -- JUSTICE PATTERSON: Your
position is that's entirely up to the church or wouldn't that be under a pretext analysis
if there were inconsistent handling of the same -- with knowledge across the board is
as Justice Solomon suggested I know you don't want to concede anything on behalf of any
client in this situation but that's a pretty different situation is it not.
MARK E. CHOPKO: It's a much different situation from where we are here, but I'm saying
that ultimately, if you're gonna -- if you're going to have that kind of inquiry, it's
very -- I think it's fair to ask but why is this case different -- why is case different
from case B if it happens. CHIEF JUSTICE RABNER: So my colleague Justice
Solomon is asking a thoughtful question about LAD. I'm asking you to help us understand
your view of the scope of the first amendment here. Would the first amendment bar a
claim from the pregnant teacher single pregnant teacher who was fired in light of the
fact that there's another one across the hall, hypothetically, who was kept on.
Does the interpretation of the first amendment allow for discrimination as we've heard
in some of the briefing. MARK E. CHOPKO: Yes, if the reason for the
distinction between the cases turns on an application of church law and teaching.
CHIEF JUSTICE RABNER: Let's assume that simple example they are both teachers,
not talking about a custodian or an IT staff member, two teachers, similar facts, one
is let go, one is kept on, does the first amendment pose a bar to a lawsuit by the
terminated teacher? MARK E. CHOPKO: No, not on its face, in the specifics
of it, again, I would want to reserve to know more about how the case gets developed
and how it gets tried, for example, is the jury going to be asked to weigh the value assigned
to different aspects of church teaching which could be entangling. JUSTICE
PATTERSON: I think the hypothetical is saying the same teaching is resulting in inconsistent
treatment and it would seem to me that's not a first amendment issue. MARK E.
CHOPKO: On its face, yes, but I was saying that as applied, it may be. CHIEF
JUSTICE RABNER: Other questions anything you'd like to add. MARK E. CHOPKO:
No, thank you, I'm very much respectfully asked that the Appellate Division's decision
be Reversed thank you so much CHIEF JUSTICE RABNER: AUTO ERIC C.
RASSBACH: MR. CHIEF JUSTICE, JUSTICES AND MAY IT PLEASE THE COURT, I WANTED TO JUST PICK
UP WHERE THE DISCUSSION LEFT OFF JUST NOW. CHIEF JUSTICE RABNER: I WANTED
TO GO THERE WITH YOU As WELL. PLEASE DO. ERIC C. RASSBACH: OKAY. GOOD.
THE PRETEXT DISCUSSION KIND CH FALLS INTO TWO DIFFERENT THINGS UNDER THE FIRST AMENDMENT.
ONE OF THE MINISTERIAL SECTION AND ONE UNDER CHURCH AUTONOMY. THE MINISTERIAL IS SIMPLE.
IT DOESN'T HAVE TO HAVE A DIFFERENT REASON. PRETEXT IS NOT -- IF YOU DECIDE MS.
CRISITELLO IS A MINISTER, THEN PRETEXT IS IRRELEVANT. ON THE CHURCH AUTONOMY SIDE,
IT'S CLEAR YOU DO HAVE TO HAVE A RELIGIOUS REASON. THIS COURT SAID THAT IN THE GALLO CASE
WHERE, YOU KNOW, THEY ONLY OFFERED BUDGETARY REASONS AS THE REASON FOR THE TERMINATION
IN THAT CASE. AND THEN THE BRICE CASE FROM THE TENTH CIRCUIT IN 2002 THAT THIS COURT
RE-LIED ON. AND MCKINNEY CELL VEE, ALSO 2002, MAKES VERY CLEAR YOU HAVE TO HAVE A RELIGIOUS
REASON FOR IT. SO THE PROBLEM COMES UP WHEN, WHAT IF THE PLAINTIFF SAYS WELL
THE RELIGIOUS REASON IS NOT RIGHT. COURTS HAVE HAD DIFFERENT PROLTSS TO THIS. FOR EXAMPLE,
AT ONE END OF THE SPECTRUM, SO TO SPEAK, WOULD BE EEOC AGAINST MISSISSIPPI COLLEGE. THAT
CASE THEY SAID YOU JUST CAN'T TOUCH PRETEXT. SO IN THIS CHURCH AUTONOMY CONTEXT YOU JUST
CAN'T TOUCH IT. IF YOU LOOK AT THE CONCURRENCE IN HOSANNA TABER, THEY TALK ABOUT PRETEXT
QUITE A BIT TOWARDS THE END OF THEIR OPINION AND THEY ARE COUCHING IT NOT IN TERMS OF THE
MINISTERIAL SPECIFICALLY BUT ACTUALLY RELIGIOUS AUTONOMY GENERALLY AND THEY SAY IT NEEDS
TO BE OFF LIMITS AS WELL. AS WE WERE ALL DISCUSSING EARLIER, THAT'S NOT PRECEDENT.
BUT I DO THINK IT HAS A LOT OF REASON BEHIND IT. THAT'S ONE LEVEL. A SECOND
LEVEL WERE WOULD BE SOME COURTS HAVE SAID THAT PRETEXT ANALYSIS CAN BE DEALT WITH WHERE
THERE'S IDENTICAL CONDUCTS. THAT WAS WHAT YOU WERE JUST TALKING ABOUT. YOU'VE GOT PERSON
A WHO IS, YOU KNOW, AN UN-MARRIED WOMAN GETS PREGNANT, DOES GET FIRED AND PERSON B
DOESN'T. IDENTICAL CONDUCT. IN THAT SITUATION, SOME COURTS HAVE SAID THAT YOU COULD ACTUALLY
DECIDE THE PRETEXT QUESTION. SO THAT WOULD BE KRAMER CITED IN OUR BRIEF FROM THE THIRD
CIRCUIT AND THE HALL CASE FROM THE SIXTH CIRCUIT ALSO CITED IN OUR BRIEF. BUT
NO COURT IN THE COUNTRY OTHER THAN THE APPELLATE DIVISION HERE HAS EVER SAID THAT WHERE
THERE IS NO EVIDENCE OF ANYTHING, MERELY THE FAILURE TO INTERROGATE SUFFICIENTLY, THAT
YOU WOULD GET TO -- YOU WOULD GET TO A PRETEXT ARGUMENT. AND THAT REALLY RUNS IN THE
FACE OF THE ENTIRE RATIONALE BEHIND THE CHURCH AUTONOMY DOCTRINE. AGAIN I'M TALKING ABOUT
THE BROADER UMBRELLA OF CHULTHS AUTONOMY DOCTRINE WHICH LOOKS AT IT BOTH FROM THE ANGLE
OF THE RELIGIOUS BODIES AND FROM THE ANGLE OF THE GOVERNMENT. AND FROM THE GOVERNMENT
ANGLE THERE'S A HUGE ENTANGLEMENT RISK HERE. IN GAUD LOOP PAY THE COURT REJECTED A SIMILAR
ARGUMENT WHERE THE PLAINTIFF SAID SHE WASN'T A PRACTICING CATHOLIC. AND THERE'S A SORT
OF QUESTION ABOUT, WELL, WHAT WERE THEY SUPPOSED TO DO, INTERROGATE HER ABOUT WHETHER
SHE WAS GOING TO MASS EVERY WEEK? THIS IS IN THE OUR LADY OF MAJORITY OPINION. YOU ACTUALLY
SEE THE SAME CONCERN IN THE CARS SON CASE THAT WAS JUST CITED. IT'S NOT AN AUTONOMY CASE
BUT IT WAS DECIDED LAST YEAR WHERE IT WAS A CASE INVOLVING A MAN IN A SCHOOL TUITION
ASSISTANCE PROGRAM, BUT THE COURT SAID IN 2001 IN THAT OPINION THAT THERE WOULD BE SUBSTANTIAL
CONCERNS ABOUT ENTANGLEMENT IF YOU HAD TO FIGURE OUT HOW A RELIGIOUS SCHOOL WAS PURSUING
IT'S RELIGIOUS MISSION. SO I THINK THAT THIS RESULT FROM THE APPELLATE DIVISION
WOULD BE LEAD TO SOME REALLY ABSURD RESULTS, ESPECIALLY FOR MY CLIENTS. BECAUSE IF YOU
CAN THINK ABOUT HOW MANY RULES THERE ARE IN THE CATHOLIC CHURCH, THAT YOU LOOK AT THE CODE
OF JEWISH LAW, IT'S -- DEPENDING ON THE VERSION, IT'S FIVE VOLUMES AND IT'S IN HEBREW.
ARE YOU TREATING EVERYONE CONSISTENTLY IN ALL THESE DIFFERENT CASES. YOU WOULDN'T EVEN
HAVE THE TIME TO INTERROGATE WHETHER EVERYONE's FOLLOWED ALL THE RULES BECAUSE THERE'S
A LOT OF RULE. IT'S A HIGH OBLIGATION RELIGION. JUSTICE PATTERSON: HOW
DOES THAT RE-LATE TO THE ARGUMENT THAT WE'VE HAD SOME DISCUSSION OF THIS MORNING, AND
THAT IS THAT PREMARITAL SEX WAS NOT PER SE LISTED ON THE THINGS NOT TO DO? ERIC
C. RASSBACH: RIGHT. I THINK -- I DON'T THINK THAT THAT MATTERS. I THINK JUSTICE SOLOMON
WAS SORT OF POINTING THIS OUT. THAT IS, ULTIMATELY THE NOTICE PART DOESN'T MATTER AS
MUCH. NOTICE ACTUALLY DID COME UP QUITE A BIT IN THE LITIGATION OF BOTH HOSANNA TABER
AND OUR LADY AND THERE'S A LOT OF DISCUSSION ABOUT THAT. THE REASON IT'S AN ENTANGLEMENT
CONCERN, THAT IS, EVEN IF SOMEONE DIDN'T GET NOTICE OR WHAT HAVE YOU, YOU STILL DON'T
WANT THE GOVERNMENT GETTING INVOLVED WITH RUNNING A CHURCH OR OTHER RELIGIOUS BODY. AND
SO SOMETIMES THAT'S WHY, FOR EXAMPLE, COURTS WILL BRING UP THIS ISSUE SUA SPONTE. FOR
EXAMPLE IF YOU LOOK AT THE SIGH OPINION CASE IN THE THIRD CIRCUIT, THERE THE TRIAL COURT
SAID IT LOOKS LIKE A BIG PROBLEM. SHOULDN'T WE DO SOMETHING ABOUT THIS, BECAUSE NEITHER
PARTY HAD -- THEY'RE TREATING THIS JUST AS A GARDEN VARIETY CONTRACT DISPUTE AND THAT'S
BECAUSE THE COURTS HAVE AN INDEPENDENT DUTY IN MY VIEW TO ENSURE THAT THEY ARE KEEPING
THE CHURCH AND STATE SEPARATE. AND THIS CASE WOULD BE SORT OF A POSTER CHILD FOR
ENTANGLEMENT. CHIEF JUSTICE RABNER: CAN I GO BACK TO WHAT YOU WERE SAYING
EARLIER? I DIDN'T WANT TO INTERRUPT YOU. I THINK I HEARD YOU SAY THAT IF A RELIGIOUS
ORGANIZATION KNEW OF A SINGLE WOMAN WHO WAS PREGNANT AND KNEW OF A MAN WHO WAS SINGLE
AND HIM PREGNANT 98ED A SINGLE WOMAN, EVEN IT CHOICE TO FIRE ONE BUT NOT THE OTHER, THE
FIRST AMENDMENT WOULD NOT BE A BAR TO THAT LAWSUIT THAT COULD BE BROUGHT. DID I
UNDERSTAND YOU CORRECTLY? POTENTIALLY. ERIC C. RASSBACH: I MEAN I THINK
THAT STARTS TO GET INTO THE KRAMER AREA. OBVIOUSLY THAT'S NOT THIS CASE, AS JUSTICE
SOLOMON WAS MOINTING OUT, THE PERSON AT THE OTHER SCHOOL DID GET FIRED. BUT I DON'T THINK
THAT THAT'S -- FIRST OF ALL, I DON'T THINK YOU HAVE TO REACH THAT QUESTION. IT WOULD BE
DICTA IF YOU DID REACH IT. BUT IT IS A DIFFICULT QUESTION BECAUSE OF THE FACT THAT SOMEONE
SHOWS IF THEY'RE PREGNANT VERSUS NOT. CHIEF JUSTICE RABNER: ASSUME KNOWLEDGE.
THE FACTS ARE NOT IN DISPUTE. IS THE FIRST AMENDMENT A BAR? TO THE TERMINATION SUIT
OR NOT? ERIC C. RASSBACH: WHEN YOU SAY KNOWLEDGE, ARE YOU SAYING THEY WENT
AND FOUND IT OUT OR HOW DID THEY FIND OUT I GUESS WOULD BE THE QUESTION. CHIEF
JUSTICE RABNER: MUCH THE WAY WE'RE HAPPENED HERE AS WE'RE TOLD. ERIC C. RASSBACH:
I THINK HERE SHE BROUGHT IT TO THEM. THEY DIDN'T ASK. I THINK THAT ENDS UP BEING A FIRST
AMENDMENT BAR BECAUSE OTHERWISE YOU'RE GOING TO HAVE A SITUATION WHERE THERE COULDN'T
BE PRETEXT BECAUSE THE PERSON WASN'T -- CHIEF JUSTICE RABNER: MAYBE I WASN'T
CLEAR ENOUGH. IN THE HYPOTHETICAL, BOTH EMPLOYEES HAVE CONCEDED THIS IS WHAT
HAPPENED. IS THE FIRST AMENDMENT A BAR? ERIC C. RASSBACH: BOTH EMPLOYEES,
THE MAIL EMPLOYEE AND THE FEMALE EMPLOYEE, ADMITTED TO HAVING PREMARITAL SEX. I THINK
UNDER THE KRAMER SETTING THAT WOULD BE A PROBLEM -- NOT A PROBLEM. UNDER THE KRAMER
APPROACH THE CIRCUIT WOULD SAY YOU COULD ACTUALLY HAVE A PRETEXT ANALYSIS. I
ACTUALLY THINK THAT THE WAY THAT THE JUSTICES TALKED ABOUT IT, YOU COULDN'T GO THAT FAR.
I'M NOT SURE ACTUALLY IF IT WENT TO THE SUPREME COURT IN A CASE -- AGAIN, THIS IS A VERY
SPECIFIC KIND OF HYPO, BUT IF THAT WENT TO THE SUPREME COURT, I ACTUALLY AM NOT SURE THAT
THAT WOULD BE THE CASE. I THINK THEY WOULD PROBABLY FOLLOW WHAT THE JUSTICES SAID IN
2012. DOES THAT MAKE SENSE? THERE ARE SORT OF TWO DIFFERENT LAYERS OF WHERE IT IS AND
THIS CASE IS SORT OF WAY BEYOND BOTH LAYERS. JUSTICE PATTERSON: YOU'RE SAYING
INTRA SCHOOL PRETEXT AS OPPOSED TO PRETEXT -- HER SITUATION VERSUS NOT '0 KNOWING WHAT
EVERYBODY ELSE MAY BE DOING? THE TWO LAYERS IRAS RASSBACH SO THE TWO LAYERS, FIRST THERE'S
A LAYER OF THE COURTS HAVE SAID THAT YOU JUST CAN'T LOOK AT PRETEXT AT ALL. THAT WOULD BE
THE EEOC CASE. THAT WOULD BE THE KAG BEGAN OCCURRENCE IN HOSANNA TABER. MAYBE I WAS
SPEAKING TOO QUICKLY AND BLAZED PAST THAT. THEY'RE SAYING YOU JUST CAN'T LOOK AT IT.
KRAMER IS DIFFERENT FROM THAT. KRAMER AND HALL ARE DIFFERENT FROM THAT IN
THAT THEY SAY YOU ACTUALLY COULD LOOK AT IT IN THESE IDENTICAL SITUATIONS, IDENTICAL FACT
PATTERNS. BUT I THINK THE ISSUE IS, YOU KNOW, ULTIMATELY THIS KIND OF THING WOULD GET
DECIDED BY THE SUPREME COURT AND I THINK THERE'S ALREADY AN INDICATION FROM THE JUSTICES
THEY WOULD GO IN THAT DIRECTION AND CERTAINLY THAT OPINION WOULD HAVE QUITE A BIT OF
INFLUENCE IN THE OUR LADY CASE. DID THAT CLEAR THAT UP. CHIEF JUSTICE RABNER:
CRYSTAL. ERIC C. RASSBACH: GREAT. I JUST WANT TO ADD ONE OTHER THING.
SORT OF A FACT THING UNDER THE MINISTERIAL EXCEPTION PIECE OF THIS. HER DEPOSITION,
MS. CRISITELLO SAID AT PAGE 221A OF THE APPENDIX THAT THE PURPOSE -- SHE WAS ASKED WHY
DO YOU THINK YOU HAVE THIS HANDBOOK, WHAT'S THE PURPOSE OF IT. SHE SAYS, WELL, THE CHILDREN
IN HER CHARGE WOULD, QUOTE, LEARN BY HOW SHE HANDLED HERSELF. SO TO ME THAT'S SAYING
I'M TEACHING THEM MORALS AND I'M CONCEDING AND ADMITTING THAT I'M TEACHING MORALS BY WHAT
I DO. AND THAT KIND OF KEYS INTO WHAT THE OUR LADY OPINION SAID WHEN IT SAID FIRST OF
ALL THERE'S A JOB TO FORM STUDENTS AND SECOND THAT THEY'RE TEACHING THEM BOTH BY WORD
AND DEED. SO CERTAINLY THE DEED PART SEEMS TO ME AT LEAST BASED ON HER CONCESSION AT
THE DEPOSITION TO BE AT ISSUE HERE. I THINK YOU CAN DECIDE THIS CASE CHURCH AUTONOMY.
YOU CAN DECIDE IT MINISTERIAL EXCEPTION. YOU CAN DECIDE IT LAD. BUT I THINK ALL THREE
WHAT IS THE SCHOOL OUGHT TO PREVAIL HERE. CHIEF JUSTICE RABNER: WOULD TEACHING
BY DEED, WOULD DEMONSTRATING BY DEED EXTEND TO THE CUSTODIAN AND THE IT PERSON AND OTHERS?
