 Okay, welcome back to Senate Education 344 on January 14th Friday afternoon. Senator Hooker question kick us off. You're muted Senator. Sorry. Before we go on. Could I give some suggested witnesses for the waiting study? I'd like to hear more from people from Winooski that we heard from and people from the coalition for Vermont student equity. We heard, you know, we voted the report out, I voted for it, knowing that we were going to have more of a discussion in committee. So I'll have some names. Maybe I can give them to Daphne and you can absolutely see about having them. Thanks. Yeah. Anybody that you would like, I've already asked Daphne to reach out to the Winooski. Excuse me, school district in Burlington, but you are the other group that you mentioned. The coalition you said. Yeah. Yeah. Yeah, I'll let a couple of names from the Winooski people who, you know, had testified before. Yeah, great. If you wouldn't mind just email those to Daphne and just copy me. But yes, anybody you want. All right, thanks. Great. Yeah, thanks. So, Mr. Demeray, Ms. St. James, good to see both of you. And I've already welcomed Mr. Leonard to the committee. We are returning to some of the issues that we talked about yesterday and I'm going to ask Mr. Demeray to tee this up. And we have a new attorney that just entered the room. I see her. She's sneaking around the corner. There she goes. She's more than welcome to join us since this is the education committee. It looks like she's midway through. She's involved in education, I'm sure. She is. She's got firsthand experience of first grade right now. Great. That's great. Great. Mr. Demeray, the floor is yours. Okay. So good afternoon for the record, Jim Demeray of this console. So yesterday we were speaking about the aspects of your bill that deal with anti-discrimination. And one of the areas that we were talking about was the area of the ability of churches and religious organizations to not have to comply with anti-discrimination labor laws for certain categories of employees called ministerial employees. And the question I think we had was the interaction of that principle, which comes out of the Guadalupe case, that principle against the Vermont exception in labor law in 17 BSA 495 sub-e and how those two things work together. And what the history of that Vermont law is. So I've asked Damien to come in because he's the expert on labor law. And I have had posted from yesterday you've got the bill and for today you've got that section of labor law. I asked Daphne to post. So if Damien wants to pull that down or reference to it, it's there for you. So with that, I'll just turn it over to Damien. Great. Thank you, Jim. So for the record, Damien Leonard, legislative council. So would it be helpful for the committee if I pulled up the section of labor law that Jim was referring to and shared it on the screen? I'm trying to adjust to how every committee works and some committees like it when I share my screen and others don't. But let me pull that up for you if that's okay, Mr. Chair. Yes. Okay. Okay. So if we look at this here, this is subsection 21, VSA subsection 495 E. And what it says is that the provisions of the section prohibiting discrimination on the basis of sexual orientation and gender identity shall not prohibit or prevent any religious or denominational institution or organization. Or any nonprofit organization or educational organization that's operated, supervised or controlled by or in connection with a religious organization from giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment that is calculated by the organization to promote the religious principles for which it is established or maintained. So this language was enacted in 1992 in Vermont. At the time that Vermont added the protections against discrimination on the basis of sexual orientation to its law. In the addition of the words and gender identity were added in the mid-2000s when we added protections against discrimination on the basis of gender identity. But this, to some extent, this predates the two cases at the Supreme Court, which have extended the ministerial exemption clearly to essentially preventing the anti-discrimination laws from being applied against a religious leader. So there really, this comes out of a different period and background than the case history, which we dealt with and discussed last year. I looked back today at what legislative history we have on this in the state house. And there may be more on the archives, but unfortunately with COVID, we can't get the crates of documents from the archives on short notice anymore. But there was no discussion of this in the floor votes in either the Senate or the house. The discussion that's recorded in our journals from that time really focused more on the issue of whether it was appropriate to extend protections against discrimination on the basis of sexual orientation generally, rather than the issue of whether to add this carve out for religious organizations. This was added in committee in the Senate, or at least it, this is what passed the initial, in the initial bill that came out of the Senate. And it passed without any floor discussion that's, that was recorded. And didn't get addressed in the house in terms of the recorded comments in the journal there. So it seems that this was probably a carve out in order to address concerns that were raised by religious organizations at the time that the bill was brought forward. And it stayed in our laws since then with the only real amendment to it in the last 30 years being the addition of the words and gender identity when we extended anti-discrimination protections on that basis. Does anyone have questions about that? Yeah, Senator Persley. Thanks for the history. I guess my question is, is there any case law, any testing of this provision whatsoever? Not that I'm aware of. So the the case law that's come out in recent years has been at the federal level. And it's been on the issue of the ministerial exemption, which actually is broader than, than this exemption. So the ministerial exemption essentially provides that. At least with respect to a religious leader. I understand. The ministerial exemption in like Guadalupe case. But what I found interesting with this provision in Vermont statutes, which I don't know if it's been tested at all. And just to confirm again on the history, was it the original, the just original version, did it say the provisions of the section and then didn't have sexual