[00:00:02] Speaker 00: We'll proceed to the next case to be argued. [00:00:20] Speaker 00: I think that's McMahon versus, where's the tape sheet? [00:00:30] Speaker 00: The next case to be read is McMahon versus World Vision. [00:00:43] Speaker 00: And this case is also set for 15 minutes per side. [00:00:50] Speaker 00: So we'll hear first from Appellant. [00:01:02] Speaker 03: May it please the court, Daniel Blomberg for repellent. [00:01:05] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:01:07] Speaker 00: Council, what's your own time? [00:01:09] Speaker 00: I'll try to remind you, but I can't promise it. [00:01:17] Speaker 00: You're in the midst of argument. [00:01:21] Speaker 00: So you should watch your clock. [00:01:23] Speaker 00: But of course, if any judge is inquiring about an issue to them, you should answer fully, and we'll give you extra time. [00:01:35] Speaker 03: This case concerns an important question. [00:01:38] Speaker 03: May religious ministries ask their representatives to comply with their sincere religious beliefs? [00:01:43] Speaker 03: The answer is yes, as confirmed by several overlapping fundamental rights all converge here. [00:01:49] Speaker 03: And I'll start with the right that courts most often apply in this context, which is the ministerial exception. [00:01:55] Speaker 03: The role at issue here is protected by the minister of exception because it concerns and is important to carrying out the religious mission of World Vision, especially under this circuit's broad view of who counts as a minister under the Markle case. [00:02:10] Speaker 03: is undisputed, as you can see at reply brief at page five, that the role here was responsible for publicly communicating World Vision's faith to supporters and the public, to inviting partners to join World Vision's ministries, to teaching the faith to coworkers, participating in regular religious teaching times in chapel services, regularly praying with coworkers, and spiritual growth of supporters, partners, and donors. [00:02:38] Speaker 01: Counsel, can I ask you a question right at the top of your decision tree? [00:02:41] Speaker 01: You said that there's several overlapping claims or rights that are converging. [00:02:47] Speaker 01: You've started with a ministerial exception, which is the focus certainly at my notes for what it's worth. [00:02:53] Speaker 01: That's a defense, right, to the Title VII claim and to the Washington's counterpart to Title VII, right? [00:03:00] Speaker 01: Yes, Your Honor. [00:03:00] Speaker 01: So my first question is whether we would need to go any farther than a ministerial exception. [00:03:06] Speaker 03: No, Your Honor. [00:03:07] Speaker 03: That would resolve both claims that are before this Court. [00:03:09] Speaker 01: Right. [00:03:09] Speaker 01: Okay. [00:03:10] Speaker 01: So, well, then I'll stay out of your way. [00:03:12] Speaker 01: You're going to talk about the ministerial section exception next? [00:03:14] Speaker 01: Yes, Your Honor. [00:03:15] Speaker 01: Okay. [00:03:15] Speaker 01: Then I'll listen, right? [00:03:16] Speaker 03: Right. [00:03:16] Speaker 03: So we have that list of undisputed duties that the representatives perform here, and there are four unique ones that I want to draw the Court's attention to. [00:03:24] Speaker 03: The first one is a uniquely important religious function that the District Court found. [00:03:27] Speaker 03: and that Ms. [00:03:28] Speaker 03: McMahon concedes, which is that the representatives were expected to regularly pray with supporters. [00:03:35] Speaker 03: They also were expected to provide intensive engagement with donors daily on World Vision's religious mission and message. [00:03:43] Speaker 03: They were also required to embody and express World Vision's mission and vision daily with the general public. [00:03:50] Speaker 03: And finally, they received enhanced training that was unique to this role. [00:03:54] Speaker 03: Only these types of employees, this class of employees, received this training so they could perform all of those functions, including the ones that were unique to their role. [00:04:02] Speaker 04: Council, as I understand it, the deposition of the human resources vice president was taken and Ms. [00:04:08] Speaker 04: McMahon's deposition was taken. [00:04:11] Speaker 04: Was there any testimony from the supervisor of the CSRs [00:04:18] Speaker 04: as to exactly what they do on a daily basis. [00:04:21] Speaker 04: The thing that's a little bit hard for me is we're dealing with an applicant who never even started the job and human resources director testified on her deposition that she [00:04:33] Speaker 04: She could only go by what she read in the job description because she'd never supervised that aspect of World Vision's operations. [00:04:41] Speaker 03: Two answers, Your Honor. [00:04:42] Speaker 03: One, you're right that Ms. [00:04:44] Speaker 03: Freberg was deposed in her personal capacity as a fact witness, but then she also was deposed as a 30b6 witness. [00:04:49] Speaker 03: In preparation for that testimony, she did familiarize herself with the duties of a representative position. [00:04:56] Speaker 03: Also, we have the declaration testimony from Shannon Osborne that goes into the day-to-day functions and provides a long list. [00:05:02] Speaker 03: Pretty much all the things that I'm referring this court to are from either 30b6 or those declarations. [00:05:07] Speaker 04: I think I know the answer to this, but are there any other designated employees who are on the payroll of World Vision who would carry out similar ministerial functions? [00:05:23] Speaker 04: Not the four unique ones that I pointed Your Honor to, no. [00:05:26] Speaker 04: It seems to me that, and I think you argue this extensively, that