ERIC C. RASSBACH: I DON'T THINK SO. IT'S AN INTERESTING QUESTION. AND
THIS ACTUALLY CAME UP AT OUR LADY ARGUMENT. TALKING ABOUT WHAT HAPPENS WHEN YOU'VE GOT
THE CUSTODIAN WHO WORKS AT THE JEWISH DAY SCHOOL AND STARTS WEARING LET'S SAYING AN ANTI-
SEMITIC T-SHIRT OR SOMETHING LIKE THAT. SOMETHING DISRUPTIVE TO THE SCHOOL. IF YOU COULD
SHOW THIS IS A VERY IS STRANGE SCHOOL WHERE THE CUSTODIAN IS SORT OF TEACHING -- HAS
THE JOB OF TEACHING MORALS AND IS FUNCTIONING IN THAT WAY, MAYBE YOU COULD DO THAT. THERE ARE
CHURCHES -- JUSTICE PATTERSON: THE EMPLOYEE HANDBOOK APPLIED HERE TO EVERYBODY,
CORRECT? ERIC C. RASSBACH: RIGHT. JUSTICE PATTERSON: IF
THE EMPLOYEE HANDBOOK IS THE CORNERSTONE OF THE ARGUMENT THAT EVERYBODY WAS ON NOTICE
WITH RESPECT TO THE EXPECTATIONS AND ALSO THE RESPONSIBILITIES OF INFUSING RELIGIOUS
DOCTRINE INTO THE TEACHING, WHY WOULDN'T IT APPLY TO THE CUSTODIAN? SIMPLY BECAUSE THE
CUSTODIAN IS NOT -- WOULD LOOK AT THIS AND SAY I'M NOT A TEACHER SO THAT'S NOT PART OF
MY RESPONSIBILITY? ERIC C. RASSBACH: I'M PRETTY SURE IT'S A FACULTY
HANDBOOK. I WOULD DEFER ON THAT. I'M NOT SURE IT WOULD APPLY TO THE CUSTODIAN.
JUSTICE PATTERSON: ALL RIGHT. THEN I MISSPOKE. ONE LAST QUESTION. WHAT IF ANY SIGNIFICANCE
DOES MS. CRISITELLO'S STATEMENT -- I'M NOT GOING TO CALL IT AN ADMISSION. SHE WAS VERY
CANDID IN HER DEPOSITION. HER STATEMENT THAT SHE UNDERSTOOD -- I'M PARAPHRASING -- THAT
THIS WAS CONTRARY TO THE RELIGIOUS TENET? I KNOW IT WASN'T PHRASED THAT WAY BUT THAT'S
WHAT SHE EXPRESSED. DOES THAT HAVE IMPLICATIONS ON THE CONSTITUTIONAL ANALYSIS? HER
INDIVIDUAL STATEMENT AS OPPOSED TO THE GENERAL ISSUE OF NOTICE. ERIC C.
RASSBACH: RIGHT. I THINK IT DOES MATTER AND I THINK IT DOES MATTER THAT SHE'S CATHOLIC
IN THIS CASE. OBVIOUSLY IN SEVERAL OF THE CASES THAT HAVE GONE BEFORE THE UNITED STATES
SUPREME COURT THE PERSON OR THE THINGS THAT HAVE BEEN DISCUSSED HAVE BEEN PEOPLE THAT
MIGHT NOT HAVE ACTUALLY SHARED THE FAITH. BUT IN THIS CASE, SHE SAYS I'M CATHOLIC. I KNOW
THIS IS WRONG. I KNEW FROM THE BEGINNING THAT THIS VIOLATES IT. THAT GOES BACK TO THE
WATSON CASE MR. CHOPKO WAS MENTIONING EARLIER. IF YOU LOOK AT THAT IT SAYS WE'RE NOT
GOING TO GET INTO LOOKING AT WHETHER SOMEONE ADHERES TO MORAL STANDARDS. THAT'S REALLY
WITHIN THE PURVIEW OF THE CHURCH. SO IF YOU JUST LOOK UP THAT PHRASE MORAL STANDARDS,
ALL THE WAY BACK TO WATSON AGAINST JONES, IT'S SORT OF SAYING WE DON'T REALLY WANT TO BE
POLICING WITHIN THE CHURCH. THAT THAT'S WHY IT KIND OF MATTERS A LITTLE BIT SHE'S A MEMBER
OF THE CHURCH. SHE'S PART OF THIS COMMUNITY AND IN THIS SENSE SHE'S BRINGING CIVIL
AUTHORITIES INTO AN INTERNAL CONVERSATION, IF YOU WILL. CHIEF JUSTICE RABNER:
OTHER QUESTIONS? ERIC C. RASSBACH: THANK YOU. CHIEF JUSTICE
RABNER: MR. MCKINNEY. THOMAS A. MC KINNEY: GONOR YOUR HONORS. MAY IT PLEASE
THE COURT. I'LL TRY TO FOCUS ON THE ISSUES THAT HAVE ALREADY BEEN BROUGHT UP. I'LL FIRST
FOCUS ON THE MINISTERIAL EXCEPTION AND WHETHER IT EXEMPTS DEFENDANT FROM THIS DISCRIMINATION
CLAIM. WE CONTEND THE MINISTERIAL EXCEPTION DOES NOT APPLY IN ANALYSIS MATTER
AND FOLLOWING GAD. THE RECORD IS COMPLETELY DEVOID OF ANYTHING SAYING THAT SHE HAD ANY
PART IN THE RELIGION WHATSOEVER. AND SO TO TRY TO INFER THAT SIMPLY BECAUSE SHE'S WORKING
IN A RELIGIOUS INSTITUTION WOULD GO WAY BEYOND THE ESTABLISHED PRECEDENT REGARDING
MINISTERIAL EXCEPTION. THAT WOULD THEN APPLY TO ANY CATHOLIC OR RELIGIOUS CHARITY, HOSPITAL
OR OTHERWISE. THERE IS NOT A SINGLE PART ABOUT ANYTHING THAT THEY DID, ANY TYPE OF ART
THAT WAS RELIGIOUS, ANY TYPE OF INSTRUCTION THAT WAS RELIGIOUS OR ANYTHING ELSE. THIS
WAS A LAY EMPLOYEE. NOT A MEMBER OF THE FAITH. THEY'VE TRIED -- DEFENDANTS
TRIED TO BRING THAT IN SAYING SHE SIGNED A CHRISTIAN WITNESS STATEMENT AND OTHER THINGS,
BUT YOU'LL NOTICE IN THE BRIEFING THERE'S NO CITATION TO ANYTHING POINTING TO HER
INVOLVEMENT IN THE FAITH FOR A REASON. BECAUSE THERE WAS NONE. THOSE QUESTIONS WERE ASKED
AND THERE WAS NONE. SHE WAS AN ART TEACHER AND SOMEONE WORKING IN THE TODDLER ROOM.
FOR THOSE REASONS WE DON'T THINK GAUD APPLIES AND THAT THE MINISTERIAL EXCEPTION APPLIES.
THEREFORE WE SHOULD GET TO THE MCDONALD DOUGLAS STANDARD IN THAT ANALYSIS. THE
SECOND ISSUE RAISED, WHETHER THE LAD OR THE FIRST AMENDMENT WOULD EXEMPT DEFENDANT FROM
THIS DISCRIMINATION CLAIM, WE BELIEVE IT DOES NOT. THIS IS NOT A CASE WHERE WE NEED TO
INTERPRET DOG MA OR IN ANY WAY INTERFERE WITH THE QUALITY OF THE CHURCH. THE ISSUES RAISED
ARE SIMILAR TO ANY TYPE OF EMPLOYMENT CASE. HERE ARE THE REASON THE PERSON IS BEING
TERMINATED. HERE IS THE POLICY THEY'RE BEING TERMINATED UNDER AND CAN WE SHOW A PRETEXT
OR A DESPERATE IMPACT BASED ON A CHARACTERISTIC. SO ALTHOUGH THERE'S A FLAVOR TO THIS
THAT GIVES IT A LOT OF ATTENTION IN THAT IT'S INVOLVING A RELIGIOUS INSTITUTION, THE
MCDONALD DOUGLAS STANDARD WOULD APPLY THE SAME WAY HERE AS IT WOULD ANYWHERE ELSE. WE'RE
NOT LOOKING TO CHANGE ANY TENTS OF THE CHURCH IN ANY WAY. REGARDING THE THIRD
ISSUE INVOLVING PRETEXT AND THE MCDONALD DOUGLAS STANDARD, WHEN WE LOOK AT THE PRETEXT
ANALYSIS, I THINK IT'S IMPORTANT TO LOOK -- WHEN YOU ANALYZE IT IT'S A "BUT FOR" ANALYSIS.
BUT FOR VICTORIA CRISITELLO'S PREGNANCY SHE WOULD STILL HAVE HER JOB. THERE WOULD NOT
BE AN ISSUE. BUT FOR HER BEING UN-MARRIED, SHE WOULD STILL HAVE HER JOB. THERE WOULD
NOT BE AN ISSUE. THE UN-WRITTEN POLICY OF A BAN ON PREMARITAL SEX, THE KEY
HERE IN THIS CASE, AND WE HAVEN'T COVERED IT IN THE EARLIER PEOPLE WHO DISCUSSED THIS,
IT HAS TO BE APPLIED UNIFORMLY. YOU CANNOT HAVE A POLICY THAT TREATS A PERSON WHO BELONGS
TO A PROTECTED CHARACTERISTIC DIFFERENTLY. AND THAT'S ACTUALLY WHAT WE HAD HAPPEN HERE.
PREMARITAL SEX COULD OCCUR ON ALL DIFFERENT TYPES OF LEVELS. BUT THE ONLY PERSON WHO'S
BEING PUNISHED FOR IT IS THE PERSON THAT SHOWS THAT SIN. I THOUGHT THE CLINE CASE WAS
VERY UNIQUE. AND I DID LOOK AT IT TO BE THE SITUATION OF A HEFTD PRINCIPLE. THE PERSON
SHOWING THAT PREMARITAL SEX IS THEN BEING TERMINATED. THAT CAN'T HAPPEN TO A MAN.
THAT CAN'T HAPPEN TO SOMEONE WHO'S MARRIED AND THAT'S EXACTLY WHAT THE LAW AGAINST
DISCRIMINATION WAS CREATED TO PROTECT. AND SO IF THIS WAS BEING APPLIED UNIFORMLY,
THEN THERE WON'T BE AN ISSUE. NOW, THERE'S BEEN A LOT OF I GUESS ONE THING THAT -- THIS
CASE WAS NOT BROUGHT TO TELL THE CHURCH WHAT THEY NEED TO DO OR ANY INSTITUTION WHAT THEY
NEED TO DO TO ENFORCE THEIR POLICY AND THERE'S BEEN DISCUSSION OF WE'RE NOT GOING TO HAVE
TO ASK EVERYONE AND GO UP TO THEM AND EN REQUIRE ABOUT THEIR SEX LIVES AND THOSE TYPES
OF THINGS. THAT'S CERTAINLY NOT WHAT'S BEING IMPLIED HERE. WHAT IS BEING REQUESTED IS
HOW DO YOU TAKE A POLICY AND HOW DO YOU DO IT UNIFORMLY SO THAT A PREGNANT PERSON ISN'T
BEING TREATED DIFFERENTLY THAN A MALE. YOU DO IT THROUGH LESS INTRUSIVE MEANS. ST. THERESA
SCHOOL -- JUSTICE PATTERSON: YOU SAID THERE'S NO EFFORT TO SAY THEY HAD TO
INVESTIGATE. THIS IS THE APPELLATE DIVISION. PLAINTIFF HERE ADDUCED EVIDENCE THAT NO
EFFORT WAS MADE TO DETERMINE WHETHER ANY EMPLOYEES OTHER THAN A PREGNANT LAY TEACHER
VIOLATED ANY OF THE PRESCRIPTIONS CONTAINED IN DEFENDANT'S CODE OF ETHICS OR ITS HANDBOOK.
THAT'S PART OF THE APPELLATE DIVISION'S DECISION. I KNOW THAT CLINE IS BEING CITED
THERE, BUT FOR YOU TO SAY THAT WE'RE NOT TRYING TO TELL ANYBODY THEY HAVE TO DO THESE
INVESTIGATIONS DOES NOT SEEM TO SQUARE WITH THE APPELLATE DIVISION'S ADOPTION OF YOUR
ARGUMENT TO THAT EFFECT. THOMAS A. MC KINNEY: YOUR HONOR, WHAT I WAS GOING
TO SAY, THERE'S A WAY TO DO IT WITHOUT BEING INTRUSIVE. WHEN SOMEONE STARTS WORKING
THERE, THEY ACKNOWLEDGE A HANDBOOK. THEY SIGN OFF ON A CHRISTIAN WITNESS STATEMENT. THAT
SAME THING CAN HAPPEN IN THE FUTURE. IN THE PRIOR YEAR, DID I STILL FOLLOW THAT
STATEMENT. DID I RE-AFFIRM THOSE THINGS. JUSTICE PATTERSON: DOES THIS STATEMENT
BY THE APPELLATE DIVISION APPLY OUTSIDE THE RELIGIOUS CONTEXT OR IS IT LIMITED? LET ME
JUST ASK YOU THE SAME HYPOTHETICAL I ASKED YOUR COLLEAGUE ON THIS SIDE AND THAT IS THERE'S
ANANTI- EMBEZZLEMENT POLICY IN A BUSINESS AND SOMEBODY IS CAUGHT EMBEZZLING AND THEY ARE
FIRED AND THEY'RE A MEMBER OF A PROTECTED CLASS AND THEY SAY THE EMBEZZLEMENT WAS A PRETEXT.
IS THERE AN ARGUMENT OR SHOULD A COURT ALLOW THAT TO GO TO A JURY BECAUSE THERE WAS NO
INVESTIGATION OF THE OTHER THOUSANDS OF EMPLOYEES FOR EMBEZZLEMENT? NOBODY EVER ASKED
THEM PERIODICALLY OR EVER, HAVE YOU TAKEN ANYTHING THAT DOESN'T BELONG TO YOU.
THOMAS A. MC KINNEY: DID THEY FIND OUT THAT SHE EMBEZZLED BECAUSE THESE PREGNANT.
THAT WOULD BE WHAT I WOULD FOCUS ON THERE, YOUR HONOR. JUSTICE PATTERSON:
THAT WOULDN'T MAKE ANY SENSE. THOMAS A. MC KINNEY: AND THE SAME WOULDN'T
HERE. WHEN YOU FIND OUT SOMEONE'S EMBEZZLING, YOU INVESTIGATE THAT. JUSTICE
PATTERSON: THAT'S NOT THE APPELLATE DIVISION'S RULING. THE APPELLATE DIVISION IS SAYING
THAT IT IS PRETEXT UNLESS THERE IS AN EFFORT TO DETERMINE WHETHER ANY OTHER EMPLOYEES
ARE VIOLATING -- AND LET'S PUT IT -- LEAVE ASIDE THE IMPORTANT RELIGIOUS ASPECTS OF THIS
CASE FOR THE MOMENT. THE CODE OF CONDUCT IN A SECULAR EMPLOYMENT SITUATION.
THOMAS A. MC KINNEY: SO, YOUR HONOR -- JUSTICE PATTERSON: IT IMPLIES THERE
MUST BE AN INVESTIGATION FOR FIRING SOMEONE WHO IS IN A PROTECTED CLASS FOR A VIOLATION
OF THAT POLICY IS BY DEFINITION PRETEXT. THOMAS A. MC KINNEY: I THINK THAT'S
CONFUSING HERE IS THE ANALYSIS OF PRETEXT. IN THAT WHAT I -- THE COURTS IN CLINE AND
OTHERS HAVE FOCUSED ON IT BEING A PRETEXT ANALYSIS BUT IT'S REALLY A DESPERATE IMPACT
ANALYSIS IN MY OPINION. WHICH IS YOU HAVE SOMEONE WITH A PROTECTED CHARACTERISTIC THAT
IS THEN BEING SINGLED OUT ON A POLICY THAT NOTHING IS BEING DONE FOR ANYONE ELSE WORKING
THERE. EMBEZZLEMENT IS DIFFERENT. THAT'S A CRIME. JUSTICE PATTERSON:
LET'S SAY THERE WAS A FACEBOOK DON'T MAKE COMMENTS ON POLITICS POLICY. LET'S SAY
SOMETHING's ON ILLEGAL. SAME THING. THE PERSON DOES. THE PERSON'S FIRED. NO INVESTIGATION.
I UNDERSTAND YOUR POINT ON THIS IS MORE A DISPARATE IMPACT, BUT WHAT THE
APPELLATE DIVISION HAS NOW SAID IN THIS CASE IS THIS IS BY DEFINITION IN ALL CASES A PRETEXT.
THOMAS A. MC KINNEY: I DON'T BELIEVE THAT -- I DISAGREE WITH YOUR HONOR.
AND I DO SO RESPECTFULLY IN SAYING THAT IF YOU'RE LOOKING AT YOUR FACEBOOK POST ANALYSIS,
IF I LEARNED THAT THIS PERSON IS A REPUBLICAN AND BECAUSE OF THAT I WENT AND LOOKED AT
THEIR FACEBOOK POSTING TO SEE WHAT THEY HAD POSTED AND I DIDN'T DO IT FOR ANYONE ELSE
WHO'S A DEMOCRAT. THAT IS A PRETEXT. BUT IF YOU LEARN SOMETHING THAT'S BEING SAID IN
THAT JUST THAT YOU LEARN OF HATEFUL COMMENTS BEING MADE AND THERE'S NOT A REASON TO LOOK
INTO THAT PERSON OR SUSPECT THAT PERSON IN ANY WAY THAT'S NOT BASED ON A PROTECTED
CHARACTERISTIC, THEN IT'S DIFFERENT. JUSTICE PATTERSON: RESPECTFULLY, I
UNDERSTAND HOW YOU'RE TRYING TO LIMIT THIS IN THAT REGARD, BUT THAT'S NOT HOW IT'S LIMITED.