orientation or gender identity, or as originally written. It did include sexual orientation. Yeah. As, as originally written, it was added specifically with reference to discrimination on the basis of sexual orientation. And gender identity was a, I believe a 2007 edition. Does it strike you as strange that they would say. Sexual orientation and then say. You can't discriminate on sexual orientation. You can't discriminate on sexual orientation. About preference of persons of the same religion. So it's kind of like saying. Because above it said you can't discriminate on sexual orientation. You can hire a Protestant if you're a guy, you can hire a Protestant if you're a Catholic territory. So it seems weird to me to say, because you can't discriminate. Because of sexual orientation. You can't discriminate on religious preference. I don't see the connection between. So what this is essentially saying is that the prohibitions against discrimination on the basis of sexual orientation. Basically don't operate to prevent a religious organization either from saying. The first argument is saying we're going to give preference to someone who is either a member of our religion, or what's often discussed in these cases is. Are they in good standing with our religion? So for example. The, some of the language that. I came across in a second circuit case from a Catholic school was that the. The individual in order to be hired, their employment contract basically said that they would, you know, that they were in line with the teachings from Rome, meaning that not only are you a practicing Catholic, but you're in line with the doctrine as it comes out of the Vatican. Not necessarily, you know, and not practicing something different from that. And the same. Could go for. Other instances where within a particular broad religion. You may have narrower teachings that are only followed by some members of that religion. Or you may have. Instances where, for example, say you're, you're. Broadly Baptist, but are you a Southern Baptist or another. Another subset of Baptist. Within that. And so that, that's one of the things there with the preference. And that's the same religion or denomination. The other piece here, and I think this gets more closely at what you're talking about is taking action with respect to matters of employment. To promote the religious principles for which it's established or maintained. And that essentially is saying. If you're opposed to, in this case. For example, well, this, this predates same sex marriage, but if you're opposed to same sex relationships. And you have someone who. Is openly gay who applies for a position. You could deny them employment. Because that's contrary to your religious principles. Right. Yeah, it was weird that they talked about the same religion, but I think the way you explained it. To somebody could say, well, I'm a Catholic, but they would say, well, you're not practicing Catholic. If you're in a same sex marriage at the time. Yeah, and then it makes a little more sense that way. But I, and as far as the second clause there about all they have to do is calculate by the organization. That it's not promoting their principles. It seems very broad and basically. Any religious organization could easily calculate this. If they wanted to discriminate on the basis of sexual orientation or gender identity. Yes. And so, yeah, they could argue that they're simply giving preference to someone who maintains their core religious beliefs or who is a member of the same religion. And it, you know, one thing that I don't know, because I was. I think I was 12 years older than almost as young as Astrid when this was adopted. Not quite that young. I think I was 12. But the one, one thing is that this may also have been taken from similar language at the federal level. That was put into some of the or proposed or put into some of the federal statutes that were being adopted at the time. To protect religious preference for, for example. I don't know. I don't know. I don't know. I don't know if I'm a member of the same religion and not being accused of religious discrimination. Right. One more point and then I'll stop chair. Yeah. So why not any of the other. Protections above. You know, so this provision mentions those two, which I could get at our kind of. Top button issues for some religious organizations. But. But is it. The right to discriminate on those two items mentioned. Yeah, this is the. Within the context of the Vermont law, this clause just limits that sort of exception to sexual orientation and gender identity. And doesn't extend it to age or disability or race. Although what we've seen with the federal. Precedent and the precedent in the second circuit. Is that the ministerial extension effectively does extend it to that as long as the person qualifies. As a minister or other faith leader. So. Thank you. What if back center person's question about case law. Well, what if we were to make a change to this? What I mean, what, what sorts of what if we were to say, all right, well, enough's enough. You know, you can't discriminate. On the basis of sexual orientation and gender. If you're a matter. What religious institution you might be a part of. So. I think that the challenge with that is that the. The ministerial exemption is grounded in the first amendment of our US constitution. And because the federal law and federal constitution are supreme. That essentially you can argue that. Yes, state law might say this, but state law cannot supersede the federal constitution. And so the federal constitution prohibits. The, the, the supreme court and the circuits have all. Basically. Come out to varying degrees to say that the, the first amendment of the federal constitution prohibits us from getting entangled in issues of religious leadership. And so if a religion chooses to dismiss someone from a leadership position or a position where they're. You know, teaching or ministering the faith. That it is not our place to interfere in that because that. That gets into issues of religious entanglement where we're essentially telling a religion. Who they can have as a leader or a minister within their, within their faith. And that's not the place of, of the government in the United States. And so what we're going to do is we're going to, you know, we're going to be the issue here is even if we take this off the books, the ministerial exemption will still kick in. If there's the argument that the individual is a. A minister