they really are the face of world vision to the outside world. [00:05:35] Speaker 04: Correct, Your Honor. [00:05:37] Speaker 04: So that, I mean, we don't have a mega church here or any kind of a building where people [00:05:43] Speaker 04: come on Sundays to pray to God, this is all done through the CSRs. [00:05:49] Speaker 03: Correct, Your Honor. [00:05:50] Speaker 03: So the individuals who are connecting with World Vision to provide support to carry out the ministry, they're talking to the representatives. [00:05:57] Speaker 03: And then the public who's looking for information about how to get involved with World Vision's ministry, they're talking to the representatives. [00:06:03] Speaker 03: And when they're talking to partners, [00:06:05] Speaker 03: When they're talking to pastors and other church leaders about how they can join into World Vision's ministry, they're talking to the representatives. [00:06:11] Speaker 03: And that's a role. [00:06:12] Speaker 04: We found in the record an estimate that they make up roughly 8% of World Vision's 1,000 employees. [00:06:19] Speaker 04: So about 80 employees out of 1,000. [00:06:22] Speaker 04: Does that sound right? [00:06:23] Speaker 03: Pretty close, Your Honor. [00:06:24] Speaker 03: I think the number that I was looking at was 6.5%, so about 60. [00:06:27] Speaker 03: But it's a very small number in relation to the total number of employees worldwide. [00:06:33] Speaker 03: Right, and compared to say like in Our Lady of Guadalupe, where most of the employees at a Catholic elementary school are going to have similar employees to Ms. [00:06:42] Speaker 03: Morice Berrio and Ms. [00:06:43] Speaker 03: Beale, that's not true here. [00:06:45] Speaker 03: Most employees do not have the duties of representatives. [00:06:49] Speaker 04: And how about the overseas activities? [00:06:51] Speaker 04: Are there World Vision employees who are actually overseas administering the funds that [00:06:57] Speaker 04: are being allocated to charitable and ministerial purposes? [00:07:02] Speaker 03: Your Honor, I think we have less in the record about overseas employees, because this is World Vision USA that's before this court. [00:07:09] Speaker 03: But even as among all the class of employees, the only ones that have the unique functions I point this court to are representatives. [00:07:16] Speaker 03: OK. [00:07:16] Speaker 01: Thank you. [00:07:17] Speaker 01: I have sort of a related question, because I think it would be really problematic if we isolated [00:07:24] Speaker 01: various tasks, because any job can be broken down to tasks that are, if we did that in a way that divorced the tasks from the mission, that would sort of miss the point. [00:07:40] Speaker 01: It is possible, right, to consider that somebody who engages with donors on the phone is the equivalent of somebody working in a call center, and to sanitize it in that way. [00:07:50] Speaker 01: But I think our lady of Guadalupe talks about [00:07:53] Speaker 01: the functions, and we know we have to look at this, the Supreme Court has told us, regardless of title, we're looking at what does this person do, right? [00:08:00] Speaker 01: But I think, hence my concern about isolating tasks, I do not mean to offend anyone by this, [00:08:08] Speaker 01: One could say, oh, that person is serving bread, as opposed to, you know, if you didn't recognize, well, that's part of communion, right? [00:08:18] Speaker 01: And so, and I'm really just trying to, maybe I'm doing this awkwardly, but I'm trying to explain the concern I have about isolating tasks. [00:08:25] Speaker 01: I think Our Lady of Guadalupe says we have to figure out, when I put these Supreme Court cases together, we have to look at the functions, what does the person do in relation to the mission. [00:08:37] Speaker 03: Correct, Your Honor. [00:08:38] Speaker 01: Okay. [00:08:39] Speaker 01: So for me, this seems to be not really articulated in any of our existing precedent, maybe because the earlier ones just didn't call us to look at this. [00:08:49] Speaker 01: But that's why it seems to me to be really critical to take into account the particular mission here. [00:08:55] Speaker 03: I think that's correct, Your Honor. [00:08:57] Speaker 01: All right. [00:08:58] Speaker 01: So this is really for opposing counsel to respond to, too, because for me, this is the nub of the case. [00:09:03] Speaker 01: What we have is a record that says for this particular church, the mission includes interacting with donors to raise funds to provide services to the poor on the back end. [00:09:15] Speaker 01: And so that's what I'm looking at. [00:09:18] Speaker 01: And I just want to invite you all to discuss that. [00:09:23] Speaker 01: That's not true. [00:09:24] Speaker 01: One of the tasks you have identified within this job description includes praying with donors and praying internally within the organization. [00:09:32] Speaker 01: I don't think that can be divorced from the mission. [00:09:34] Speaker 01: But there are other tasks that can be if you're just talking about taking calls or placing calls. [00:09:40] Speaker 01: And so I just want to put that out there and give you both a chance to respond. [00:09:43] Speaker 03: Yes, Your Honor. [00:09:44] Speaker 03: I think a couple of points on that. [00:09:45] Speaker 03: One, I think the Barron case does a good job of pointing out what Your Honor was worried about, which [00:09:50] Speaker 03: where you abstract from the physical act and say, well, that physical act looks like nothing of significant importance to me. [00:09:58] Speaker 03: But in the context of the religious community, it's very important, like communion or like serving in a role that looks like maintenance work, but in the context of Zen Buddhism