AND THE LANGUAGE CHANGES, IN MY VIEW, CHANGES AND SUBSTANTIALLY REDUCES FOR PLAINTIFFS
AND INCREASES FOR DEFENDANTS THE MCDONALD DOUGLAS BURDEN SHIFTING OBLIGATION THAT THE
DEFENDANT HAS. IT MAKES -- IT REALLY CREATES PRETEXT IN MANY, MANY CASES WHERE IT WASN'T
BEFORE. THOMAS A. MC KINNEY: I DISAGREE. JUSTICE PATTERSON:
I UNDERSTAND. THOMAS A. MC KINNEY: I THINK IN PRETEXT CASES YOU'RE ALWAYS
GOING TO LOOK AT WHAT HAS HAPPENED, ARE THERE INCONSISTENCIES. ARE THINGS BEING APPLIED
EQUALLY. THAT IS THE STANDARD FOR PRETEXT. THE SAME POLICY BEING ENFORCED AGAINST THE
SAME PERSON ACROSS THE BOARD. THAT IS PRETEXT ANALYSIS. IF SOMEONE'S BEING SINGLED OUT
BUT THERE WAS A MAN WHO DID SOMETHING WRONG AND THEY DIDN'T LOOK AT HIM --
JUSTICE PATTERSON: THAT'S MORE TRADITIONAL. OBVIOUSLY IN THIS CASE THE SCHOOL SAYS, A
DIFFERENT SCHOOL IN THE ARCHDIOCESE, A MAN VERY SIMILARLY SITUATED AND WAS FIRED. BUT
THAT'S NOT WHAT THE APPELLATE DIVISION'S SAYING HERE. THOMAS A. MC KINNEY:
I INTERPRET IT DIFFERENTLY. I SAY THE APPELLATE DIVISION IS LOOKING AT THIS AND SAYING
YOU DETERMINED THAT SOMEONE VIOLATED A POLICY BECAUSE OF A PROTECTED CHARACTERISTIC AND
IT SHOULDN'T BE DONE THAT WAY. WHEN YOU HAVE A POLICY IT NEEDS TO BE APPLIED UNIFORMLY
ACROSS THE BOARD TO ALL PEOPLE. CHIEF JUSTICE RABNER: SUPPOSE THERE'S
NOTHING IN THE RECORD THAT COUNTERS THE NOTION THAT A RELIGIOUS SCHOOL HAS APPLIED THE
POLICY. WHENEVER THEY LEARNED THAT A PERSON WAS PREGNANT OR HAD BEEN IMPREGNATED AND
WAS SINGLE. DOES THAT SUFFICIENTLY ADDRESS THE ISSUE OF PRETEXT? THOMAS A. MC
KINNEY: IF YOU CAN SHOW THAT THEY DID IT IN ONE CASE AND NOT IN ANOTHER? CHIEF
JUSTICE RABNER: NO. NOTHING IN THE RECORD SUGGESTS ANYTHING OF THAT SORT. THAT THE
RECORD ONLY HAS CONSISTENT TREATMENT, CONSISTENT TERMINATIONS IN THOSE CIRCUMSTANCES.
THOMAS A. MC KINNEY: THEN THEY WOULD NOT BE ABLE TO SHOW PRETEXT IN THAT
SCENARIO, BUT THAT'S NOT WHAT YOU HAVE HERE. YOU HAVE A POLICY THAT IS ONLY BEING ENFORCE
D AGAINST SOMEONE WHO'S NOT MARRIED AND PREGNANT. JUDGE HAAS: DO WE KNOW
THAT? THOMAS A. MC KINNEY: YES. JUSTICE SOLOMON: THE ONLY
EVIDENCE -- FIRST OF ALL, IS THERE ANY EVIDENCE THAT ANYBODY WAS FIRED BECAUSE THEY WERE
PREGNANT, BAE SIDES YOUR CLIENT? THOMAS A. MC KINNEY: HERE, MY CLIENT.
JUSTICE SOLOMON: BESIDES YOUR CLIENT. THOMAS A. MC KINNEY:
NO. JUSTICE SOLOMON: ANY EVIDENCE ANYBODY WAS FIRED BECAUSE THEY WERE SINGLE.
KEEP IN MIND I UNDERSTAND THERE WERE ONLY WOMEN TEACHING AT THE SCHOOL. M K MCKINNEY
THERE WAS NOBODY ELSE FIRED AT ALL. JUSTICE SOLOMON: BUT THERE WAS -- IF
THE SAME ARCHDIOCESE WITH THE SAME RULES AND THE SAME REQUIREMENTS IN THE ONLY OTHER INSTANCE
THAT CAN BE IDENTIFIED FIRED A MALE TEACHER FOR THE SAME REASONS. THOMAS A. MC
KINNEY: IN THAT SITUATION, YOU HAVE -- THIS WAS INCLUDED IN A CERTIFICATION AFTER THIS
MATTER WENT TO THE APPELLATE DIVISION. AND I BELIEVE IT WAS FROM 2002.
JUSTICE SOLOMON: NOBODY'S DISPUTING. THOMAS A. MC KINNEY: DIFFERENT SCHOOL,
DIFFERENT PRINCIPAL, DIFFERENT POLICIES, DIFFERENT EVERYTHING. JUSTICE
SOLOMON: NO. NOT DIFFERENT POLICIES. SAME ARCHDIOCESE. SAME RULES.
THOMAS A. MC KINNEY: NONE OF THIS WAS FLUSHED OUT. JUSTICE SOLOMON: IS THERE
ANY OTHER EVIDENCE OTHER THAN THAT ONE PIECE OF EVIDENCE, IS THERE ANY OTHER EVIDENCE
THAT ANY OTHER -- THAT ANY OTHER PERSON LIKE YOUR CLIENT WAS FIRED? THOMAS A. MC
KINNEY: NO. CHIEF JUSTICE RABNER: SO WHAT MUST -- YOU STARTED TO ANSWER
THIS EARLIER. WHAT MUST A RELIGIOUS INSTITUTION DO? YOU SAID GETTING PEOPLE TO SIGN
THE CODE OF ETHICS ANNUALLY. IS THAT ENOUGH? THOMAS A. MC KINNEY: I THINK
THAT'S A SOLUTION. YES. CHIEF JUSTICE RABNER: THAT COVERS IT?
THOMAS A. MC KINNEY: I THINK IT WOULD. CHIEF JUSTICE RABNER: WOULD IT INVADE
THE DOCTRINE OF CHURCH AUTONOMY TO DIRECT RELIGIOUS INSTITUTIONS THAT THEY WERE
OBLIGATED TO FOLLOW THAT POLICY? THOMAS A. MC KINNEY: NO, I DO NOT BELIEVE
SO. I THINK WITH CHURCH AUTONOMY YOU CAN -- IF YOU HAVE A POLICY THAT NEEDS TO BE ENFORCE
D WITHOUT FOCUSING ON SOMEONE BASED ON A PROTECTED CHARACTERISTIC AND IN ORDER TO DO THAT
THERE'S DIFFERENT WAYS INSTITUTIONS CAN CREATE TO MAKE SURE THEY DO IT EVENLY ACROSS T
HE BOARD FOR ALL. VARIOUS THINGS THAT THEY COULD DO HERE. THAT'S ONE OF THEM. IF THEY CHOOSE
TO QUESTION PEOPLE ABOUT IT, THEY CAN DO THAT. HOWEVER THEY WANT TO DO IT EVENLY AND
EFFECTIVELY, THEY CAN. THAT'S NOT REALLY FOR ME TO TELL THEM WHAT TO DO, BUT THAT IS
A SOLUTION TO HAVE PEOPLE CERTIFY AND SAY I HAVEN'T VIOLATED ANYTHING, I HAVEN'T DONE
ANYTHING. ANOTHER WAY THAT WAS SUGGESTED IS YOU HAVE PEOPLE FILL OUT
EMERGENCY CONTACTS. YOU KNOW WHERE PEOPLE LIVE. IF FOR SOME REASON THERE IS AN ISSUE
THERE, THAT'S SOMETHING YOU COULD LOOK INTO. WHO'S THIS PERSON YOU LIVE WITH. WHO'S
THIS EMERGENCY CONTACT. SHOULD UB LIVING WITH THAT PERSON. IF YOU'RE GOING TO BE ENFORCING
THIS CODE OF ETHICS, THERE ARE MANY THINGS YOU CAN LOOK AT TO SAY -- JUSTICE
SOLOMON: THIS IS NOT A CODE OF ETHICS. THIS IS A RELIGIOUS REQUIREMENT OF A CATHOLIC
INSTITUTION. THIS IS -- THESE AREN'T RELIGIOUS PRE-ACCEPTS. EVEN I AS A JEWISH MAN KNOW
THAT THE CATHOLIC CHURCH FROWNS UPON PREMARITAL SEX. NO MATTER WHETHER I AGREE WITH IT
OR NOT. I UNDERSTAND THAT. THIS TEACHER DID THAT. THIS IS NOT A CODE OF ETHICS LIKE
I SIGN A CODE OF ETHICS IN MY POSITION. THIS IS A RELIGIOUS PRECEPT. TOTALLY DIFFERENT
WORLD. YOU KEEP SAYING CODE OF ETHICS. THERE'S NO APPLICATION HERE. THOMAS A.
MC KINNEY: THE CODE OF CONDUCT IS WHAT I'M REFERRING TO. THEY LIST VARIOUS THINGS THAT
ARE VIOLATIONS OF THIS CODE. CHILD ABUSE, PRO MISS CUTIE. TO PUT EMPLOYEES ON NOTICE
OF WHAT THEY CAN OR CANNOT DO AND IF THEY DO THEY'LL BE VIOLATING THAT CODE THAT THEY
SIGN OFF ON. PREMARITAL SEX IS NOT LISTED -- JUSTICE PATTERSON: YOUR CLIENT
SAID THEY KNEW THAT THAT WAS ON THE LIST OF DO NOT DO. THOMAS A. MC KINNEY:
THERE ARE MANY SINS THAT EXIST THAT SHE IS AWARE OF. WE DO NOT SAY THAT SHE SHOULD BE
TERMINATED FOR. JUSTICE PATTERSON: WE HEARD FROM ONE OF YOUR COLLEAGUES
THERE ARE FIVE VOLUMES IN ONE COMMUNITY. DOES EVERYTHING HAVE TO BE LISTED.
THOMAS A. MC KINNEY: NO. BUT TYPICALLY IN AN EMPLOYMENT CONTEXT YOU HAVE INCLUDING BUT
NOT LIMITED TO SO YOU KNOW THERE ARE THINGS OUTSIDE OF THIS. WE DON'T HAVE THAT HERE.
FOCUSING ON -- JUSTICE PATTERSON: LET ME STOP YOU. IN THE EXAMPLE GIVEN
BY THE AMICUS COUNSEL, IF IT SAID INCLUDING BUT NOT LIMITED TO ABUSING CHILDREN, WOULD
ALL FIVE VOLUMES BE INCORPORATED INTO THAT? THOMAS A. MC KINNEY: THERE
CAN CERTAINLY BE AN ARGUMENT FOR THAT, YES. JUSTICE PATTERSON: THERE'S A
DIFFERENT BETWEEN ARGUMENT MADE FOR THAT. ABLY CONTEST VERSUS WHAT LINES ARE BEING DRAWN
HERE AND WHAT THE COURT IS BEING ASKED TO DO IN TERMS OF DRAWING LINES. THOMAS
A. MC KINNEY: I THINK THE LINE IS DRAWN IN THAT HAVING A POLICY BEING IMPLEMENTED FAIRLY
EFFECTIVELY AND NON-DISCRIMINATORILY. THAT'S -- PAT THEY LISTED COHABITATION AND YOU'RE
SAYING IF COHABITATION IS THERE BUT PREMARITAL SEX IS NOT, THEN THERE'S NO NOTICE OF
PREMARITAL SEX IS ON THAT LIST. THOMAS A. MC KINNEY: I'M USING ILLICIT
COHABITATION IN THAT IF I GIVE YOU AN EMERGENCY CONTACT DETAIL DID SOMEONE CONTACT OR FOLLOW
UP WITH YOU WHO'S THIS PERSON, ARE YOU IN A RELATIONSHIP WITH HIM. BECAUSE IT'S NOT
BEING TIPPED OFF BY PREGNANCY. SO WE LEARNED DURING THE DEPOSITION THAT THAT WASN'T DONE.
THAT'S NOT DONE. THE ONLY THING THAT WAS DONE TO ENFORCE THIS POLICY WAS LEARNING IT WAS
PREGNANT AND SINGLE. CHIEF JUSTICE RABNER: AREN'T YOU IN FACT SUGGESTING
YOU NEED TO DO MORE THAN SIMPLY HAVING THE CODE OF ETHICS, THE CODE OF CONDUCT SIGNED
A YEAR LATER? THOMAS A. MC KINNEY: I THINK YOU NEED TO IN ANY POLICY YOU'RE
GOING TO ENFORCE ESPECIALLY IN THE EMPLOYMENT CONTEXT, I THINK YOU NEED TO TAKE WHATEVER
ACTION IS REQUIRED TO MAKE SURE IT'S DONE UNIFORMLY. CHIEF JUSTICE RABNER:
BUT THE MORE THAT YOU INSIST OR SUCK NEEDS TO BE DONE, THE GREATER THE ISSUE UNDER THE
DOCTRINE OF CHURCH AUTONOMY, NO? THOMAS A. MC KINNEY: I DON'T THINK SO.
I DON'T THINK THE COURT NEEDS TO TELL THE INSTITUTION SPECIFICALLY WHAT NEEDS TO BE
DONE. SIMPLY THAT IT CANNOT BE LIMITED TO DETECTION BASED ON A PROTECTED
CHARACTERISTIC. AND THAT'S THE KEY IN OUR BRIEFING. WE'RE NOT TELLING HERE'S WHAT THE
CHURCH NEEDS TO DO. WE'RE INSTRUCTING THE CHURCH. WE'RE INSTRUCTING THAT ANY EMPLOYER
IN A PRETEXT CASE NEEDS TO ENFORCE THINGS UNIFORMLY, ACROSS THE BOARD, EQUALLY, SO THAT
A MEMBER OF A PROTECTED CHARACTERISTIC, AGE, GENDER, PREGNANCY, WHATEVER IT MIGHT NOT
IS NOT BEING SINGLED OUT. JUSTICE PATTERSON: IF WE SAY THIS WAS NOT ENOUGH
BUT WE DON'T GIVE ANY GUIDANCE OF WHAT IS ENOUGH, HAVE WE DONE A SERVICE FOR THE LEGAL
COMMUNITY OR THE PARTIES OUT THERE TRYING TO COMPLY WITH THE LAW. YOU'RE SAYING DON'T
SAY WHAT THEY SHOULD DO BUT JUST SAY THIS WASN'T ENOUGH. THOMAS A. MC KINNEY:
THE CHURCH -- WE'RE DEALING AGAIN WITH A LAY EMPLOYEE WHO IS BASED ON THE CASE LAW IS
PROTECTED BY THE LAW AGAINST DISCRIMINATION. AND THEN SHOULD BE PREEKD FROM BEING TREATED
DIFFERENTLY BECAUSE OF A PREGNANCY OR THEIR MARITAL STATUS. SO THE GUIDANCE IS THAT IF
YOU'RE GOING TO HAVE A POLICY LIKE THAT, IT NEEDS TO BE IMPLEMENTED UNIFORMLY AMONGST
ALL EMPLOYEES AND NOT SINGLING OUT A MEMBER. JUSTICE SOLOMON: UNLESS THE
RELIGIOUS TENET EXCEPTION APPLIES. THE LAD DOESN'T APPLY. THOMAS A. MC
KINNEY: THAT TENET WOULD GO TO THE MINISTERIAL EXCEPTION AS WELL. JUSTICE
SOLOMON: THAT'S WHERE WE'RE GOING TO HAVE A BIT OF A DISPUTE. YOU'RE ADVOCATING FOR
ENTANGLEMENT. THOMAS A. MC KINNEY: YES BUT WE'RE NOT ASKING FOR ANY
ENTANGLEMENT. JUSTICE SOLOMON: BUT THEY WOULD SUGGEST YOU HAVE.
THOMAS A. MC KINNEY: THEY CERTAINLY HAVE AND CONTINUE. BUT I DON'T THINK YOU NEED ONE
IN THAT ANY POLICY WITH ANY EMPLOYER THERE'S BEEN CASES ABOUT EMPLOYEES WHO HAVE DISABILITIES
AND ARE PAYING MORE FOR THEIR HEALTH INSURANCE BECAUSE OF THEIR DISABILITY AND THAT POLICY
ON ITS FACE WAS NOT DISCRIMINATORY BUT THE IMPLEMENTATION OF THAT POLICY WAS. THAT'S
WHAT YOU HAVE HERE. ON ITS FACE WE HAVE THIS RULES AND CODE THAT YOU'RE NOT SUPPOSED
TO VIOLATE, BUT THE WAY IT'S BEING ENFORCED IS DISCRIMINATORY. IT'S ONLY PICKING ON ONE
PERSON WHERE IT'S DO NOTHING ELSE TO ENFORCE AGAINST ANYONE. JUSTICE
PATTERSON: YOU'RE STANDING BY THE APPELLATE DIVISION'S VIEW THAT THIS COURT SHOULD
REQUIRE ANY RELIGIOUS INSTITUTION OF TO ENFORCE THE POLICY IF CONFRONTED BY FACTS AS WAS
THE CASE HERE, IT MUST INVESTIGATE WHETHER ANYBODY ELSE WAS IN VIOLATION.
THOMAS A. MC KINNEY: I BELIEVE, AS I'VE SAID, IT NEEDS TO BE DONE UNIFORMLY.