is very important to being a monk, a work practice apprentice within that faith group. [00:10:11] Speaker 03: And so it is important to understand the mission. [00:10:14] Speaker 03: And I think an important part of the mission here too is [00:10:16] Speaker 03: It's not just to funnel money from point A to point B. It's to express the religious beliefs of World Vision. [00:10:24] Speaker 03: World Vision is first and foremost a religious organization that wants to express its religious views through this ministry. [00:10:31] Speaker 01: So could I stop you there? [00:10:32] Speaker 01: I think that's exactly right. [00:10:33] Speaker 01: So is one thing to say your job includes reaching out to donors, talking to them on the phone, praying with them if they want to pray, right? [00:10:41] Speaker 01: But another worker in this organization with this same mission, if her job were putting a stamp on an envelope that requested money and putting that in the mail, that might have a very different outcome here, would you agree? [00:10:56] Speaker 03: Yes, Your Honor, that's correct. [00:10:58] Speaker 03: Yes. [00:10:58] Speaker 03: So you look, you know, Our Lady of Guadalupe and this Court of the President requires looking closely at the functions of the position. [00:11:05] Speaker 03: The Supreme Court said in Our Lady that at bottom it's the function that matters. [00:11:09] Speaker 03: And so you do a careful analysis of those functions. [00:11:12] Speaker 03: And here, you really have an unusually high level of expectations on this class of employees, which as Judge Talman pointed out, is a very small class of employees within the organization. [00:11:22] Speaker 01: But even if it were a very large [00:11:24] Speaker 01: It could be very large. [00:11:25] Speaker 01: The number of workers doesn't do much for me, just for your benefit. [00:11:30] Speaker 01: You can push back on that for me. [00:11:31] Speaker 01: I think we're looking at what they're doing. [00:11:33] Speaker 01: And so why should I be influenced by the number of people in the workforce that are... Is not dispositive, Your Honor. [00:11:42] Speaker 03: The number is not the question. [00:11:43] Speaker 03: Again, like as an Our Lady, you had a situation where most employees at a Catholic elementary school are going to be similar to the plaintiffs in that case. [00:11:51] Speaker 03: That didn't influence the court's analysis whatsoever. [00:11:53] Speaker 01: They're worried about floodgates, and they're worried about really important Title VII protections, as you know. [00:11:58] Speaker 01: So to use a silly hypothetical, but maybe it illustrates the point. [00:12:02] Speaker 01: I think their concern is if we do what you want us to do, that a religious organization would be free to rewrite a job duty and require that everybody pray internally, or I'm just making a silly example, that would then sidestep [00:12:19] Speaker 01: Title seven and create what they call a floodgates problem, right? [00:12:22] Speaker 01: Do you want to speak to that? [00:12:23] Speaker 03: Yes, and the Supreme Court has addressed this and other courts have addressed it I think the seventh circuit several times where you have people have kind of hooked up religious duties for the occasion It's it's a fake. [00:12:31] Speaker 03: We don't have that kind of record here. [00:12:33] Speaker 03: That's not this situation These duties were in place for many many years before ms. [00:12:37] Speaker 03: McMahon ever applied. [00:12:38] Speaker 03: They're still in place now they're the sincere duties the organization is and [00:12:42] Speaker 03: I think thousands of prayer requests come in to each representative every year that they are responsible for assisting with and often praying over. [00:12:51] Speaker 03: So these aren't these aren't in any way [00:12:53] Speaker 03: a situation like the concern that would generate that kind of floodgates consideration. [00:12:57] Speaker 03: Here we're dealing with sincere expectations that are required of the role and an unusually high number of expectations. [00:13:04] Speaker 03: So this is far from floodgates, this is a narrow disposition. [00:13:07] Speaker 04: But even our lady of Guadalupe and the related Catholic teacher case seemed to say that we don't look at the total amount of time [00:13:17] Speaker 04: that the employee devotes to secular versus religious functions, we look at what the functions are. [00:13:24] Speaker 03: Right. [00:13:25] Speaker 03: Because the key is, are they doing something important to the religious mission? [00:13:29] Speaker 03: Because then it doesn't matter if it's a few minutes or a few hours. [00:13:32] Speaker 03: That was exactly the point that this court made in the Alcazar merits panel opinion, where it said, if we're trying to tabulate minutes here and minutes there, then we're missing the point. [00:13:42] Speaker 03: And in the Barron case, the religious function there were a few minutes of every day. [00:13:46] Speaker 03: They weren't most of the day. [00:13:48] Speaker 03: Hosanna Tabor was not even close to a majority of the day. [00:13:51] Speaker 03: It was 45 minutes a day. [00:13:53] Speaker 03: So when this court has been looking at the question, they're asking, are they performing important religious functions? [00:13:58] Speaker 03: And here, that's shown by the record in spades. [00:14:01] Speaker 01: It is not often that we have a district court doing what did. [00:14:05] Speaker 01: This is a hard question, I appreciate, but it was a flip. [00:14:11] Speaker 01: So I'm a former trial court judge. [00:14:14] Speaker 01: I have a lot of empathy for that. [00:14:15] Speaker 01: These are tough cases. [00:14:17] Speaker 01: I think the first time around the McDonald Douglas test was applied, is that right? [00:14:21] Speaker 00: Correct, Your Honor. [00:14:21] Speaker 01: And then there was a rule 59 that was there. [00:14:26] Speaker 01: But a different result on the back end. [00:14:28] Speaker 01: Do you want to talk about what you think, where the district court got this wrong on the back end? [00:14:31] Speaker 03: I think the confusion there, Your Honor, was thinking that the church autonomy doctrine, separate from the ministerial exception, but church autonomy's relationship to religious and personnel decisions, [00:14:41] Speaker 03: was only boils down to pretext inquiries. [00:14:44] Speaker 03: If the pretext inquiry [00:14:45] Speaker 03: The judge below said, it's out. [00:14:47] Speaker 03: If it's not a pretext inquiry, then the case can proceed. [00:14:51] Speaker 03: I think that's a mistake. [00:14:52] Speaker 03: I think one of the ways you can see that is by looking at Milovojevic, which says that religious organizations can set the standards for religious organizations. [00:15:01] Speaker 03: And if they didn't say anything about if there's a question about if they're lying or not, which is the only time that the decision below would allow that type of protection to come into play. [00:15:11] Speaker 03: So I think that was the confusion. [00:15:12] Speaker 03: One way to see it, too, is if that was the rule, [00:15:15] Speaker 03: then the First Amendment would provide no independent protection for requiring someone to even be a part of your faith group. [00:15:21] Speaker 03: A Jewish organization could be required to hire an evangelical Christian and have no protection as it regards to non-ministerial employees on that basis. [00:15:30] Speaker 00: That's just not the law. [00:15:30] Speaker 00: Did you want to reserve some time? [00:15:33] Speaker 03: Your Honor, I would like to reserve some time. [00:15:34] Speaker 03: Thank you very much for watching that for me. [00:15:41] Speaker 02: May it please the court, Mike Zubit for Appellee Aubrey McMahon. [00:15:46] Speaker 02: World Vision and its Miki ask religious employers to grant them carte blanche discrimination. [00:15:52] Speaker 02: Focusing on the ministerial exception, if Ms. [00:15:55] Speaker 02: McMahon is a minister, very few employees of religious organizations will not be. [00:16:01] Speaker 01: Why is that? [00:16:03] Speaker 02: As the district court found, every single required religious duty of Ms. [00:16:08] Speaker 02: McMahon is true for every other World Vision employee, including what you just mentioned, the requirement to pray internally. [00:16:17] Speaker 02: That is a requirement at World Vision. [00:16:19] Speaker 01: I agree. [00:16:19] Speaker 01: And I think if we were just looking at that, this would be a different case. [00:16:22] Speaker 01: So what I'm specifically... I'm just one of three. [00:16:25] Speaker 01: So take that for what it's worth. [00:16:26] Speaker 01: But what I'm particularly concerned about is the way this organization defines its mission, right? [00:16:32] Speaker 01: and that it defines interacting with donors, even praying with donors, but interacting with donors as part of its mission. [00:16:42] Speaker 01: So I can imagine being an employer and saying, if I'm talking to donors and working with donors and professing to be a person of this particular faith, [00:16:53] Speaker 01: that it could be devastating to our organization, either internally, if the rest of the group, you know, this is more of a spree de corde and nonprofit, that this person isn't walking the walk. [00:17:04] Speaker 01: That could be a problem internally for an employer of this type. [00:17:08] Speaker 01: But also, that it could be devastating to relations with donors if there was a discovery that this person wasn't consistent with this particular faith. [00:17:17] Speaker 01: What about that? [00:17:18] Speaker 01: That seems to be very legitimate to me. [00:17:20] Speaker 02: So the issue here, first of all, there's no way. [00:17:24] Speaker 02: They don't explain how it don't. [00:17:26] Speaker 02: She had worked from a call center remotely. [00:17:29] Speaker 02: So it's no idea how either anyone could have found out she was in. [00:17:33] Speaker 02: So the role model cases don't work. [00:17:37] Speaker 01: Just so you don't leave that. [00:17:39] Speaker 01: I mean, that was troubling for me, too, because the record goes into this in some way. [00:17:42] Speaker 01: She's asked that question. [00:17:43] Speaker 01: She responds by saying, I'm aligned, she initially said, and that she was going to stick to the script. [00:17:49] Speaker 01: I'm asking something a little bit different, which is shouldn't an employer, an institution of faith that is relying on trust and with their donors, that it's terribly important to keep that faith and to be legitimate and sincere in the representations made to their donors? [00:18:05] Speaker 01: Why not? [00:18:06] Speaker 02: If, in fact, she had a problem following the World Vision's line in what she stated, there would be a problem. [00:18:16] Speaker 01: But you're saying something different, sir. [00:18:17] Speaker 01: Forgive me for interrupting, but you're saying something different. [00:18:19] Speaker 01: You're saying that World Vision should have to rely on her [00:18:24] Speaker 01: not being truthful to donors or hoping it doesn't come up in conversation or something. [00:18:31] Speaker 02: Look at the focus of discrimination. [00:18:32] Speaker 02: The focus of the discrimination is they have a policy of people in same-sex marriage. [00:18:37] Speaker 02: They do not have a policy against people who believe in same-sex marriage. [00:18:41] Speaker 02: And so the same concern could happen with an LGBTQ person who favors same-sex marriage or a