JUSTICE PATTERSON: I UNDERSTAND THAT. CHIEF JUSTICE RABNER: I THINK WE NEED
MORE THAN THAT. THOMAS A. MC KINNEY: OKAY. SO IN ORDER TO DO IT
UNIFORMLY, YOU DO NEED TO LOOK INTO AND MAKE SURE THAT OTHERS ARE NOT DOING OR VIOLATING
THAT POLICY. IT CANNOT JUST BE DONE SIMPLY BY SAYING THE PERSON IS PREGNANT. THAT'S
NOT ENOUGH. CHIEF JUSTICE RABNER: WHAT MUST A RELIGIOUS INSTITUTION AT A
MINIMUM DO? THOMAS A. MC KINNEY: AT A MINIMUM, AS I SAID EARLIER, I BELIEVE
THAT THEY SHOULD HAVE A CERTIFICATION DONE SAYING THAT THEY COMPLIED WITH THAT POLICY,
THEY HAVE NOT DONE THE FOLLOWING, LIST IT, SIGN YOU HAVE, AND THEN A DUTY OR REQUIREMENT
TO UPDATE THROUGHOUT THE YEAR UNTIL THEY NEXT CERTIFY. CHIEF JUSTICE RABNER:
HOW WOULD THAT ADDRESS THE ARGUMENT THAT YOU PRESENTED THAT CITE ALONE IS INSUFFICIENT
TO PROTECTION VIOLATION. YOU COULD HAVE SOMEBODY SIGN THIS FORM ON AN ANNUAL BASIS AND
STILL MAKE THE ARGUMENTS YOU ARE NOW. THOMAS A. MC KINNEY: I DON'T THINK
SO. I THINK IT WOULD BE HARD TO MAKE. I DO. JUDGE HAAS: YOU HAVE A POLICY
THAT YOU'RE GOING TO SIGN EVERY YEAR. THE CHIEF JUSTICE JUST SAID, PEOPLE SAY I ABIDE
BY IT. A FEMALE TEACHER COMES IN PREGNANT. AREN'T YOU GOING TO ARGUE THE ONLY REASON
YOU CAUGHT ME IS BECAUSE I BECAME PREGNANT? IT'S THE SAME ARGUMENT YOU'RE MAKING NOW.
THOMAS A. MC KINNEY: IT'S NOT THE SAME. IN THAT SITUATION, YOU HAVE AN
AFFIRMATIVE DUTY UNDER THAT POLICY TO UPDATE THEM IN THE EVENT YOU VIOLATED ANY OF THESE
LISTED ITEMS. IF SOMEONE WERE TO BE PREGNANT AND UN-MARRIED THEY WOULD HAVE VIOLATED
THAT POLICY BY NOT UPDATING -- JUDGE HAAS: HOW ARE YOU GOING TO CATCH THE
MEN? THOMAS A. MC KINNEY: THE SAME TYPE OF WAY. IF THEY MARK OFF THEY
HAVEN'T DONE THOSE THINGS AND YOU LATER FIND OUT SOMEHOW THEY DID -- JUSTICE
PATTERSON: BUT THERE HAS TO BE AN ADMISSION THERE. WHAT YOU'RE SAYING IS THAT THE
COMPARISON IS BETWEEN THE FACT OF WHETHER SOMEONE IS VIOLATING THE POLICY AND THE INSISTENCE
ON BEHALF OF OTHER PEOPLE THAT THEY'RE NOT, EVEN IF THEY ARE. TO ME IT'S APPLES AND ORANGES.
WHAT THE APPELLATE DIVISION IS SAYING, YOU HAVE TO INVESTIGATE VIOLATIONS OF THE POLICY.
IT HAS BEEN DOCUMENTED THAT PEOPLE ARE NOT ALWAYS ENTIRELY TRUTHFUL IN ALL RESPECTS.
AND SO WHAT YOU'RE SAYING IS IT'S ENOUGH TO GET US A SIGNATURE, PEOPLE SAYING I'M NOT
VIOLATING ANY OF THESE TENTS, WHATEVER THEY ARE, I'M NOT VIOLATING THEM. BUT THAT'S
NOT GOING TO THE HEART OF WHAT THE APPELLATE DIVISION WANTS TO HAPPEN HERE. THAT IS AN
INVESTIGATION OF WHETHER THERE WAS ACTUALLY A VIOLATION. SEE THE PROBLEM?
THOMAS A. MC KINNEY: EVEN IN THAT INVESTIGATION, SOMEONE CAN ANSWER IT HOWEVER THEY WISH
ABOUT WHAT THEY'RE DOING OR NOT DOING. JUSTICE PATTERSON: BUT WHAT IS BEING
REQUIRED HERE IS AN INVESTIGATION. NOT WHETHER PEOPLE ARE SAYING THEY'RE LIVING A PARTICULAR
KIND OF LIFE BUT WHETHER THEY ARE. THE INVESTIGATION SHOULD BE IF IT'S FOLLOWED TO
ITS CONCLUSION SHOULD BE THE KIND OF THING THAT INVESTIGATORS DO IN FAMILY LAW DISPUTES.
FIND OUT IF SOMEBODY IS STAYING OVER AT THE HOUSE. FIND OUT WHERE THEY GO. DO THEY GO
TOGETHER ON VACATION? WHAT ARE THEY DOING? THOMAS A. MC KINNEY: I THINK
YOU CAN DO THOSE THINGS. I DON'T THINK IT'S SO AB OCCURRED TO REQUIRE AN EMPLOYER WHO'S
GOING TO ENFORCE MORAL GROUNDS AGAINST SOMEONE BASED ON THEIR PREGNANCY TO ALSO THEN
ENFORCE IT IN ANOTHER WAY. JUSTICE SOLOMON: YOU'D STILL BE BACK IN FRONT
OF US. BECAUSE THE ONLY PERSON SINK GED OUT FOR DISMISSAL IS THE PREGNANT WOMAN WHO'S
NOT MARRIED BECAUSE SHE SHOWS. THOMAS A. MC KINNEY: I DON'T THINK THAT'S
TRUE. I THINK IF WE GO THROUGH THAT LIST, IF YOU ARE YOU WERE TO LOOK AT THE VARIOUS
THINGS THAT ARE THERE, GAMBLING. THAT'S LISTED ON THERE. DID THE SCHOOL DO ANYTHING
-- THEY COULD VERY EASILY OBTAIN GAMBLING RECORDS. JUSTICE SOLOMON: BUT
THE ONLY PERSON THAT WOULD BE SINGLED OUT FOR DISMISSAL FOR VIOLATING THAT ONE PRECEPT
IS THE WOMAN WHO SHOWS HER PREGNANCY. AND YOU'D BE BACK IN FRONT OF US AGAIN.
THOMAS A. MC KINNEY: I DON'T THINK SO. JUSTICE SOLOMON: WELL, I THINK SO.
CHIEF JUSTICE RABNER: LET'S TRY IT THIS WAY. YOU'VE ARGUED TO US THAT THE
ENFORCEMENT HAS TO BE UNIFORM. THOMAS A. MC KINNEY: CORRECT.
CHIEF JUSTICE RABNER: IF YOU HAD A STACK OF SIGNED CODE OF ETHICS, CODE OF CONDUCT
DOCUMENTS FOR EVERY EMPLOYEE IN THE VICINAGE, EVERY EMPLOYEE IN THE ARCHDIOCESE, WOULD YOU
STILL BE ABLE TO ARGUE THAT ENFORCEMENT WAS NOT UNIFORM? THOMAS A. MC KINNEY:
IT WOULD DEPEND WHAT IT WOULD BE BASED ON. I THINK IT WOULD BE HARD TO. IN THAT WHEN
SOMEONE IS CERTIFYING WHAT'S THE NEXT STEP THAT AN EMPLOYER WOULD HAVE TO TAKE.
CHIEF JUSTICE RABNER: THAT BEGS THE QUESTION, WHAT DOES THE EMPLOYER HAVE TO DO BEYOND
HYPOTHETICALLY ASKING PEOPLE TO SIGN THE SAME FORM YEAR AFTER YEAR. THOMAS A.
MC KINNEY: IT WOULD DEPEND ON WHAT IT IS. THAT'S WHY I WAS MENTIONING THE ILLICIT CO
HABITATION. IF YOU LEARN SOMEONE IS LIVING WITH SOMEONE ELSE, IF YOU'RE GOING TO ENFORCE
THAT POLICY, I THINK YOU WOULD NEED TO INQUIRE WHO ARE YOU LIVING WITH, HOW LONG HAVE YOU
BEEN LIVING TOGETHER, ARE YOU IN A RELATIONSHIP. THAT TYPE OF THING. CHIEF
JUSTICE RABNER: SO EXPLAIN TO US HOW TELLING A RELIGIOUS INSTITUTION THAT THEY MUST CONDUCT
THAT INQUIRY DOESN'T RUN AFOUL OF CHURCH AUTONOMY. THOMAS A. MC KINNEY:
SURE. IT DOES NOT BECAUSE YOU'RE TAKING A POLICY AND SAYING THAT IT NEEDS TO BE APPLIED
UNIFORMLY AND IN ORDER TO DO SO YOU HAVE TO LOOK INTO MORE THAN JUST SAYING DOES THIS
PERSON HAVE A PROTECTED CHARACTERISTIC THAT THEN FALLS INTO THAT CATEGORY. AND THAT IS
THE GUIDANCE THAT CAN COME FROM THIS COURT. IS THAT A PROTECTIVE CHARACTERISTIC ON ITS
OWN IS NOT ENOUGH. THAT IS NOT ENOUGH TO BASE A VIOLATION OF THE POLICY. IF THERE'S
SOMETHING MORE THAN THAT, THEN IT IS. BUT IT CANNOT BE LIMITED TO YOU'RE A WOMAN, YOU
SHOW A SIGN OF A SIN, THEREFORE YOU VIOLATED THE POLICY. JUSTICE SOLOMON:
IN THAT CASE, EVEN FOR A RELIGIOUS INSTITUTION YOU'RE SAYING THAT WOULD APPLY.
THOMAS A. MC KINNEY: YES. BECAUSE A NON-RELIGIOUS INSTITUTION WOULD NOT BE
IMPLEMENTING A PREMARITAL SEX BAN OR RESTRICTION. I CERTAINLY HAVEN'T SEEN ONE. BUT IN
THE OTHER SITUATION OF THESE LISTED ITEMS, THERE'S MORE YOU CAN CERTIFY BUT YOU CAN ALSO
LOOK INTO IT. YOU KNOW, IF SOMEONE WERE TO SEE SOMEONE GOING TO THE TRACK AND YOU'RE
NOT ALLOWED TO GAMBLING. LOGGING ON-LINE ON YOUR PHONE. IT WOULD REQUIRE AN N INQUIRY
BUT IT WOULDN'T BE BASED ON -- JUSTICE PATTERSON: AS I UNDERSTAND INQUIRY,
IT'S NOT BECAUSE YOU HAVE SUSPICIONS OF ANY ONE PERSON, THERE HAS TO BE AN INVESTIGATION
OF ALL OTHER EMPLOYEES. YOU RAISED GAMBLING. THEY CAN CHECK INTO GAMBLING. SO WHAT
YOU HAVE HAVE US DO, BECAUSE GAMBLING IS ON THE LIST, IS TO REQUIRE THESE PARTICULAR
EMPLOYERS WHO FOR WHATEVER REASON DON'T LIKE EMPLOYEES GAMBLING TO INVESTIGATE THE WHOLE
WORK FORCE. I'M SAYING THIS BECAUSE I DON'T SEE THAT IN LAD LAW ANYWHERE.
THOMAS A. MC KINNEY: I DON'T THINK IT NEEDS TO GO THAT FAR. WHAT HAPPENS
IN THAT SITUATION THAT YOUR HONOR IS BRINGING UP, IF SOMEONE SAYS I WAS FIRED BECAUSE
OF MY GENDER AND THEY SAY, WELL, WE FIRED YOU FOR GAMBLING BUT THEY ONLY DID AN INQUIRY
INTO THAT PERSON GAMBLING, YES, THAT'S PRETEXT. THEY'RE NOT BEING TREATED THE SAME AS
OTHERS. JUSTICE PATTERSON: BUT HERE THE INQUIRY, THE PERSON CAME IN AND
SAID I WON A THOUSAND DOLLARS AT THE RACETRACK TODAY, BOSS. GREAT NEWS. I'LL BUY LUNCH
FOR EVERYBODY. THEN ALL OF A SUDDEN THE BOSS KNOWS THAT THE PERSON HAS BEEN GAMBLING.
SO WHAT YOU'RE SAYING IS THAT WON'T FLY AS A REASON TO TERMINATE THE PERSON UNLESS UP
UNTIL NOW FOR ALL THOSE OTHER EMPLOYEES WHO MAY BE SECRETLY GOING TO THE TRACK, THERE'S
BEEN AN INVESTIGATION. I'M SAYING THIS BECAUSE I KNOW YOU'RE TREMENDOUSLY
EXPERIENCED LAD LAWYERS. I DON'T SEE THAT IN LAD. THOMAS A. MC KINNEY:
I AGREE WITH YOU THERE. BECAUSE THAT PERSON IS NOT BEING INVESTIGATED BASED ON A PROTECTED
CHARACTERISTIC. JUSTICE PATTERSON: WHAT IF THE PERSON SAYS I HAVE A MENTAL
ILLNESS. I HAVE A GAMBLING ADDICTION. I CAN'T STOP AND I'M BEING TREATED FOR IT. GUESS
WHAT, YOU'RE THERE. THOMAS A. MC KINNEY: THAT WOULD BE PROTECTED THOUGH,
UNDER OUR LAW. JUSTICE PATTERSON: RIGHT. THOMAS A. MC KINNEY:
JUST LIKE ALCOHOLISM. JUSTICE PATTERSON: EXACTLY. SO RIGHT AWAY YOU'RE
SAYING THAT THAT COULD HAPPEN AND THAT IT WOULD BE PRETEXT TO THROW OUT THE PERSON WHO
WON ALL THE MONEY AT THE TRACK BECAUSE OF A VIOLATION OF AN ANTI-GAMBLING PROVISION
UNLESS EVERYBODY ELSE IN THE WHOLE COMPANY HAS BEEN INVESTIGATED FROM THAT. I'M TAKING
IT A FWRA THE RELIGIOUS ASPECT. I THINK THERE MAY BE SECULAR EMPLOYERS WHO FOR ONE REASON
OR ANOTHER DON'T LIKE GAMBLING. THOMAS A. MC KINNEY: SURE. IT'S INTERESTING
BUT I DON'T THINK IT NEEDS TO GO THAT FAR OR WILL GO THAT FAR. I DON'T THINK THE APPELLATE
DIVISION IS GOING THAT FAR. JUSTICE PATTERSON: IT'S ALREADY GONE THAT FAR.
THOMAS A. MC KINNEY: I DON'T THINK SO. THE APPELLATE DIVISION IS SAYING
THE SAME THING I'VE REPEATED ALMOST TOO MANY TIMES. WHICH IS IF YOU HAVE SOMETHING, IT
HAS TO BE DONE UNIFORMLY. THAT IS THE THEME HERE TO ME. AND THE APPELLATE DIVISION'S
RULING IS THAT YOU CANNOT SINGLE SOMEONE OUT BASED ON A PROTECTIVE CHARACTERISTIC. HERE
TWO; MARITAL STATUS AND PREGNANCY. AND ENFORCE IT DIFFERENTLY AGAINST THEM THAN ANYONE
ELSE. AND THAT CANNOT BE YOUR ONLY QUEUE THAT THERE HAS BEEN A VIOLATION. THERE NEEDS
TO BE SOMETHING MORE. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO
ADD? THOMAS A. MC KINNEY: NOTHING. THANK YOU. JEREMY FEIGENBAUM:
MAY IT PLEASE THE COURT. THIS CASE CAN BE BROKEN DOWN INTO TWO DISTINCT LEGAL QUESTIONS,
AND BECAUSE THE ATTORNEY GENERAL'S POSITION ADDRESSES A NUMBER OF AREAS OF LAW IN THIS
CASE, I JUST WANT TO DO A BIT OF TABLE SETTING AND BREAK THEM DOWN. FIRST,
CAN THE LAD VALIDLY APPLY TO MS. CRISITELLO OR DOES THE MINISTERIAL STEPGS TAKE HER OUTSIDE
THE REACH OF OUR CIVIL RIGHTS LAW ENTIRELY. SECOND, HOW DOES THE LAD APPLY TO MS.
CRISITELLO. MEANING CAN SHE RELY ON TRADITIONAL LAD BURDEN SHIFTING LIEB ANY OTHER LAD
PLAINTIFF. ON THE FIRST QUESTION, MS. CRISITELLO IS A LAY ART TEACHER AND
THERE IS NO EVIDENCE ON THIS RECORD THAT SHE PERFORMS ANY RELIGIOUS DUTIES, EVEN THOUGH
AS ACKNOWLEDGED THIS MORNING THIS IS THE SCHOOL'S AFFIRMATIVE DEFENSE. INSTEAD,
THE SCHOOL IN AND ITS AMICI EFFECTIVELY ARGUE THAT ANY RELIGIOUS INSTITUTION CAN WHOLLY
INSULATE ITSELF FROM ANTI-DISCRIMINATION LAW BY WRITING INTO ITS HANDBOOK THAT ALL STAFF
MUST MODEL RELIGIOUS VALUES IN THEIR WORK. BUT THAT HAS NEVER BEEN THE LAW AND I'M NOT
AWARE OF A SINGLE CASE THAT SAYS THAT ALL TEACHERS AT RELIGIOUS INSTITUTIONS ARE
DEFINITIONALLY MINISTERS. SECOND, ASSUMING MS. CRISITELLO IS NOT A MINISTER,
SHE CAN MAKE HER CLAIM LIKE ANY OTHER LAD PLAINTIFF THROUGH BURDEN SHIFTING. RELIGIOUS
EMPLOYERS CERTAINLY HAVE THE RIGHT TO ARGUE THAT AN EMPLOYMENT ACTION WAS DRIVEN BY A
NEUTRAL RELIGIOUS REASON. BUT A PLAINTIFF FACING SUCH A DEFENSE CAN STILL SHOW THAT THE
PROTECTED CHARACTERISTIC WAS A "BUT FOR" CAUSE OF THAT EMPLOYMENT ACTION. SO
MY PLAN THIS MORNING IS TO BRIEFLY ADDRESS QUESTIONS ON THE MINISTERIAL EXCEPTION, THEN
TURN TO BURDEN SHIFTING, TALK A BIT GENERALLY BY BURDEN SHIFTING STILL APPLIES, AND THEN
ATTACK SOME OF THE QUESTIONS DIRECTLY ABOUT HOW NORMAL LAD BURDEN SHIFTING WORKS BECAUSE
I THINK SOME OF THE DISCUSSION THIS MORNING HAS TOUCHED ON HOW IT WOULD WORK IN THE SECULAR
CONTEXT AS WELL. TO START WITH THE MINISTERIAL EXCEPTION, I AGREE WITH MR.