straight person who does. [00:18:48] Speaker 02: And so it doesn't justify the terms of the discrimination, which is we will only hire people in same-sex marriage. [00:18:56] Speaker 02: Those are going to the freedom of expression claims as opposed to the ministerial exception. [00:19:01] Speaker 01: Right. [00:19:01] Speaker 01: And I don't mean to bleed into that because we're trying to focus on the ministerial exception. [00:19:05] Speaker 01: So maybe I'm sidetracking you. [00:19:06] Speaker 04: I've got a question for you on that, too. [00:19:09] Speaker 04: If these 65 or 80 employees are not ministers, [00:19:14] Speaker 04: then who is a minister in the World Vision Organization? [00:19:20] Speaker 02: I think the question, I think, for example, if she would have been applying for the director of donor services, if she was setting policy, if she weren't just following a script, if she was a job that depended, like you were on the Alcazar panel, as was Judge Gold, and you looked to whether the person was hired in part for their religious [00:19:39] Speaker 02: a training. [00:19:40] Speaker 02: This is a call center job customer service. [00:19:44] Speaker 04: What you just said in terms of the qualifications of the director of the center didn't sound much different to me than the requirements of a customer service representative. [00:19:56] Speaker 02: No, no. [00:19:56] Speaker 02: I was playing with the word for her job, not for the director job. [00:19:59] Speaker 04: But my question is a more general one. [00:20:00] Speaker 04: If these people aren't ministers, then show me a minister in World Vision. [00:20:05] Speaker 02: Who would you agree is a minister? [00:20:07] Speaker 02: Let's take an example of the Alcia Hernandez case. [00:20:12] Speaker 02: That someone who, again, was the press secretary for the organization. [00:20:18] Speaker 02: And they were the ones interacting with the public in general. [00:20:21] Speaker 04: But it's the CSRs who are the ones that on a daily basis are interacting with the public. [00:20:27] Speaker 04: It's not the director of the section. [00:20:30] Speaker 02: Again, the problem with this is [00:20:33] Speaker 02: If this, looking at that example, they say the same obligations to preach the ministry also apply to their ops people, to their marketing people. [00:20:43] Speaker 02: They do the same things and the duty to talk to donors. [00:20:47] Speaker 02: So the result, if this is the rule, then anyone who interacts with the public [00:20:53] Speaker 02: on behalf of the religious employers going to be a minister. [00:20:56] Speaker 04: I will ask opposing counsel on rebuttal that question which I meant to ask him earlier as to how broadly does this rule apply. [00:21:05] Speaker 04: But I'm trying to probe with you whether there are any positions within the organization that you would agree would be subject to them. [00:21:13] Speaker 04: And what I'm hearing you say is, well, they have to be a high-ranking official of World Vision. [00:21:17] Speaker 02: They don't. [00:21:18] Speaker 02: And let me get back to the criteria that the Supreme Court has used, because they told us in Our Lady of Guadalupe that applies to certain key roles, certain important positions. [00:21:29] Speaker 02: But a teacher is not making policy for the Catholic diocese that runs the school. [00:21:35] Speaker 02: Absolutely not. [00:21:36] Speaker 02: And that's just one of the... [00:21:38] Speaker 02: The Alito-Kagan concurrence in Hosanna-Tabor was largely adopted by the court in Our Lady of Guadalupe. [00:21:48] Speaker 02: And Justice Alito gave us there four examples of what would be an important key position. [00:21:54] Speaker 02: One was a leadership position. [00:21:56] Speaker 02: Two, those who important functions in worship service and the performance of religious ceremonies or rituals. [00:22:02] Speaker 02: And three, those who are entrusted with teaching and conveying the tenets of the faith to the next generation. [00:22:08] Speaker 01: Can I just stop you right there? [00:22:10] Speaker 01: I appreciate this. [00:22:12] Speaker 01: I think it's very grounding. [00:22:14] Speaker 01: But it goes back to that sort of works if you're talking about a fact pattern where you're talking about a church where there's a congregation and people come in the door and worship on [00:22:22] Speaker 04: A rigid high. [00:22:23] Speaker 01: Sunday or something, right? [00:22:25] Speaker 01: But this group defines its mission differently. [00:22:28] Speaker 01: So what do we do about that? [00:22:29] Speaker 01: It seems to me when Chief Justice Roberts said what is important is what does the person do? [00:22:35] Speaker 01: That we do have to look at that in relation to the particular ministry. [00:22:40] Speaker 02: To get back to your saying, the British Ministry is, of course, delivering aid to hungry children. [00:22:45] Speaker 02: So I think the people, those individuals who would be dealing with the people receiving the aid could very well be potentially ministers. [00:22:53] Speaker 02: Call those people missionaries. [00:22:55] Speaker 04: Right. [00:22:55] Speaker 04: OK. [00:22:56] Speaker 04: We don't know very much about them, because as I understood counsel's answer, we didn't really focus on offshore activities. [00:23:03] Speaker 04: So just looking at World Vision USA, [00:23:07] Speaker 04: We have a call center. [00:23:09] Speaker 04: We have these people who man the call center. [00:23:14] Speaker 04: And I don't know what the other 915 do. [00:23:19] Speaker 04: But your argument is that they're taking the position that every single employee is a minister. [00:23:25] Speaker 02: They did indeed take that position in the district court. [00:23:28] Speaker 02: And that's the problem. [00:23:29] Speaker 02: If these are ministers, [00:23:31] Speaker 02: then everyone at World Vision is going to be administered. [00:23:33] Speaker 01: I don't think so. [00:23:34] Speaker 01: I don't see why we would need to rely upon the internal praying that might be presented in a different case. [00:23:42] Speaker 01: But when I ask the question about, is this a floodgate? [00:23:44] Speaker 01: Is this an issue? [00:23:47] Speaker 01: We typically rule on just what's before us. [00:23:49] Speaker 01: Of course. [00:23:50] Speaker 01: And what's before us is somebody who has this particular job duty. [00:23:55] Speaker 01: I mean, I can imagine there would be good reason to write this opinion narrowly and as precisely as possible to provide guidance, but we don't typically go beyond what's in front of us. [00:24:02] Speaker 02: But the question is, again, the only unique function they have, and we agree, is the option to pray with donors. [00:24:10] Speaker 02: That is the only thing that they do differently. [00:24:13] Speaker 01: Why is that not enough? [00:24:14] Speaker 01: Because it is an outward-facing, you know, they're spokespersons for this agency. [00:24:19] Speaker 02: Well, as Miki said, everyone employed by a religious organization is a spokesperson. [00:24:27] Speaker 02: They gave the example of the facilities manager, who is also a spokesperson. [00:24:32] Speaker 02: And so if the answer is, again, drawing the line, this is far beyond what any court has allowed for the- The facilities manager have to pray with donors or pray without [00:24:42] Speaker 02: were outwardly with yes according to their job duties you're supposed to pray throughout you in all examples and so that internally there's the internal prayers but does the facilities manager need to pray with people yes that's part of what they say is part of their duties yes they did that is exactly that is part of it everyone is supposed to carry out through ministry and witnessing [00:25:03] Speaker 02: So it comes down to then the line is that anyone who is a customer that deals with the public for, again, this is a religious charity that does terrific work, and there's nothing in the Supreme Court that said merely interacting with the public is sufficient. [00:25:21] Speaker 01: I'm not suggesting merely interacting with the public. [00:25:23] Speaker 01: I'm imagining a facilities manager isn't integral to the mission here in the same way at all. [00:25:33] Speaker 01: Why would that person be comparable to someone who's dealing with donors to raise money to give to the poor? [00:25:37] Speaker 02: Well, again, we're looking at the mission. [00:25:43] Speaker 02: The job of the customer service rep is to raise money for their good works. [00:25:48] Speaker 02: That is the job. [00:25:51] Speaker 02: then by definition, they have to interact with the public to raise money. [00:25:56] Speaker 02: So again, you're going to have a rule that anyone who raises money for a religious organization is going to be a minister. [00:26:02] Speaker 02: That is far beyond the trade-off that I think the Constitution requires. [00:26:09] Speaker 02: This court has said that the ministerial exception is broad, but only so broad as the First Amendment requires. [00:26:14] Speaker 04: Let's take the hierarchical church example. [00:26:17] Speaker 04: If the minister during Sunday service [00:26:20] Speaker 04: solicits donations from the congregation in order to fund the missionary work. [00:26:28] Speaker 04: Is that acting in a ministerial function, or has the minister now become just a donor solicitor? [00:26:36] Speaker 02: The minister is a minister regardless. [00:26:38] Speaker 02: The question is, what's sufficient to make someone who would otherwise not be a minister a minister? [00:26:43] Speaker 02: And I don't think there's any support in any of the case law merely asking the public for money to support a worthy charity for a religious organization. [00:26:54] Speaker 02: And that's what you're going to have. [00:26:57] Speaker 02: Whatever the line might be internally with World Vision, you're not going to be able to draw a line for anyone who raises money. [00:27:04] Speaker 04: But no religion can sustain itself without some form of income. [00:27:10] Speaker 02: Absolutely. [00:27:12] Speaker 04: You're saying if there's money involved, you can never be a minister. [00:27:16] Speaker 04: I'm not saying it's not sufficient. [00:27:18] Speaker 01: But one can solicit funds without engaging in prayer. [00:27:24] Speaker 01: We're just looking at this particular job description and how it's done here. [00:27:28] Speaker 02: And the question is whether praying with another person is by itself to make you a minister. [00:27:33] Speaker 02: And I think it's not true either legally or factually. [00:27:36] Speaker 02: First of all, two court cases, the Palmer case and the Califano case both said, [00:27:40] Speaker 02: praying with students is insufficient. [00:27:42] Speaker 02: And second, one human being prays to another all the time. [00:27:47] Speaker 02: People do that as an act of empathy, and that does not make you a minister. [00:27:51] Speaker 02: Bob Clients have offered to pray with me. [00:27:54] Speaker 02: We weren't ministers. [00:27:55] Speaker 02: And so I think focusing on the two things, which is raising money, which they do differently, and interacting with the public with the option to pray, [00:28:04] Speaker 02: Again, you're going to bring every person who raises money or who, in fact, interacts, I think, with the public for a religious organization as part of their job. [00:28:14] Speaker 02: It's all going to be mission critical. [00:28:16] Speaker 02: I mean, again, the IT person who runs the system is mission critical. [00:28:21] Speaker 