VERNIERO THAT WE SHOULD HAVE A NARROW RULING IN THIS CASE BUT I DON'T THINK THE SCHOOL
AND ITS AMICI HAVE OFFERED A NARROW RULING. THEY HAVE OFFERED A RULING THAT ANY TEACHER
AT ANY RELIGIOUS INSTITUTION WOULD IF THEY'RE COVERED BY HANDBOOK LIKE THIS ONE BE TAKEN
INTO THE MINISTERIAL EXCEPTION AND TAKEN OUT OF CIVIL RIGHTS LAW. IT IS NOT
JUST FOR CASES ABOUT WHERE THERE'S AN ARGUMENT ABOUT A TENET OF RELIGION WAS VIOLATED.
THIS IS A WELL-KNOWN TENET IN THIS CASE BUT THAT'S THE SECOND ARGUMENT. THAT HAS NOTHING
TO DO WITH WHETHER MS. CRISITELLO IS A MINISTER. INSTEAD, AS MR. RASSBACH NOTED, IF MS.
CRISITELLO IS A MINISTER, THEN EVEN A SECULAR REASON FOR FIRING HER WOULD BE ENTIRELY
PERMISSIBLE. RACE DISCRIMINATION, AGE DISCRIMINATION. I'M NOT ACCUSING THE SCHOOL
OF ANY OF THAT HERE BUT THAT'S HOW THE MINISTERIAL EXCEPTION WORKS. YOU WOULD NOT HAVE
AN LAD OR A TITLE SEVEN CLAIM. AND SO THAT WOULD RUN TO THE MATH TEACHER, THE U.S. HISTORY
TEACHER AT A JEWISH DAY SCHOOL. ANY SECULAR SUBJECT SO LONG AS THE BROADER ARCHDIOCESE
OR FAITH TRADITION OF ANY RECOGNITION HAS A RULE THAT ALL STAFF ARE SUPPOSED TO MODEL
RELIGIOUS CONDUCT. THAT IS A HOLDING I HAVE NOT SEEN IN ANY FEDERAL CASE. FRANKLY IT
GOES TO SAY IF YOU HAVE A TEACHER THE A RELIGIOUS INSTITUTION YOU HAVE A MINISTER, I THINK
OUR JUSTICE ROET A LONGER OPINION THAN WAS NECESSARY GOING INTO DETAIL WHY EACH OF THE
TEACHERS WERE IN FACT MINISTERS. MR. RASSBACH EARLIER THIS MORNING BROUGHT UP THE ORAL
ARGUMENT IN OUR LADY. I ENCOURAGING THIS COURT TO LOOK AT THE TRANSCRIPT. THERE ARE QUESTIONS
SPECIFICALLY SAYING WELL WHAT IF YOU HAVE A MATH TEACHER AT A JEWISH DAY SCHOOL WHO'S
TOLD TO MODEL THE FAITH. THE ANSWER THAT COUNSEL GAVE WAS PROBABLY NOT BUT I'D NEED TO
SEE HOW THAT APPLIES IN THE CASE. WELL, WE KNOW HOW IT APPLIES IN THIS CASE
ON THIS RECORD. THERE'S NO EVIDENCE IN THIS RECORD OF ANY RELIGIOUS DUTIES BEING
PERFORMED BY MS. CRISITELLO. AGAIN, THIS IS THE SCHOOL's AFFIRMATIVE DEFENSE. WE HAVE
A SUMMARY JUDGMENT RECORD HERE. AND I'LL JUST POINT TO FIVE FACTS -- I'LL SAY FACTS.
IT'S FACTS OR LACK THEREOF THAT WE HAVE IN THIS PARTICULAR RECORD. FIRST,
MS. CRISITELLO IS AN ELEMENTARY ART TEACHER AND WAS AN AIDE TO TODDLERS. SECOND, THERE IS
NO RECORD EVIDENCE THAT MS. CRISITELLO TAUGHT RELIGION OR DOCTRINE TO HER STUDENTS. THIRD,
THERE IS NO RECORD EVIDENCE THAT SHE LATTER JOINED HER STUDENTS IN PRAYERS. FOURTH,
THERE IS NO EVIDENCE THAT MS. CRISITELLO PREPARED HER STUDENTS FOR PARTICIPATION IN RELIGIOUS
ACTIVITIES. AND, FIFTH, ANY OF THE OTHER INDICIA THAT AREN'T SPECIFICALLY ABOUT HER
PERFORMANCE, LIKE HER FORMAL RELIGIOUS TRAINING SHE DOESN'T HAVE ANY, TITLE, SHE DOESN'T
HAVE A RELIGIOUS TITLE AND SHE'S NEVER HELD HERSELF OUT AS A MINISTER. THERE
IS NO NARROW HOLDING THAT SAYS THAT MS. CRISITELLO IS A MINISTER. ALL WE HAVE IS A CASE
IN WHICH THERE IS ZERO RECORD EVIDENCE THAT MS. CRISITELLO PERFORMS SORT OF MINISTERIAL
DUTIES THAT CASES LIKE GAUD HAVE LOOKED FOR AND STILL JUST A GENERAL HANDBOOK DICTATED
TO ALL STAFF MEMBERS AND IF YOU LOOK AT PAGE 145 A, THAT REALLY IS ALL EMPLOYEES OF THE
ARCHDIOCESE ARE SUPPOSED TO BEAR CHRISTIAN WITNESS AND MODEL THE FAITH. IT SAYS
SOMETHING ABOUT WHETHER THAT MEANS ALL EMPLOYEES ARE GOING TO BECOME MINISTERS AS A RESULT.
SO I THINK ON THIS RECORD THE NARROW HOLDING IS THAT WE DO NOT HAVE A MINISTER
IN MS. CRISITELLO SO WE NEED TO MOVE ON TO THE QUESTION OF THE LAD AND HOW IT APPLIES.
SO THAT BREAKS DOWN I THINK INTO TWO RESPECTS. ONE, DOES NORMAL LAD BURDEN
SHIFTING APPLY WHEN THE DEFENDANT HAS ASSERTED A RELIGIOUSLY MOTIVATED DEFENSE. AND THEN
SECOND HOW DOES THAT CASH OUT ON THIS PARTICULAR CASE. I WANT TO SPEND A MINUTE OR TWO
TALKING ABOUT THE GENERAL PRINCIPLES. I KNOW MOST OF THE QUESTIONS HAVE BEEN ABOUT MS.
CRISITELLO'S ITSELF. A RECURRING INTEREST IN MAKING SURE THE LAD IS PROPERLY INTERPRETED.
WE BELIEVE THAT NORMAL BURDEN SHIFTING DOES STILL APPLY EVEN WHEN THE EMPLOYER CITES
A RELIGIOUS DEFENSE. WE THINK THAT'S CLEAR FROM THE TEXT AND THE PURPOSE OF THE LAD.
WE THINK THAT'S CLEAR FROM FEDERAL PRECEDENT INTERPRETING THE ADA AND THE AGE
DISCRIMINATION STATUTE. I WOULD POINT THIS COURT TO H ER X WE CITED IN OUR BRIEF. AND
HESHGS IS A DISTRICT COURT OPINION THAT NEVERTHELESS CALLED FOR BURDEN SHIFTINGING.
THE SAME IS TRUE FOR G E A R Y ALSO CITED IN OUR BRIEF WHICH TALKS ABOUT WHY WE DO BURDEN
SHIFTING IN THE CONTEXT OF THE. SO JUSTICE SOLOMON, NOT TO CALL A PARTICULAR
QUESTION OUT, ASKED EARLIER -- JUSTICE SOLOMON: I HAVE BROAD SHOULDERS.
JEREMY FEIGENBAUM: I THINK IT'S A GOOD QUESTION. WHAT DO YOU DO WHEN YOU HAVE
LET'S CALL IT SOME TRADITIONAL EVIDENCE TO SHOW PRETEXT. THE EXAMPLE I THOUGHT OF COMES
FROM THE MANY BOOKS OF JEWISH LAW THAT YOU MIGHT SEE AT A JEWISH DAY SCHOOL. WHAT IF
YOU HAVE A REQUIREMENT THAT EMPLOYEES KEEP KOSHER AND A BLACK TEACHER AT A JEWISH DAY
SCHOOL, A LAY TEACHER, SAYS SHE WAS FIRED FOR NOT KEEPING KOSHER OR THE SCHOOL SAYS AND
SHE PRESENTS EVIDENCE THAT A WHITE TEACHER ALSO DID NOT KEEP KOSHER AND THE SCHOOL KNOWS
THAT. THAT IS OF COURSE A DIFFERENT SET OF FACTS THAN WE HAVE HERE. BUT THE POINT THERE
IS EVERYONE KNOWS FROM THAT EXAMPLE, THE QUESTIONS THIS MORNING HAVE SHOWN, THAT THAT
IS A PRETEXT CASE. THERE'S OTHER KINDS OF CLASSIC EVIDENCE THAT I THINK A PLAINTIFF COULD
ABSOLUTELY STILL USE TO SHOW THAT THE RELIGIOUSLY MOTIVATED REASON THAT WAS GIVEN IS A
CITED REASON BUT IS NOT THE TRUE REASON FOR THE FIRING. JUSTICE PATTERSON:
SHE HASN'T COME UP WITH THAT OTHER PERSON WHO WHO'S A WHITE TEACHER WHO IS NOT KOSHER
WHO IS NOT FIRED. IS THERE A DUTY ON THE PART OF THAT RELIGIOUS INSTITUTION TO INVESTIGATE
ALL THE DIETARY PRACTICES OF ALL THE EMPLOYEES? JEREMY FEIGENBAUM: NO.
THAT'S NOT HOW WE THINK ABOUT IT AND NOT HOW WE TALK ABOUT THIS CASE. THE COMMON GROUND
I THINK BETWEEN THAT QUESTION AND THE POINTS I'M MAKING TODAY IS YOU HAVE NORMAL LAD BURDEN
SHIFTING. YOU COULD USE -- I DON'T WANT TO SAY IT'S JUST COMPARATIVE EVIDENCE.
JUSTICE PATTERSON: YOU COULD HAVE AN INDIVIDUAL COME FORWARD AND IN THIS ZAGS IF THE OTHER
SCHOOLS, MALE EMPLOYEE WERE BROUGHT FORWARD WHO WAS NOT FIRED, AND WE UNDERSTAND THAT
HE WAS FIRED, BUT THAT WOULD BE EVIDENCE THAT WOULD PUT SOME MEAT ON THE BONES OF THE
CLAIM. BUT WHAT I'M ASKING HERE BECAUSE I THINK IT'S VERY IMPORTANT IS, IS THE APPELLATE
DIVISION CORRECT THAT THERE IS A PRETEXT HERE OR A PRIMA FACIE CLAIM OF PRETEXT BECAUSE
PLAINTIFF ADDUCED EVIDENCE THAT NO EFFORT WAS MADE TO DETERMINE WHETHER EMPLOYEES OTHER
THAN A PREGNANT LAY TEACHER VIOLATED ANY OF THE PRESCRIPTION IN'S THE HANDBOOK.
JEREMY FEIGENBAUM: TWO PARTS. THE FIRST PART, I JUST WANT TO MAKE CLEAR, THAT REQUIRES
REJECTING A LARGE ARGUMENT MADE ON THE OTHER SIDE AND WE THINK THAT'S IMPORTANT FOR FUTURE
CASES UNDER THE LAD. JUSTICE PATTERSON: I'M. JEREMY
FEIGENBAUM: I DON'T THINK WHAT THE APPELLATE DIVISION IS DOING AND THEN I'LL SAY HOW I
THINK THIS COURT COULD DO IT INSTEAD F THE APPELLATE DIVISION WAS DOING WHAT QUESTIONS
THIS MORNING SUGGESTED, THAT WOULD HAVE MEANT SUMMARY JUDGMENT TO MS. CRISITELLO. THERE'S
NO FACTUAL FIGHT TO HAVE THERE. I UNDERSTAND THERE IS LOOSE LANGUAGE IN THE APPELLATE
DIVISION OPINION THAT HAS LED TO SOME CONCLUSION THAT THEY'RE IMPOSING A LEGAL DUTY ON
THE SCHOOL. THAT THE SCHOOL OBVIOUSLY DID NOT MEET IF WE EXCEPT. IF THAT'S REALLY WHAT
THE APPELLATE DIVISION MEANT IT WOULDN'T HAVE GONE TO A JURY. JUSTICE
PATTERSON: WHAT'S THE ATTORNEY GENERAL'S POSITION AS TO WHETHER THERE IS A LEGAL DUTY
ON AN EMPLOYER IN THIS SETTING TO INVESTIGATE THE REST OF THE EMPLOYEE BODY?
JEREMY FEIGENBAUM: WE ARE NOT MAKING ANY ARGUMENT THAT THERE IS A LEGAL DUTY. THE ARGUMENT
WE'RE MAKING IS DIFFERENT. DIFFERENT ENFORCEMENT POLICIES PRODUCE DIFFERENT EVIDENCE.
I THINK THE RICHARDSON CASE, WHICH ALSO DEALT WITH THE INTERSECTION OF PREMARITAL SEX
AND PREGNANCY POLICIES AND WHAT THE CASE SAID IS BECAUSE THIS IS A DISPARATE TREATMENT
CLAIM, THE QUESTION YOU WANT TO ASK, THE BUTT FOR QUESTION IS, IF THE SCHOOL LEARNED THAT
SOMEONE HAD PREMARITAL SEX AND DIDN'T GET PREGNANT, WOULD THE SCHOOL FIRE THAT PERSON.
IF THE ANSWER IS YES -- JUSTICE SOLOMON: THIS IS IN THE CONTEXT OF A
RELIGIOUS INSTITUTION? JEREMY FEIGENBAUM: SURE. EITHER WAY.
JUSTICE SOLOMON: BUT RICHARDSON? JEREMY FEIGENBAUM: YES, YOUR HONOR. SO
IF THAT'S YOUR QUESTION AND YOU WANT TO DECIDE ARE WE SOLVING FOR PREGNANCY, YOU WOULD
ASK WHAT WOULD THEY DO IN THE HYPOTHETICAL. THE SCHOOL'S POSITION IS WE WOULD FIRE THAT
PERSON. MS. CRISITELLO'S POSITION IS THEY WOULDN'T FIRE THAT PERSON.
JUSTICE PATTERSON: I JUST WANT TO CLARIFY THIS BECAUSE I THINK IT'S IMPORTANT. YOU SAID
WE'RE NOT MAKING ANY ARGUMENT THAT THERE IS A LEGAL DUTY TO INVESTIGATE. I KNOW YOU WENT
INTO DISPARATE IMPACT ANALYSIS BUT WE'RE TALKING PRETEXT HERE. IS IT THE ATTORNEY GENERAL'S
POSITION THAT THERE IS NO LEGAL DUTY TO INVESTIGATE, WHICH IS THE ONLY PROTECTION AN
EMPLOYER HAS FROM A FINDING THAT THERE IS PRETEXT? THAT WAS POORLY PHRASED BUT I THINK
YOU KNOW WHAT MY QUESTION IS. JEREMY FEIGENBAUM: I THINK I ALSO POORLY
PHRASED SOMETHING. I'M NOT BRING NG IT IN. I WAS TRYING TO KEEP IT OUT. ONTO YOUR
QUESTION. WE ARE NOT SAYING THERE'S A STAND ALONE LEGAL DUTY. JUSTICE PATTERSON:
I'M GOING TO STOP YOU THERE. YOU'RE HERE FOR THE ATTORNEY GENERAL WHO IS CHARGED WITH
ENFORCING LAD THROUGH THE DIVISION ON CIVIL RIGHTS. ARE YOU SAYING -- IS IT THAT YOU'RE
NOT SAYING THERE IS A LEGAL DUTY OR ARE YOU SAYING THAT THERE IS NO LEGAL DUTY TO DO
THAT? BECAUSE I CAN FIND NOTHING IN LAD LAW THAT SUPPORTS THAT STATEMENT. JEREMY
FEIGENBAUM: I UNDERSTAND. WE ARE NOT ADVANCING A LEGAL DUTY OF THE KIND YOU'RE READING
IN THE APPELLATE DIVISION OPINION. DO WE THINK IF THAT IS WHAT THE APPELLATE DIVISION
MEANT THAT WOULD HAVE MEANT SUMMARY JUDGMENT FOR MS. CRISITELLO BECAUSE THERE'S NO FACTUAL
DISPUTE THEY HAVE THIS KIND OF POLICY. WE DON'T THINK THAT'S WHAT THEY MEANT. WE THINK
THIS CASE GOES TO A JURY. I WANT TO SAY WHY WE THINK IT GOES TO A JURY AND WHY THE SCHOOL
CAN MAKE ITS CASE THERE. JUSTICE PATTERSON: ONE MORE QUESTION. I KNOW I'M
NOT LETTING YOU GET TO THE NEXT PART OF YOUR -- THE APPELLATE DIVISION IS SAYING THAT
THEY -- THAT THE PLAINTIFF MEETS HER PRIMA FACIE BURDEN ON PRETEXT TO GET TO A JURY BECAUSE
SHE HAS ADDUCED EVIDENCE THAT NO EFFORT WAS MADE. SEE WHAT I MEAN? THIS IS NOW, WHETHER
IT'S DEFINITIVE EVIDENCE DERNLD BY A FACTFINDER OR PRIMA FACIE EVIDENCE, IS IT PRIMA FACIE
EVIDENCE OF PRETEXT TO SHOW A LACK OF INVESTIGATION? JEREMY
FEIGENBAUM: SO I KNOW WHAT YOU'RE GETTING AT. I WANT TO STEP BACK FOR A SECOND. WE'RE
MIXING UP TWO DOCTRINES UNDER THE LAD. THE PRIMA FACIE CASE TORE PRETEXT
IS AN CREDIBLY LOW BURDEN. ALL YOU NEED TO SHOW AS YOU KNOW IS FACTS CONSISTENT WITH
DISCRIMINATION. SO THE MCDONALD DOUGLAS PRETEXT ON A PRIMA FACIE CASE ALL SHE HAS TO
SHOW IS SHE WAS EMPLOYED, ET CETERA. SHE DEFINITELY DOESN'T NEED ANY OF WHAT YOU SAID.
THE REASON THIS GETS CONFUSING IS BECAUSE WE'RE A LITTLE BIT BLENDING MIXED MOTIVES ANALYSIS
UNDER THE LAD WITH PRETEXT ANALYSIS. JUSTICE PATTERSON: RESPECTFULLY, I'M
NOT. I THINK THERE IS A LOT OF CONFUSION IN THIS OPINION. JEREMY FEIGENBAUM:
I TAKE THE POINT. I THINK THIS COURT IS GOING TO HAVE TO WRITE AN OPINION. I'M TRYING
TO WALK THROUGH HOW IT SHOULD BE WRITTEN. I TAKE IT THAT THERE'S LANGUAGE THAT. I THINK
THIS COURT SAY THAT THERE ARE TWO DIFFERENT KINDS OF NORMAL LAD BURDEN SHIFTING. THERE IS
A PRETEXT SHOWING UNDER MCDONALD DOUGLAS AND THERE IS THE MIXED MOTIVES ANALYSIS UNDER
PRICEWATERHOUSE. WE WERE TALKING ABOUT PRETEXT AND THEN WE WERE TALKING ABOUT BUT FOR.
I'LL CALL IT MIXED METAPHORS. SO OUR POINT IS ALL NORMAL LAD BURDEN SHIFTING STILL APPLIES
TO THIS CASE. THAT CAN BE MCDONALD DOUGLAS. THAT CAN BE PRICEWATERHOUSE. I THINK THE
BEST EXPLANATION FROM A NEW JERSEY COURT ABOUT HOW TO DO THE MIXED MOTIVES ANALYSIS COMES
FROM THE APPELLATE DIVISION. IT'S MYERS VERSUS AT&T FROM THE APPELLATE DIVISION. AND
I KNOW BECAUSE THIS WAS PRIMARILY BRIEFED AS A PRETEXT CASE THAT WE HAVEN'T REALLY FOCUSED
ON THAT QUESTION BEFORE. BUT WHAT COMES UP IN THAT DISCUSSION, 380 N.J. SUPER. 443. WHAT
THE JUDGE EXPLAINS IS THAT THERE ARE SOME CASES WHAT WE'RE REALLY THINKING ABOUT IS MIXED
MOTIVES. MORE THAN ONE THING IS GOING ON. YOU DON'T HAVE TO THINK THE CATHOLIC CHURCH
IS LYING ABOUT ITS VIEWS ON RELIGIOUS FAITH OR THE REQUIREMENT OF PREMARITAL SEX BEING
A SIN. YOU HAVE TO ASK WHAT HAPPENS WHEN YOU HAVE MIXED MOTIVES. WHEN THE PLAINTIFF
CAN SHOW DIRECT EVIDENCE OR CIRCUMSTANTIAL EVIDENCE THAT THE PROTECTED CHARACTERISTIC
MATTERED, THE BURDEN SHIFTS TO THE DEFENDANT TO PROVE THAT THEY WOULD HAVE MADE THE SAME
DECISION BUT FOR THE PROTECTED CHARACTERISTIC. AND I THINK -- JUSTICE
SOLOMON: WHAT'S THE EVIDENCE HERE? JEREMY FEIGENBAUM: SO THE EVIDENCE HERE
IS THE LACK OF KNOWLEDGE ON WHAT WOULD HAPPEN IN THE FACTS THAT I JUST TALKED ABOUT.
THE KEY HYPOTHETICAL IS WHAT WOULD THE SCHOOL DO IF IT LEARNED ABOUT SOMEONE HAVING PREMARITAL
SEX, WOULD THE SCHOOL FIRE THEM OR NOT FIRE THEM. NOW, THERE IS NOT EVIDENCE ON THIS
RECORD THAT SQUARELY ANSWERS THAT QUESTION BECAUSE IT HASN'T HAPPENED, AT LEAST ON THIS
RECORD. JUSTICE SOLOMON: YOU'RE ARGUING THAT EVEN THOUGH IT'S THE SAME
ARCHDIOCESE, SAME RULES IN THE INSTITUTION, SAME RULES IN ANOTHER SCHOOL, THAT WAS NOT
PART OF THE TRIAL RECORD. JEREMY FEIGENBAUM: I'M ACTUALLY NOT MAKING A
POINT ABOUT THAT. I THINK IN THAT CASE THAT WAS ALSO BECAUSE THE MALE TEACHER's GIRLFRIEND
GOT PREGNANT. THAT STILL INVOLVES PREGNANCY. JUSTICE SOLOMON: SHE'S NOT
A TEACHER IN THIS SCHOOL. JEREMY FEIGENBAUM: LET ME SAY ONE THING ABOUT
RICHARDSON -- JUSTICE SOLOMON: THEY DID FIRE THE MALE TEACHER.
JEREMY FEIGENBAUM: THEY DID. I'M NOT FIGHTING ABOUT WHETHER OR NOT IT CAN BE INCLUDED.
THE WAY WE THINK ABOUT THIS CASE -- JUSTICE SOLOMON: WHAT IS THE PRETEXT
HERE? JEREMY FEIGENBAUM: WHAT RICHARDSON SAYS IS IT MAY BE THAT THE
RELIGIOUS INSTITUTION IS FIRING YOU BECAUSE YOU VIOLATED THE DOCTRINE. IT MAY BE THAT
THE RELIGIOUS INSTITUTION IS NERVOUS THAT OTHER PEOPLE WILL FIND OUT, PARENTS, MEMBERS
OF THE PUBLIC, THAT YOU HAVE TEACHERS WHO ARE NOT FOLLOWING THE TENET. AND THOSE ARE
DIFFERENT PLAUSIBLE INFERENCES AVAILABLE ON THIS KIND OF EVIDENCE. THIS IS FROM RICHARDSON,
I THINK IT'S PAGE 1179, THE DISTRICT OF OR GONE. YOU CAN MAKE THE CASE TO THE JURY THAT
YOU WOULD FIRE THAT TEACHER BECAUSE YOU WILL FIRE ANYONE WHO VIOLATES THIS TENET.
JUSTICE SOLOMON: I COULDN'T REMEMBER THE NAME, RICHARDSON. THAT'S THE OR GONE CASE.
JEREMY FEIGENBAUM: YES. WE MENTIONED IT IN OUR BRIEFS.
JUSTICE SOLOMON: I REMEMBER NOW. I'M BAD WITH NAMES. JEREMY FEIGENBAUM:
SO THERE ARE THREE REASONS RICHARDSON GIVES. I THINK THE MOST HELPFUL EFFECTIVE ONE IS
ACTUALLY THE THIRD, WHICH IS, WE HAVE A LACK OF EVIDENCE IN THIS CASE ON WHAT WOULD HAPPEN
IN THAT HYPOTHETICAL. IN THE HERTZ CASE, THE INDIANA CASE, THE HERTZ CASE SAYS IT IS
ALWAYS TRUE IN THESE DISCRIMINATION CASES THAT WHEN SOMETHING HASN'T HAPPENED AND A SCHOOL
IS TELLING YOU HOW THEY WOULD HANDLE THAT SITUATION, THAT IS LESS PROBATIVE EVIDENCE
THAN IF IT HAD ACTUALLY HAPPENED. SO I AM NOT FAULTING A PARTICULAR ENFORCEMENT
POLICY. BUT THE WAY THE SCHOOL ENFORCES IT PRODUCES CERTAIN EVIDENCE AND DOESN'T PRODUCE
OTHER EVIDENCE INTO THE RECORD. CHIEF JUSTICE RABNER: WHAT MUST A RELIGIOUS
INSTITUTION DO UNDER YOUR CONSTRUCT TO AVOID DOING TO TRIAL? JEREMY
FEIGENBAUM: TO AVOID GOING TO TRIAL, IT WOULD WANT TO DO MORE STEPS. AGAIN, THE MUST
FRAMEWORK IS A LITTLE BIT OFF TO THE SIDE WHEN WE'RE TALKING ABOUT WHAT EVIDENCE IS
GENERATED. IT MAY BE IN THIS POLICY THEY COULD STILL LEARN BECAUSE PEOPLE ARE TALKING
IN THE TEACHER's ROOM AT LUNCH AND DISCOVER SOMEONE THAT PREMARITAL SEX.
JUSTICE PATTERSON: BUT IT HASN'T HAPPENED. IT'S IMPOSSIBLE FOR THEM TO PROVE WHAT THEY WOULD
HAVE DONE. JEREMY FEIGENBAUM: I THINK THEY CAN MAKE THE CASE TO THE JURY.
WHAT I'M SAYING IS AT SUMMARY JUDGMENT WE LACK THAT EVIDENCE ON BUT FOR CAUSATION. AND
IT'S TRUE. JUSTICE PATTERSON: BUT WHAT IS IT, BECAUSE THIS COURT IS SUPPOSED
TO PROVIDE SOME GUIDANCE HERE, AS THE CHIEF IS ASKING YOU, WHAT IS IT THAT WE SHOULD BE
TELLING PRISHS SCHOOLS THAT THEY SHOULD DO TO AVOID HAVING TO TAKE THEIR CHANCES IN FRONT
OF A JURY? JEREMY FEIGENBAUM: SO IN TERMS OF -- I MEAN, WE DON'T -- WE
GENUINELY DON'T HAVE A VIEW AS THE ATTORNEY GENERAL ON LIKE THE THINGS THEY HAVE TO DO.
THERE'S A SLIDING SCALE OF DIFFERENT POLICIES AND DIFFERENT AMOUNTS OF EVIDENCE THAT WE'LL
PRODUCE. AND THE DIFFERENT LIKELIHOOD THAT THEY WILL DISCOVER SOMEONE HAVING PREMARITAL
SEX AND CHOOSE TO TAKE ACTION OR NOT. JUSTICE PATTERSON: WHAT'S YOUR POSITION
ON THE PLAINTIFF'S VIEW THAT AN ANNUAL SIGNING STATEMENT SHOULD BE REQUIRED?
JEREMY FEIGENBAUM: I'M NOT SURE THAT THAT PARTICULAR ANNUAL SIGNING STATEMENT PRODUCES
EVIDENCE. AGAIN, MY CONCERN IS ABOUT THE EVIDENCE WE HAVE IN THE RECORD AND WHETHER IT
GOES TO A JURY. I'M NOT SURE WHAT EVIDENCE WE'RE PRODUCING THERE. I THINK THE SCHOOL
COULD MAKE AN ARGUMENT THAT WE REALLY DO SQUARE ABOUT PREMARITAL SEX WITHOUT THE PUBLIC
SHAME OF A PREGNANCY. THAT'S ANOTHER THUMB ON THE SCALE IN FAVOR OF WE WOULD FIRE THAT
PERSON IF WE LEARNED ABOUT IT. BUT IT'S A THUMB ON THE SCALE IN THAT DIRECTION. I DON'T
THINK IT'S THE END ALL BE ALL POLICY. THE SCHOOL MIGHT WIN IN FRONT OF A JURY AND MAKE
THE EXACT CASE THEY'VE MADE THIS MORNING THAT EVERYONE KNOWS THE CATHOLIC CHURCH HAS
THIS VIEW ON PREMARITAL SEX AND WE WOULD FIRE SOMEONE. JUSTICE PIERRE-LOUIS:
YOU'RE NOT ADVOCATING THE SCHOOL ENTITY HAS TO AFFIRMATIVELY SEEK OUT THIS INFORMATION
BUT IN INSTANCES AS IN THIS CASE WHERE THE SCHOOL HAPPENS UPON THE INFORMATION OR IS TOLD
THE INFORMATION OR FINDS OUT ABOUT THE INFORMATION, THEN THAT HAS TO BE -- IN
FINDING OUT, YOU KNOW, THE VIOLATION OF THE MOIL, THAT SHOULD BE APPLIED UNIFORMLY BUT
THERE HAS TO BE NO AFFIRMATIVE INVESTIGATION. FOR ALL EMPLOYEES. JEREMY
FEIGENBAUM: I THINK A BUNCH OF THAT IS WHAT I WAS SAYING. WHICH IS TO SAY, I'M JUST TALKING
ABOUT THE EVIDENCE IN THE RECORD, WHICH IS WHAT WE DO IN LAD CASES. WHEN THIS IS THE
ENFORCEMENT POLICY AND WE HAVE THE CLASS OF ONE, IN A SENSE, I MEAN, THIS IS THE ONLY
TIME THIS HAS HAPPENED IN THIS PARTICULAR SCHOOL, THAT MATERIALLY AFFECTS THE EVIDENCE
AVAILABLE AT SUMMARY JUDGMENT OF WHAT WOULD HAPPEN IN THE HYPOTHETICAL WHERE YOU JUST
TAKE OUT THE BUTT FOR CHARACTERISTIC. JUSTICE PATTERSON: SO THERE CAN BE
NO SUMMARY JUDGMENT IF IT'S A CLASS ONE? JEREMY FEIGENBAUM: SO WHEN YOU HAVE
DIRECT EVIDENCE -- SO THIS GETS TO SOME OF THE QUESTIONS FROM EARLIER THIS MORNING. THIS
DOES NOT MEAN EVERY MCDONALD DOUGLAS CASE ALWAYS COMES OUT THIS WAY. WHAT I'M TALKING ABOUT
THE MIXED MOTIVES ANALYSIS. ON THE MIXED MOTIVE ANALYSIS UNDER PRICEWATERHOUSE AND THIS IS
THE MYERS VERSUS AT&T CASE THAT I WAS TALKING ABOUT, WHETHER THERE'S DIRECT EVIDENCE OR
CIRCUMSTANTIAL BUT CLEAR EVIDENCE, THAT IS A MUCH HIGHER BURDEN THAN A PLAINTIFF WOULD HAVE
TO MEET IN A NORMAL PRETEXT BURDEN SHIFTING CASE. TO ESTABLISH BUT FOR CAUSATION AND
IF THERE IS NO PROOF ABOUT WHAT WOULD HAPPEN IN THAT CIRCUMSTANCE, THEN IT GOES TO A JURY.
JUSTICE PATTERSON: YOU'RE SAYING IT MATTERED BECAUSE THAT WAS THE METHOD
OF DETECTION? I DON'T THINK WE HAVE ANY ADMISSION ON THE PART OF THE SCHOOL THAT THE
PREGNANCY WAS THE REASON SHE WAS TERMINATED. THE OTHER TEACHERS ARE CURRENTLY PREGNANT
AND THEY WERE NOT TERMINATED. JEREMY FEIGENBAUM: SO MYERS IS HELPFUL ON
THIS. IF THEY SAID WE FIRED YOU FOR BEING PREGNANT SEPARATE FROM PREMARITAL SEX, THAT
WOULD END THE CASE. BUT THEY HAVE WRAPPED IN PREGNANCY AS THE MEANS OF LEARNING.
JUSTICE PATTERSON: THE MEANS OF LEARNING. SO IF IN FACT A -- THE STATUS OF THE PLAINTIFF
AS BEING IN A PROTECTED CLASS HAS SOMETHING TO DO WITH THE WAY THEY LEARNED IT, EVEN IF
IT ULTIMATELY HAS NOTHING TO DO WITH THE REASON THEY HAD MADE THE DECISION, THEY GO TO
A JURY. JEREMY FEIGENBAUM: IT'S HARD TO SAY HAS NOTHING TO DO. THAT'S
THE QUESTION IN FRONT OF THE JURY. THAT'S THE BUTT FOR QUESTION. THAT'S PRESUMING THE
ANSWER DID HAVE ANYTHING TO DO OR DID IT NOT. I THINK RICHARDSON SAYS THERE ARE PLAUSIBLE
INFERENCES GOING BOTH WAYS. ONE WOULD BE PREGNANCY DISCRIMINATION. ONE WOULD BE A
NEUTRAL APPLICATION OF A PREMARITAL SEX TENET. ONE WOULD BE FIRED NO MATTER WHAT. ONE
IS THE SORT OF SHAME ASSOCIATED WITH KNOWING A TEACHER VIOLATED THE TENET. SO IT IS WRAPPED
IN TOGETHER. MYERS IS ACTUALLY VERY HELPFUL HERE. IN MYERS THAT WAS A CLAIM, SECULAR.
I DON'T THINK RELIGIOUS INSTITUTIONS CAN OR SHOULD BE SFAFRD IN ANY WAY UNDER THE LAD.
JUSTICE SOLOMON: IN YOUR ANALYSIS UNDER MCDONALD DOUGLAS OR UNDER PRICE
WATERHOUSE, THEY'LL NEVER GET SUMMARY JUDGMENT? JEREMY FEIGENBAUM: IN A
VERY NARROW HAND. THE BAND BEING YOU HAVE MADE THE CASE ABOUT DIRECT OR CIRCUMSTANTIAL
EVIDENCE OF THE CHARACTERISTIC MATTERING AND A SITUATION IN WHICH THE PROTECTED
CHARACTERISTIC WAS NEVER DIVORCED FROM THE ACTION HAS NEVER HAPPENED. JUSTICE
SOLOMON: YOU LOST ME A LITTLE BIT BUT GO AHEAD. JEREMY FEIGENBAUM: THE
DOUBLE NEGATIVE WAS A PROBLEM. IT ONLY MATTERS IF WHAT ARISES IS YOU HAVE ACTUAL EVIDENCE
FROM THE PLAINTIFF IN THE PRIMA FACIE CASE FROM PRICEWATERHOUSE THAT THE PROTECTED
CHARACTERISTIC MATTERED AND THE DEFENDANT -- JUSTICE SOLOMON: YOU USE THE
WORD MATTERED. MATTERED TO WHAT? IT WAS ONLY A METHOD OF DETECTION IN THIS CASE. THERE'S
NO EVIDENCE THAT IT MATTERED. IT'S ONLY THAT IT DETECTED IT THAT WAY THAT IT MATTERED.
JEREMY FEIGENBAUM: I TAKE THE POINT. IT IS AS I UNDERSTAND IT ON THIS
RECORD THE METHOD OF DETECTION. JUSTICE SOLOMON: THE METHOD HERE.