02: But I understand what you're talking about. [00:28:23] Speaker 02: So this is the problem, the line you're drawing. [00:28:25] Speaker 01: I would beg to differ that the IT person or the person in charge of leasing the facility is integral to the mission in the same way we're talking about. [00:28:32] Speaker 01: I think it's a qualitative difference. [00:28:33] Speaker 02: I understand what you're saying. [00:28:34] Speaker 02: It just can't be a but for test. [00:28:36] Speaker 02: That's what I'm saying. [00:28:36] Speaker 02: You have to look specifically at what the job is. [00:28:39] Speaker 01: What would you have us do? [00:28:42] Speaker 02: To affirm the district court. [00:28:43] Speaker 01: OK, failing that. [00:28:45] Speaker 01: How would you have us draw the line? [00:28:46] Speaker 01: I think your concern is justified, as I said earlier. [00:28:50] Speaker 01: In Title VII, these are important employment protections. [00:28:53] Speaker 01: And of course, we're trying to balance. [00:28:56] Speaker 01: But I don't see this job as, I don't think the test is going to work if it's a matter of sort [00:29:03] Speaker 01: looking at each function in isolation. [00:29:05] Speaker 01: Absolutely. [00:29:05] Speaker 01: And I've been pretty clear, again, I'm one of three, so whatever. [00:29:09] Speaker 01: Who knows what will happen in the back room when we conference? [00:29:11] Speaker 01: Maybe I'll get outvoted. [00:29:12] Speaker 01: But it does seem to me to be really critical to look at what this person does in relation to the mission. [00:29:16] Speaker 01: I've been very upfront about that. [00:29:17] Speaker 01: So you can push back on it. [00:29:19] Speaker 01: And in this case, just give me one more shot. [00:29:21] Speaker 01: What do you think I'm missing? [00:29:23] Speaker 02: Well, I think you're missing is what the job description is, which is what everyone agreed what this person would have done. [00:29:28] Speaker 02: 10 out of the 13 requirements are all secular, and two of the three religious ones apply to every single employee at World Vision. [00:29:37] Speaker 04: But why wasn't that? [00:29:39] Speaker 04: The Supreme Court said that was good enough in the teacher cases. [00:29:42] Speaker 04: What was? [00:29:42] Speaker 02: I'm sorry. [00:29:43] Speaker 04: That the bulk of their time was spent on basically teaching secular subjects, but a smaller amount of time was devoted to teaching their students the principles of the Catholic faith and [00:29:54] Speaker 02: This isn't a bulk of the time thing. [00:29:57] Speaker 02: You look at the job description, what did World Vision expect them to do? [00:30:02] Speaker 01: Well, actually, I'm going to push back on that. [00:30:04] Speaker 01: It isn't a bulk of the time thing. [00:30:05] Speaker 01: I don't think we count up tasks. [00:30:07] Speaker 01: I don't think we count up hours. [00:30:08] Speaker 01: The Supreme Court has said as much. [00:30:10] Speaker 01: But where is a religious school? [00:30:13] Speaker 01: They said, that's a really important function. [00:30:15] Speaker 01: That mission is indoctrinating kids, raising them up in the face. [00:30:21] Speaker 01: So I'm trying to take that rule and apply it here. [00:30:24] Speaker 01: How does it map here onto this fact pattern? [00:30:26] Speaker 02: And again, the purpose of the mission of the organization is to give humanitarian services to needy people. [00:30:33] Speaker 02: And of course, they have to raise money to do that. [00:30:36] Speaker 02: And again, I think [00:30:37] Speaker 02: The difficulty here is if you say that simply raising money on behalf of a religious organization where you're going to engage in prayer, you're going to exclude a huge swath of people from all legal protection, state and federal. [00:30:56] Speaker 02: And that is really the question. [00:30:57] Speaker 01: Not every religious organization has as its central mission raising money for the poor. [00:31:02] Speaker 01: Not all of them do. [00:31:03] Speaker 01: Well, some are religious schools, some have the type of congregation that we've just been discussing. [00:31:11] Speaker 01: So I think your floodgates argument is a stretch. [00:31:15] Speaker 02: Well, Your Honor, again, I think this case, as I think you suggested earlier, is quite different than any of the other cases that's out there. [00:31:24] Speaker 02: And you would be pushing the ministerial exception, I believe, a lot farther than either this court or any other court has pushed it in terms of taking people whose jobs are essentially secular [00:31:39] Speaker 02: and whose jobs don't have any of the hallmarks that I just mentioned of what the Supreme Court considers important religious functions. [00:31:47] Speaker 04: Our Buddhist case comes pretty close to covering people who are engaged in activities that some might consider to be purely secular, and we said not necessarily so under this particular religion. [00:32:01] Speaker 02: I think you have to focus in the Baron case. [00:32:03] Speaker 02: Again, the court analogized it to the prior Alcazar case. [00:32:07] Speaker 02: That was a person who was a minister in training. [00:32:09] Speaker 02: And so once you're a minister in training is what Alcazar says is you're no different than a minister. [00:32:14] Speaker 02: These folks are not minister in training. [00:32:17] Speaker 04: But they don't have they don't have a seminary. [00:32:18] Speaker 04: They have some sort of a training function, but it's not clear to me exactly what they're trained to do. [00:32:24] Speaker 02: Substantively, the training is the same other than the fact that they're trained to deal with donors. [00:32:29] Speaker 02: It's longer because they have to train the donors. [00:32:31] Speaker 