JEREMY FEIGENBAUM: I UNDERSTOOD THAT WOULD BE THE WAY -- JUSTICE PATTERSON:
YOU'RE SAYING THERE IS NO SUMMARY JUDGMENT IF ANY RELIGIOUS SCHOOL FINDS OUT THAT AN EMPLOYEE
IS PREGNANT AND IS SINGLE IF THEY THEN GO ON FOR ANY REASON TO TERMINATE THAT PERSON BECAUSE
IT'S BECOME -- BECAUSE THE PREGNANCY IS PART OF THE METHOD OF DETECTION. JEREMY
FEIGENBAUM: WHEN THE PROTECTED CHARACTERISTIC IS THE ONLY METHOD OF DETECTION ON THE
RECORD, I DO THINK IT IS DIFFICULT TO GET SUMMARY JUDGMENT ON THE EVIDENTIARY QUESTIONS
WE'RE TALKING ABOUT. I'M NOT TRYING FIGHT THAT POINT. I THINK IT'S A VERY NARROW BAND
OF CASES WE'RE TALKING ABOUT. IT'S NOT SOMETHING I'VE SEEN COME UP IN EITHER DIRECTION
OF LAD CASES. SO MYERS DOES THIS IN THE CONTEXT OF DISABILITY. SO MYERS
IS A DISABILITY CASE. IT IS AT&T, NOT A RELIGIOUS COMPANY. I MEAN AT LEAST NOW. SO
IN MYERS YOU HAVE AN EMPLOYEE, I FORGET THE JOB TITLE, BUT YOU HAVE AN EMPLOYEE WHO SAYS
SHE IS FIRED BASED ON HER DISABILITY. AND THE COMPANY SAYS, NO, WE'RE DOING A REDUCTION
IN FORCE AND YOU HAVE LOW PERFORMANCE REVIEWS. SHE RESPONDS, NO, YOU ARE DOING A REDUCTION
IN FORCE, THAT'S TOTALLY LAWFUL, BUT THE REASON YOU THINK I HAVE LOW PERFORMANCE SCORES
IS WRAPPED INTO MY DISABILITY AND YOU DEFENDANT HAVE NOT PROVEN THAT YOU WOULD HAVE STILL
FIRED ME IN THIS REDUCTION IN FORCE BUT FOR MY DISABILITY BECAUSE THAT IN-FURD YOUR REVIEW
OF MY PERFORMANCE. THEY WENT TO A JURY. THERE WAS NO RECOGNITION THERE. SO I THINK
THIS IS NORMAL LAD FRAMEWORK. I THINK NORMAL LAD RULES APPLY BUT IF YOU GO ON TO AS THIS
CASE PRESENTS APPLY IT TO THESE SPECIFIC FACTS, I DO THINK THAT'S HOW THE NORMAL LAD RULES
WOULD CASH OUT. CHIEF JUSTICE RABNER: LET'S PUT RELIGION IN THE EXAMPLE.
I THOUGHT YOU ARGUED THE CRITICAL PROBLEM HERE WAS A LACK OF EVIDENCE THAT THE CHURCH
WOULD FIRE A SIMILARLY SITUATED OTHER. AND YOU'VE ALSO TOLD US THERE'S NO DUTY OF IN
QUIRY. SO WOULD A CERTIFICATION FROM THE CHURCH THAT SAYS ANY TIME THIS INFORMATION IS
KNOWN TO US WE FIRE AND WILL FIRE, WOULD THAT HAVE ANY EFFECT ON A SUMMARY JUDGMENT MOTION?
JEREMY FEIGENBAUM: IT'S PROBABLY NOT ENOUGH FOR SUMMARY JUDGMENT. I DO
THINK IT'S PERSUASIVE EVIDENCE IN FRONT OF A JURY. WE ARE ABSOLUTELY NOT SAYING MS.
CRISITELLO GETS SUMMARY JUDGMENT. THE REASON -- I GUESS A LITTLE BIT GOES BACK TO (CASE
CITED) AGAIN. IT'S NOT IRRELEVANT EVIDENCE. THIS IS VERY PROBATIVE EVIDENCE. IT'S JUST
NOT DISPOSITIVE EVIDENCE IN THE SAME WAY. CHIEF JUSTICE RABNER: SO HELP
US. BECAUSE THIS TAKES US TO WHAT IS A CONCERN YOU'VE HEARD ON A NUMBER OF QUESTIONS.
SO THE EXTENT THERE IS TENSION BETWEEN LAD's BURDEN SHIFTING APPROACH AND THE DOCTRINE
OF CHURCH AUTONOMY, HOW IS THAT RESOLVED? JEREMY FEIGENBAUM: IN GENERAL,
I DON'T THINK THERE IS TENSION IN THE RUN OF CASES. THIS IS THE FIRST TIME THIS QUESTION
HAS COME BEFORE THE COURT. THE THIRD CIRCUIT IN GARY ADDRESSES THIS QUESTION. IF THE
CITED RELIGIOUS REASON IS ACTUALLY THE REASON MOTIVATING THE EMPLOYMENT ACTION IS NOT
ITSELF ENTANGLEMENT. JUST SQUARELY REJECTS THE ARGUMENTS BEING PRESENTED ON THE OTHER
SIDE ABOUT ENTANGLEMENT. THERE ARE A FEW CAVEATS I WANT TO MAKE THAT I THINK CASES RECOGNIZE.
TLRS SOME QUESTIONS YOU CAN ASK THAT I DO THINK WOULD BE A PROBLEM. I DON'T THINK IT
WOULD BE APPROPRIATE AND I THINK COURTS SHOULD BAR ANY ARGUMENT FROM A PLAINTIFF THAT
THE CHURCH IS WRONG ABOUT ITS RELIGIOUS TENET. IF THEY WANT TO SAY, NO, YOU ARE MISLEADING
CATHOLIC DOCTRINE AND THAT IS NOT WHAT THE HOLLY TEXT SAYS ABOUT ANY FAITH TRADITION, THAT IS OUT. EVEN IF YOU WANT TO ARGUE YOU ARE IN A SECULAR CONTEXT. SO WE'RE NOT MAKING
THIS WASN'T LISTED. JEREMY FEIGENBAUM: THAT'S EXACTLY WHAT I WAS ABOUT
TO SAY. WE ARE NOT MAKING ANY ARGUMENT ABOUT HOW IT WASN'T LISTED. JUSTICE
PATTERSON: I KNOW YOU ARE NOT HERE ARGUING FOR THAT ARGUMENT BUT IS IT THE ATTORNEY
GENERAL'S POSITION THAT LAD DOES NOT REQUIRE EVERY PROHIBITION FOR LACK OF A BETTER WORD,
RELIGIOUS PROHIBITION BE LISTED AND THE EMPLOYEES BE PUT ON NOTICE OF THAT.
JEREMY FEIGENBAUM: WE DON'T THINK THE LAD REQUIRES THAT IN ORDER TO RAISE A NEUTRAL
RELIGIOUS DEFENSE THAT EVERY ASPECT OF THE DOCTRINE NEEDS TO BE LAID OUT.
JUSTICE PATTERSON: THE ACCIDENT PREMARITAL SEX IS NOT IN THE HANDBOOK, THAT'S NOT LAD
LAW, IS IT? I KNOW YOU'RE GREAT AT WHAT YOU DO, MR. FEIGENBAUM, BUT IS THAT PART OF LAD.
JEREMY FEIGENBAUM: NO. THAT WAS THE LAST THING I WANTED TO GET OUT. BECAUSE,
AGAIN, EVERYONE AGREES WHAT IS OR ISN'T IN THE HANDBOOK. THEY DIDN'T GRANT MS. CRISITELLO
SUMMARY JUDGMENT. SO THEY'RE TALKING ABOUT WHAT I THINK THEY THINK OF AS EVIDENCE. I
THINK THEY'RE SAYING BECAUSE IT'S NOT IN THE HANDBOOK THAT'S EVIDENCE. I THINK THAT'S
THE BEST WAY TO UNDERSTAND. JUSTICE PATTERSON: PUT IT IN THAT FRAMEWORK.
IS IT EVIDENCE THAT -- OF PRETEXT TO SAY THAT THIS PARTICULAR PROHIBITION WASN'T LISTED
IN THE HANDBOOK? IS THAT LEGITIMATE LAD EVIDENCE OF PRETEXT? BECAUSE I DON'T SEE IT
IN THE SECULAR WORLD. AND I UNDERSTAND -- I DON'T SEE TONIGHT THE LAD LAW.
JEREMY FEIGENBAUM: ACTUALLY I DO THINK YOU SEE IT IN THE LAD LAW. IF YOU HAVE A BLACK
TEACHER FIRED FOR BEING LATE TO CLASS BY TEN MINUTES AND SHE SAYS THERE'S NOTHING IN THE
HANDBOOK ABOUT TARDINESS, ACTUALLY WE WOULD THINK THE LACK OF HANDBOOK EVIDENCE WOULD
WEAR ON THE EVIDENTIARY QUESTION. JUSTICE PATTERSON: WE HAVE EVIDENCE THAT
RELIGIOUS TENTS MATTER AND WE ALSO HAVE AS PART OF PLAINTIFF'S PRIMA FACIE CASE, AND IF
IT'S IRRELEVANT TO THE ULTIMATE DETERMINATION, IT SHOULDN'T BE PART OF THE PRIMA FACIE
CASE, WHEN THEY TALK ABOUT TENTS THAT THE NOTICE IS NOT PROVIDED AS TO THIS PARTICULAR
TENANT. JEREMY FEIGENBAUM: THE FIRST QUESTION, IN THIS CASE IS IT POWERFUL
EVIDENCE? NO, I'M NOT MAKING ANY ARGUMENT THAT THE CATHOLIC CHURCH DOESN'T CARE ABOUT
THIS TENANT OF RELIGION. MY POINT WAS YOU ALSO ASKED THE QUESTION COULD THE HANDBOOK
EVER BE EVIDENCE IN A RELIGIOUS CASE BECAUSE IT'S NOT EVIDENCE IN A NORMAL LAD CASE.
THAT IS WRONG. THAT I CAN'T DISAGREE WITH. JUSTICE PATTERSON: IS THERE
ANY EVIDENCE TO LAD THAT THE HANDBOOK SAID X, Y AND Z BUT DID NOT HAVE PREMARITAL SEX
AS ONE OF THE PROHIBITED ACTIVITIES LISTED? IS IT RELEVANT? JEREMY FEIGENBAUM:
I THINK IT IS NOT PROBATIVE IN THIS PARTICULAR CASE. JUSTICE PATTERSON:
I'M GOING TO ASK YOU, IS IT RELEVANT? I'M NOT TALKING ABOUT DOES IT GET THEM ACROSS THE
FINISH LINE. IF IT'S PRIMA FACIE, IT IS NOW PART OF THE LAW. SO IS IT OR IS IT NOT?
JEREMY FEIGENBAUM: I DON'T THINK ON THIS CASE IT'S RELEVANT BECAUSE THERE'S
NO SERIOUS DISPUTE THAT THIS IS A TENET OF RELIGION FOR THE CATHOLIC CHURCH.
JUSTICE PATTERSON: I UNDERSTAND YOU'RE DEFENDING HERE THE APPELLATE DIVISION'S
DECISION, BUT THE APPELLATE DIVISION'S TALKS ABOUT THAT. JEREMY FEIGENBAUM:
I'M DEFEND TG JUDGMENT. I THINK THIS COURT IS GOING TO WRITE ITS OWN OPINION. SO ACTUALLY
I DON'T FEEL LIKE WE HAVE TO AGREE WITH EVERY WORD OF THE APPELLATE DIVISION DECISION.
TO THE DEGREE I ENCOURAGE THIS COURT TO WRITE THE NARROW HOLDING ON THE MINISTERIAL EXCEPTION.
I ENCOURAGE THIS COURT TO WRITE A HOLDING THAT NORMAL LAD BURDEN SHIFTING APPLIES. THE
LACK OF EVIDENCE WE HAVE ON SUMMARY JUDGMENT WHICH OF COURSE IN ANY CASE IS THE RESULT
OF AN ENFORCEMENT POLICY BUT NOT A REQUIREMENT OF AN ENFORCEMENT POLICY. CHIEF
JUSTICE RABNER: PROCESS THAT'S A GOOD PLACE TO BREAK. ANYTHING YOU'D LIKE TO ADD?
CHIEF JUSTICE RABNER: Step out and come back ask have lunger. You're welcome to
do that as well. Prophecy Chen. PROF. RONALD K. CHEN: I was building.
CHIEF JUSTICE RABNER: I was buildening 30 minutes for lunch not arguments
by the remaining counsel. PROF. RONALD K. CHEN: Good morning, chief justice
an per may it please the court. I'm well aware of the time and that we are and of the
lengths that this argument has gone. So on behalf of the the ACLU and the ACLU of New
Jersey, perhaps I'll take advantage of a not typical situation and say that on this matter
at least, these is substantial agreement with the attorney general on the issue of the
ministerial exception and I will not repeat his arguments, there's one aspect of the
ministerial exception I did want to address briefly. The second point I wanted to
address was on the technical construction of the LAD. Mr. Verniero identified possible
disagreement with one of the amicus on that and I venture to say -- I think am Mick
cuss. JUSTICE PATTERSON: I missed the noted of what you said.
PROF. RONALD K. CHEN: I'm guessing that I'm the am Mick cuss with which Mr. Verniero
hat identified a disagreement on how the language of the LAD has been interpreted.
On the ministerial exception as Mr. Verniero noted and as Hosana Tabor made very clear,
the ministerial exception is an affirmative defense to an otherwise claim not a
jurisdictional bar because it is not a jurisdictional immunity that depends upon the
status of the employer defend, the school but as an administrative defense, it must be
pled and proved by the school and depends on the individual facts regarding the functions
of the employee as our lady of Guadeloupe is what matters at the bottom is what the employee
does, and since it is an administrative defense, the school as the defendant bears the
usual burdens of production and persuasion and the risk of nonpersuasion. It has the
burden of establishing facts and here I will respectfully disagree with Mr. Verrone
Flooring in that, I think the issue is regarding the administrative defense of the ministerial
exception involved questions of fact. Not questions of law as we have seen there is --
there is or is not record evidence of the extent to which it was made clear that Ms.
Crisitello job's function involved the religious function of the church unless one accepts
the argument that all teachers indeed possibly all employees of the school who had contact
with students had to integrate into their job functions being witness to the religious
function of the church which I'll address in a moment. It still depends upon the functions
of the individual employee, those are fact matters as to which the school has the burden
of proof and persuasion and as an administrative defense. And so perhaps
at this procedural juncture, the narrow way to resolve this case is there are disputes
of fact regarding the function that Ms. Crisitello performed and there are this case
should proceed to trial as a jury -- before a jury. But this case does -- and cases like
it does present larger problems which we wanted to address, an employment relationships
with religiously affiliated employers, the ministerial exception can potentially be the
source of some very fundamental and less after the fact misunderstandings between the
parties and the nature of the employment relationship. Certainly Ms. Crisitello had
been told explicitly at the outset that she was completely forsaking all the protections
of the LAD against any form of discrimination in the workplace may have had a significant
factor in her decision and that I think bears emphasis. JUSTICE PATTERSON:
Is it the ACLU's position that a religious employer must tell employees that we expect
-- we expect you to infuse religion into the curriculum here and your teaching that here's
your waiver, it's going to affect your ability to sue us under LAD and federal employment
law, et cetera? You're saying there should be notice to the employee of the impact of
taking a job with this particular employer. PROF. RONALD K. CHEN: I think
placing the burden on the employer who is the party of the Superior bargain power, Superior
knowledge and is drafting the operative documents, I think there are neutral
principal pals of contract law that this court and which we cite in our briefs that could
impose certainly the risk of nonpersuasion in which if that had been made clear toe
employee. JUSTICE PATTERSON: If we suppose on a religious employers a
new notice requirement on the potential impact of their decision on what might happen in
a future litigation we may find ourselves running afoul of some Supreme Court doctrine.
PROF. RONALD K. CHEN: I don't see how this would in any way prejudice
a religiously affiliated employer or limit their ability to promote their religious doctrine
consistent with the first amendment. We would only be asking them to do what any other
employer could be asked to do, which is if it is going to claim frankly the right to
be exempt from the law against discrimination -- JUSTICE SOLOMON: Is that
what we have here? Not claiming an exemption against the law of discrimination, they're
claiming the exception Ave. applying. PROF. RONALD K. CHEN: I think the
effect of the Broadly of their claiming the ministerial exception amounts to a claim
that they are exempt from the LAD in virtually all -- certainly in all circumstances involving
teachers. Whether it might also involve other employees I guess would be a question
of what they chose to put in an employee handbook but it would be easy enough for them
to say if they are claiming that all persons who have contact with students should accident
several plaintiff the Christian witness and be that example and there be fall within the
ministerial exception, that means as Mr. Feigenbaum said, that they are exempt from
all aspects of the LAD, not just exempt from taking religious affiliation but every other
classification every religion will be able to discrimination night based on photo ran
status. JUSTICE SOLOMON: I don't think they're claiming they wouldn't
be potentially liable if they fired a pregnant teacher who's married for being pregnant
or a black teacher because they were black. I don't think they're claiming that. They're
claiming in this case we're exempt because she was fired for a reason that qualifies
-- and her responsibilities relate to the ministerial exception. PROF.
RONALD K. CHEN: But as I understand the ministerial exception, if her -- if the
functions of the employee are deemed to cause that employee to fall within the exemption,
then secular courts Simply cannot apply secular laws such as the law against discrimination,
period, in total, there is no subdividing of the categories of the law against. If they
apply or not. In that case it amounts to a total immunity which Hosana Tabor suggested
actually did not suggest, it said it was not, it is not a jurisdictional immunity but
an administrative defense but a construction as broad as I believe the defendant's --
the defendant in this case is claiming would essentially make it so. CHIEF
JUSTICE RABNER: I understand that your focus is on the ministerial exception and you've
suggested to us if you prevail there this case goes to a jury, but analytically don't
we need to start and analyze whether the tenants of the religion exception to the LAD
applies, in which case -- I'm not going you to go there but I don't know that your conclusion
upfront was necessarily what you intended. If they prevail under the LAD exception,
do we get to constitutional issues? PROF. RONALD K. CHEN: Well, that presents
the opportunity perhaps to describe the difference in the way that the ACLU, I
believe we were the only one to mention this in our briefs so perhaps it falls to us to
describe simply how we parse the statute and for us this is almost a matter of grammar
and pure textural construction maybe it would be simplest if I simply read the relevant
words once, the only thing is I'm going to inject is one or two is where we would break.
CHIEF JUSTICE RABNER: Go right ahead. PROF. RONALD K. CHEN:
Break the clause, N.J.S.A. 10:5-12. It shall not be not unlawful employment practice for
a religious associational organization to utilize religious affiliation as a uniform
qualification, one, this is our reading, in the employment of Clear justice sewed religious
teachers or other employees enDavid in the religious activities of the association or
organization, or 2, in the following -- in following the tenants of its religion in
establishing and utilizing criteria for employment of an employee. I believe,
and I'll let Mr. Verniero speak for himself but I believe Saint Theresa school is reading
it this way, provided further that it shall not an not unlawful employment practice for
a religious association or organization 1, to utilize or religious affiliation as a uniform
qualification in the employment of clergy religious teachers or other employees engaged
in the religious activities of the association or organization, or 2, in following the
tenants of its religion in establishing and utilizing criteria for employment of an
employee. CHIEF JUSTICE RABNER: The rules of grammar don't answer the
question or either, correct. It seems as though there's a grammatical flaw which is giving
rise to these arguments. PROF. RONALD K. CHEN: I will admit that many
lawyers on both sides have probably poured over this language a lot in the last two
years, obviously I believe that our reading is simply as a question of grammar more correct
since it seems parallel constructions and complete sentences,. The
difference of course is under our reading, the provision for following the tenants religion,
depends upon the Superior clause it would not be unlawful practice for a religious association
or organization to utilize religious affiliation, in other words, following the tenants
of the religion would be one way to allow a religious organization to use religious
affiliation which is not relevant in this case because the school is not claiming the
exemption of using religious affiliation as the statutory exemption from the LAD.
The other clause. JUSTICE PATTERSON: I apologize, I'm not following
that. I just didn't follow what you just said. PROF. RONALD K. CHEN: Well,
if the claim were that a the co-religion exception, if a religious organization were
claiming that we have the right to prefer members of our own religion in the employment
because doing so was necessary to follow the tenants of our religion, then this exception
would ap you ply. JUSTICE PATTERSON: Would not apply to this case?
PROF. RONALD K. CHEN: Well, the exception would apply to that case but that
is not this case, this case there is no claim that Saint Theresa school is claiming the
co-religious exception so -- JUSTICE PATTERSON: I may have it. I
probably have it wrong but is your argument that we should read the statute only create
an exception to LAD if someone is using -- if an employer is using the tenants of the
religion to prefer co-religionists in their employment practices. PROF.
RONALD K. CHEN: Yes, so there are two -- JUSTICE PATTERSON: So you're
saying that no -- if a plaintiff is a Roman Catholic as this plaintiff is, by definition,
they are out of the LAD exception? PROF. RONALD K. CHEN: If Saint Theresa
school were claiming that the decision were based on religious affiliation but it could
claim this exemption as a justification since otherwise obviously be Forbidden that is
not the case here. (Simultaneous speaking.) JUSTICE PATTERSON:
You're saying that couldn't be the case because there is no religious affiliation issue
in this case. She was the same religion as the school you're saying it should be read
only to protect the school in the event that they are discriminating against members
of other religions but not against members of their own religion. PROF.
RONALD K. CHEN: The other way frankly. JUSTICE PATTERSON: Does that make
sense, the legislature would make that distinction? PROF. RONALD K.
CHEN: I think it makes perfect sense if it allows co-religionist exemption it allowing
a -- I'll use an extreme example, it allows a religious organization to prefer
co-religionists to be ministers. JUSTICE SOLOMON: But it might raise the
question of the cons constitution that of the LAD. PROF. RONALD K. CHEN: I
think that exemption would mesh quite closely with the ministerial exception as we would
interpret it. Religious entities are clearly allowed to favor co-religionists for those
who are part of the govenors San the facts of teaching of religious doctrine.
JUSTICE SOLOMON: But it goes well beyond that. All right. Listen if that's your position,
that's your position. CHIEF JUSTICE RABNER: I'm not sure what the second
clause then means, what does it add. PROF. RONALD K. CHEN: The first
clause talks about using religious affiliation in the employment of clergy, religious
teachers which would probably be would under a different set of facts apply in this case,
the second one in following the tenant's religion and establishing utilizing criteria
for employment of an employee but not necessarily for what the statute might deem to
be religious purpose, I'll give you a possible example. Some religions
have dietary aspects of their religion although one might not consider food preparation
to be a religious activity, one could under this tenants of a religion required it favor
concerned citizens in preparation of food even though not following with in the first
catty don't remember could be fall with the second category, but second, let me also address
the two clauses may in fact overlap quite a bit, there's nothing wrong with the statute
being overlapping, a statute a legislature could use abundance suspend Miletsky's approach
if it wanted to do so so that in and of itself would not be problematic. The problem
with the other construction it would create a free roverring privilege of a religious
entity to follow the tenants of a religion which would be the primary arch later to violate
any aspect of the LAD or claim an exemption not involving religion. It could involve
so a passivist religion could discriminate against veteran it is. JUSTICE
SOLOMON: That's not what we have. There's no dispute if this is a tenant of the religion.
There's no dispute about any of that. The situation you're talking about is not what
we have here. There's no dispute this is a tenant, there's no dispute it's violated.
The question is whether I guess that's -- PROF. RONALD K. CHEN: I guess
what I'm suggesting whether it very well and is certainly is a tenant of the religion,
whether the issue or not in this case is not relevant to the indication of the statutory
exemption of the LAD because that -- in our reading it only affects the ability to use
religious affiliation as our criteria in an employment decision which is not at issue
here. JUSTICE PATTERSON: Why would they use the word or, if all that
last phrase is doing is informing the co-religionist aspect of it. Why would they
use the word or, they would say, you know, as may be demonstrated by failure to follow
the tenants of the religion, it would be different language if it was only relevant to
that first construction that you say is the only construction. PROF. RONALD K.
CHEN: Well, I don't see -- I think the second -- the second clause argually expands the
of the first clause which seems limited to clergy, religious teachers or other employees
engaged in religious activities as that is intended in the statute, possibly the
legislature was thinking of activities that might not appear tube religious activity but
which the tenants of a particular religion dictate need to be done in a certain way by
a co-religionist. I gave food preparation as an example. I'm sure there are others.
CHIEF JUSTICE RABNER: I think we need to move on. Is there a way we
can ask you to condense the remainder of your argument to two or three minutes.
PROF. RONALD K. CHEN: Sure, well, I'll go back to ministerial exception. Generally
the consequences of this case could be quite -- quite significant. For to allow a religious
institution to be completely exempt from the LAD which this court has said I'm reminded
of the Ramos, Rodriguez versus Ramos furniture is not only protecting the individual
interest of the employee but the public interest in moving the discrimination, while the
ACLU is obviously very respectful of the religious freedom respects of of this aspects
of this, it cannot be a total surrender of the public interest in preventing discrimination
by providing what essentially amounts to a complete jurisdictional exemption,
protection, immunity of religiously affiliated institutions from the protections of the
LAD. If you look at Hosana Tabor and at the our lady of Guadeloupe case, the Court was
quite specific in going in a factual -- a factually driven inquiry into whether the
individual employee fell within the exemption and was, we think, intentionally avoiding
a broad based immunity for religious schools or religious institutions to be completely
immune from antidiscrimination statutes. JUSTICE PATTERSON: Well, TKPWAUD
relationship has been on that very basis by comment at any timors who don't agree with
it. So to the extent that ministerial exception applies to a class of employees it bars
the application of discrimination law and it does affect the public interest but that's
constitutional -- the constitutional jurisprudence of the U.S. Supreme Court.
PROF. RONALD K. CHEN: I still won't point to justice leader's methodology going
through the employee functions and determining whether it served one of the the three
religious capacities, governance, the sere moan y'all aspects of the church and teaching
of religious dogma he did not simply a payment with broad brush and say anyone employed by
a religious affiliated institution was covered under the ministerial exception as Mr.
Feigenbaum said, the opinion could have been quite shorter if he had done that and I think
we should respect the methodology that our lady of Guadeloupe that the court has adopted
and certainly not expand upon it in that way. CHIEF JUSTICE RABNER: Thank
you. Mr. Chen. Ms. Kraner. NATALIE J. KRANER: Thank you chief justice
Rabner and may it procedure. The seek to ensure the EV effective and enforcement of
nondiscrimination laws consistent with the right to religious employers under the first
amendment. Our brief outlines the history and unique niece of misand I'd like to briefly
address today why that exception must be carefully cabined and P why it does not apply
to Ms. Crisitello and I'm cognizant of the fact that I am the last person standing and
we are close to lunchtime so'll keep my remarks brief. The New Jersey law against
discrimination is one of the oldest and most comprehensive nondiscrimination laws in the
country and this State has a long history of seeking to protect its employees from harm.
Federal and State courts have recognized that society undoubtedly interested in enforcing
nondiscrimination laws like the LAD should be eclipsed rarely and only for a very limited
purpose under the ministerial exception and that is is to ensure that the authority to
select and control who will minister to the faithful a matter strictly is the church's
alone,. The reason that the exception must be narrowly construed and not
applied beyond tits constitutional roots and purpose is it comes at a severe cost to
the employees who lose their civil workplace protections, those protections aren't just
tied to religious adherence and affiliations and as has been mentioned today. Employees
deemed ministerial can be terminated based on an Mr. Smith, Does that with med against
based on sex, disability. Sexual orientation and other protected grounds, and as we
know at page 35 of our brief they lose more than their right to be employment discrimination
your attention, the ministerial exception deprives of them other the right to be free
of hostile work environments, the right to envogue, whistle blower statutes, the right
to bring over time and minimum wage climbs, the right to workers compensation and potentially
other contract and tort claims, the many individuals who work for religious employers
and who have had many secular roles and responsibilities rely on these protections
and I'm speaking of the janitor who is paid less because of her national origin or the
music teacher who has been subjected to racial and sexual harassment or the receptionist
who's seeking time off because she had a medical procedure, these are not just hypotheticals,
we also noted in our brief on page 32 there have been efforts nationwide to expand the
reach of this exception to secretaries, receptionists, support staff, the It facility
works and juror errorists have been the gatekeepers to such attempts.
JUSTICE PATTERSON: What is the meaning of the exception language? What does the exception
apply to? NATALIE J. KRANER: The exception applies to individuals who
-- I'm going to E repeat quoted hose San Tabor to I would who will minister to the faithful
and that's a quote from Hosana Tabor. NATALIE J. KRANER: The purpose of
the exception. A No to select and control who will minister to the faithful
that is a matter that is strictly ebbing less yays it will that is the church's alone.
JUSTICE PATTERSON: That is how you read the language of the LAD exception
the ministerial exception. NATALIE J. KRANER: Misexception. We did not
weigh into the how the LAD intersect, we really focused on the ministerial exception
but we wanted to highlight to the court is the real consequences of expanding that exception
beyond -- really really narrow constitutional purpose. As I mentioned,
you know, obviously employees subject to that exception lose many rights, there are
employers who are trying to assert the exception beyond houses of wore ship and religious
schools, there are cases being brought by hospitals, nursing homes, rehabilitation
centers even publishers and we cite those in our brief but just to focus today on religious
schools in New Jersey and what an extension of the exception would be along the lines
the defendant is proposing. There are in the State 249 Catholic schools.
And 7,455 Catholic school teachers and that data is the most recent data published in
the New Jersey Catherine conferences website this conversations pre-K through 12 it for does
not cover college and universities, nows that is less than the 600 religious affiliated
schools in New Jersey. So under the rule I think proposed by defendant today which is
all Catholic school teachers would be subject to the exception we're talking about thousands
and thousands of individuals and again there are 600 religious schools in New Jersey
and the very same reasoning, based on broad statements in a full handbook and other HR
documents about the expectations of teachers to be role models and to integrate the faith.
That alone is enough to trigger the exception, that is thousands and thousands and thousands
of New Jersey Janes who will lose their rights under Lafayette Streeted. As our brief
illustrates. JUSTICE PATTERSON: As a simple matter for us come down to
is this in or out of Guadalupe. NATALIE J. KRANER: Yes.
JUSTICE PATTERSON: And that's the issue. NATALIE J. KRANER: We've heard
a lot about Guadeloupe today I don't want to spend a lot of time I want to make a few
observations about that case, what the defendant's position here is the defendant
here is advocating for a rigid test and that is is exactly what the court in Hosana and
Guadeloupe rejected they said it's a fact specific analysis you don't look at just what
the role of the individual is or even what the religious employer believes the role is
or should be. You look at bottom at what an employee does. It is a ministerial function
test and it was recognized actually by this court which I think was press You sent.
Versus in welt to her versus Seton Hall university recognized it as a function test and
that it was dad adopted in Guadeloupe as a function test. And, you know, we've heard
-- a few times mentioned that the opinion in Guadeloupe would have been much shorter if
the full faculty handbook was enough but I wanted to highlight for the court both the
petitionerrers in those cases were employed by agreements that set out the school's mission
to development and promote a Catholic school faith community. Their HR documents and
their hand Bon Secours impose commitments regarding religious instruction modeling of
the faith on them, and the handbook explained that the teachers performance would be reviewed
on those basis. So that was the start point, these types of handbooks and these types
of policies are gonna be present in every case I think involving a religious ends
Constitution, the court did not end there, that was the beginning of the analysis, you
have to go beyond that and you have to look at what the individual actually did and what
their vital religious duties were. And all of the cases that have come
out since Guadeloupe, I know it's been three years but there have been a number of cases
have engaged in that fact specific analysises and really focused on the duties and the
record doesn't point to anything in this case, in many ways I agree with counsel that
this case should be limited to its facts, and the fact specific analysis is all they
have is this broad statement in the faculty handbook and that is not enough.
And I also AOL listened to the Guadeloupe drive into Trenton and the first came from
Robert, teachers as part of their role personnened church values, is that enough to
trigger the ministerial exception and counsel for the school responded on the basis of
person In fact alone, it's not enough. So again, mindful for the time
unless the court has any questions for me, I have no further arguments. CHIEF
JUSTICE RABNER: Mr. Verniero could you bring it home in the five minutes asked for.
PETER G. VERNIERO: Yes may it please the court and to do that I will rely on my
responses to the various amicus contained in my various briefs in respond to them so I
will not repeat that. Nor will I repeat our response to plaintiff. I will address just
the things that I thought I heard for the first time or at least something new.
First plaintiff's counsel seems to be reading the Appellate Division's holding now a
different way than I read it than I think the plain language reads it and how he argued
that it should be read when he was helping the Appellate Division itself draft the rule
that we have and Justice Patterson, I think you have articulated it as close to my
articulation or at least the one that I think is a fair reading, and this is just a little
sample of what was said below. When Mr. McKinney any was in front of the trial court
proposing this very rule of law or something very close to it, that we now have from the
Appellate Division, the trial court said, now, you know I want to make sure I get this,
this is now a direct quote from the trial court. Now the logical extension of your argument
is that they, the church, needs to play Jr. detective on every person actually not only
if they're pregnant or not but they need to ask -- ask, every single staff member, by
the way, have you had extra marital sex or premarital sex. The answer,
sure. That was the argument that was being proposed, and it was reinforced
in the briefs before the Appellate Division and the Appellate Division accepted it.
It's not let's just take a little look at the files, it's not let's look at a health form,
it's you didn't interrogate your staff on not only premarital sex but the Appellate
Division went even broader to say on on everything. On every possible tenant. It's
intrusive it's unlawful and it's unreasonable. That's the position that the plaintiff
argued, he argued it below, he argued it before the Appellate Division and he argued
it on page 19 of his brief to this court. That's my first response,.
My second response is to the attorney general, again, I have great respect for the attorney
general's office, I'm not going to repeat what I said in my brief in response to his office
but as I heard his summary judgment test and I didn't glean this from the brief and maybe
I missed it but as I heard it formulated today, the church certainly in this (case cited)
and probably not too many other cases dealing with this tenant could ever satisfy that
test. Meek, and I think the chief justice and Justice Patterson may have pointed this
out, the church would have no chance, no chance at all to avoid a trial on the merits under
the HA's formulation even though he claims it's narrow basically he's writing this tenant
of the faith out of the tenant of the faith because the whole point of summary judgment
and even handedness is that each side shall have the opportunity on summary judgment
to seek a dismissal or to win on the merits under the AH's formulation that is gone and
it's not just gone for any company or any employer, I heard that phrase a couple of
times, well, this is how every employer should be treated. We're not dealing with every
employer, we're dealing with a church, churches, we're dealing with religious institutions
who have special protections and I think the reason why this conversation has been
somewhat confusing at least to me is we're trying to fit something that doesn't really
fit. McDonald Douglas pretext, certainly the way the Appellate Division has instructed,
simply cannot coexist with the first amendment and as I said in my earlier question to
I think it was the chief justice you don't have to draw that line precisely in this case
to know here they have gone way over it and the attorney general again I thought I heard
something new, in his brief he claimed, and this was one of the few items of pretext,
he said should allow this case to go to trial on page 28, the attorney general said offered
evidence that the school took no steps to determine whether other employees violated
its policy. This morning I thought I heard him say, there's no lawful duty
to take such steps, maybe I misunderstood but that's what he said in the brief, whether
he said it whether the AG said it or not that's where we are with this Appellate Division
rule. As to my colleague professor Chen, we do not need a jury trial to
decide whether the ministerial exception applies in this case. That's a legal determination
this court can make based on the record and if for whatever reason the Court decides
the record doesn't support that conclusion, the court can make that conclusion, I would
disagree with it for the reasons that I said, but that's not a -- that's not a fact question
that's a law question. And I am over my five minutes chief justice so
I will just say, when you eliminate this rule of law that the Appellate Division has given
us there is no evidence of pretext at all in this case whether it's on consistency basis,
whether it's unplacibility the tenant is what it is, it was violated, it was acknowledged
to be violated and all the can par toes, which I believe by the way case law says it's
the plaintiff's duty to supply the they all appoint to one direction this on this record
was applied consistently. There was no unlawful discrimination here I urge the court
to dismiss the claims. CHIEF JUSTICE RABNER: Thank you, counsel and thank
you to all counsel, we have a habit of liking to hear from lawyers who are helpful to
us and that on the indirect issues will explain why it's now ten to one so thank you for
fine presentations,