02: But the religious aspects of the training, and this is in the record, is the same for every World Vision employee. [00:32:36] Speaker 02: I think I'm past my time. [00:32:37] Speaker 02: Thank you very much. [00:32:38] Speaker 02: Thank you. [00:32:39] Speaker 00: Thank you. [00:32:46] Speaker 03: Judge Tallman, you asked how broadly does the rule apply. [00:32:49] Speaker 03: The answer is two representatives. [00:32:51] Speaker 03: That's the question before this court. [00:32:52] Speaker 03: That's the only thing this court needs to resolve. [00:32:53] Speaker 03: I thought you took the position below with the district court that it covered all of your employees. [00:32:58] Speaker 03: No, Your Honor. [00:32:59] Speaker 03: If you look at FDR 4 through 5, you see that we're expressly distinguished and say that we're only talking about representatives. [00:33:08] Speaker 03: And even if we had taken that position below, I think you did. [00:33:11] Speaker 03: It's a legal question for this court to resolve, not our position that matters. [00:33:14] Speaker 01: Okay. [00:33:15] Speaker 01: I think you did. [00:33:15] Speaker 01: That was my read of the record as well somewhere in there that that had been the position. [00:33:20] Speaker 01: And, you know, your point as well taken this could be written narrowly. [00:33:23] Speaker 01: It is also the case that whenever we publish, we're looking at every comma because it's going to apply to lots and lots of people. [00:33:31] Speaker 03: Certainly. [00:33:31] Speaker 01: So how would you have us craft this rule? [00:33:33] Speaker 03: Your Honor, I think you can look at the opposition brief at page 33 that it concedes that the district court was correct in finding, quote, representatives perform a uniquely important religious function at World Vision by praying with donors. [00:33:47] Speaker 01: So, okay, praying with donors. [00:33:49] Speaker 01: So you would not have us rope in, include the internal prayers. [00:33:53] Speaker 03: Well, I think that's important too, Your Honor. [00:33:54] Speaker 03: I think so the Supreme Court looks at it. [00:33:56] Speaker 01: That's why I asked you how you would have us craft this rule. [00:33:58] Speaker 01: Correct. [00:33:58] Speaker 01: And what you just articulated had to do with the outward facing. [00:34:01] Speaker 03: Correct, Your Honor. [00:34:02] Speaker 03: I think that's dispositive. [00:34:04] Speaker 03: So what courts do in an administrative exception case is they look at all the duties that an employee performs that have religious significance. [00:34:12] Speaker 03: And I think this court would want to lean on that concession that was a correct finding in the lower court. [00:34:18] Speaker 03: And I think that's what makes this case a straightforward application of Our Lady in other cases. [00:34:22] Speaker 03: Your Honor, just two quick corrections. [00:34:25] Speaker 03: My friend on the other side said that every single duty is required of all employees. [00:34:29] Speaker 03: That's incorrect. [00:34:29] Speaker 03: I think the concession in OP 33 gets to that. [00:34:32] Speaker 03: Also, he correctly quoted three of the four components, hallmarks, that Justice Alito and Justice Kagan identified in the Hosanna-Tabor concurrence, which then went into the Our Lady case. [00:34:43] Speaker 03: But the fourth one, which he didn't mention, was being a messenger of the faith. [00:34:46] Speaker 03: And that's expressly what representatives are required to do here. [00:34:51] Speaker 01: But what about the person who's in charge of facilities? [00:34:53] Speaker 03: Your Honor, a vendor who's in charge of facility is not going to be a minister under this court's test. [00:34:58] Speaker 01: under this organization's mission. [00:35:00] Speaker 03: Correct, Your Honor. [00:35:02] Speaker 01: And I think that's part of the... And that's the same with the IT guy. [00:35:04] Speaker 03: Right. [00:35:07] Speaker 01: So the... What if this organization required the... I think he does, requires or says that somewhere in the record. [00:35:17] Speaker 01: Let's imagine a hypothetical organization that requires everybody to pray internally every day, regardless of their job duty, the person who cuts the grass, the person who works in the cafeteria, right? [00:35:26] Speaker 01: all of them, and you would have us look at what that person does and how key that role is in relation to [00:35:37] Speaker 01: the mission of this organization. [00:35:39] Speaker 03: Correct, Your Honor. [00:35:40] Speaker 03: And I don't think, I think that all the rule that this court writes can be key to the specific and unique functions of representatives and doesn't have to reach all the things that are shared with every other employee. [00:35:50] Speaker 04: So it wouldn't necessarily apply to a checker at a union gospel mission or a goodwill thrift store? [00:35:57] Speaker 03: Not necessarily, Your Honor. [00:35:57] Speaker 03: I think that's going to depend on the facts of each case and that's not what's in front of this court. [00:36:02] Speaker 00: Okay. [00:36:02] Speaker 00: Hey, counsel, your time is [00:36:06] Speaker 00: You're over time by a few minutes. [00:36:08] Speaker 00: Thank you, Your Honor. [00:36:09] Speaker 00: But of course, you should correctly answer Judge Christen or Judge Tolman if they have more questions. [00:36:20] Speaker 00: I don't have anything to say. [00:36:21] Speaker 00: No. [00:36:22] Speaker 04: Thank you. [00:36:23] Speaker 04: Thank you both. [00:36:23] Speaker 04: Thank you both very much. [00:36:25] Speaker 00: Thank you. [00:36:25] Speaker 00: If nothing further, then that case shall be submitted. [00:36:31] Speaker 00: And the court will take a [00:36:35] Speaker 00: Ten minute recess.