for want of a better word, although that term. As the courts have repeatedly. Mentioned that term. You know, applies in many of the Christian faiths, where the term may be different. And where, you know, different faiths recognize different forms of ministry based on the, the teachings of their faith. And so what you essentially have to do is look at the function of the individual, but for many teachers. Or, you know, principles at a religious school. And the, their job may include things like praying with their students, taking their students to religious worship. Organizing religious practices at the school. So, in those senses, if you look at the function of their job. You can, you can basically get back to the point where you say yes, they're subject to the ministerial exemption. On the other hand, you may find that people who are not involved in religious teaching at that school. Let's say, you know, someone who does maintenance on school property or has a purely administrative position and doesn't. Carry out anything that's strictly religious, then perhaps there you could argue, no, the ministerial exception doesn't apply. So in that case. In that case, the protection that you'd look to is this protection under 495 E. And there you could extend it and you could at least provide. You know, the, or you could eliminate this and then extend protections under all of our anti discrimination provisions to those individuals, but it would just be limited to that subset. Center person. Well, I think if we're going to this bill is going to move forward, I would propose that we strike this from the statute because I think it's just offensive on its base. And it's even though the Supreme Court has a decision, it's similar to you. The issue that we have old covenants in Vermont, you can do some title searches on old homes that says that the home cannot be sold to Jewish people or people of color. Those are on unenforceable covenants, but since they're repugnant, they, they often when they're discovered get stricken from the title because people don't want to just have that on their title, even though they're completely unenforceable. So it'd be similar to here. We don't need it in there because of the Supreme Court decision. So I would prefer that the statute just not have it in there. They can because of the Supreme Court, they can discriminate against everybody on race, age, disability, whatever they want, if they could make this ministerial argument. So I just would rather that be the case that they make the argument on the Supreme Court and not, not have something in the statute that would support such discrimination. Senator ocher. I totally agree. And I think Senator did was also saying yes, as do I. Okay. Great. We'll have Jim. The same James work on that. Do either of you have a comment before we, we move on. Jim or Beth. No, Jim. Okay. Do we have other questions for Mr. Leonard while he's here? I don't see. I just want to ask. Floating around in my head. I just can't. I'd like to know how you differentiate between what is a core value of a school and what is not when you have a, an institution that's grounded in a religion and core values. How do you separate that from, you know, anything that goes on at the school, whether it's sports or, or, you know, the way you handle money. How is that separated? In law. In a court case, basically. Well, in a court case, I mean, how do you. Yeah, yeah. Yeah, so this is one of the. This is one of the things that keeps legal scholars publishing on this issue. Because there's a lot of argument going back and forth. So the original case on this, this issue, Hosanna Tabor, set out a sort of four guidelines that the court should look to, which included the title. Of the individual. The training that they'd received. And whether they held themselves out as in a, being in a ministerial role. And then finally, whether their duties reflected a role in conveying their religion's message. And mission and carrying out its mission. The, the more recent case, the, the Our Lady of Guadalupe school case. That one really. It said, you know, those, those other three can be helpful, but what we really are concerned about is this function. And. That, so what you really have to look at in these cases is. It becomes a case by case assessment by the church where they're looking at. Is the role that the person had integral and conveying the religion's message. And carrying out its mission. And this has become a, like I said, a subject of argument among legal scholars as to how far. The, the part of that decision that looked at the carrying out of the churches or the religion's mission. Extends to things. That aren't related to actually conveying its message or its teachings. And so, you know, I think there are questions about does a. And this is, this is something where the cases that I've seen at the Supreme court and in the second circuit. Haven't dealt with issues of, for example, does this apply to. For example, a coach that leads the students in prayer before games. You know, does that count as. You know, sufficiently ministerial. And then. I mean, if I'm an administrative assistant in an office, like somebody would say doing God's work by supporting. Right, supporting the mission of the religious organization. And that, that's been sort of the, you know, the sort of the maximum. Yeah. Possible extent. But at least at this point in the second circuit and. In the Supreme court, we go into a case that extends it to the point of saying, you know, this. The. The administrator or the accountant. Or someone who is doing something that is a. A core function for that organization to continue its existence, but not necessarily related to the teachings of the faith. We don't have a case that actually extends it that far. The cases all deal with someone who. Is involved in teaching. When it comes to the schools here. So a principle that. Leads students and prayers and organizes religious events. Teachers. And the three cases all happen to deal with Catholic schools. So teachers that lead the students in prayer, take the children to mass, teach the catechism, but also happen to teach other subjects at the school. And in all of those cases, they found that. You know, the, because they're involved in sort of the core of the church. So they were. The sort of teachers of the church's. Catechism and its faith and to be teaching consistent with the church's teachings. That they were ministers within the ministerial exemption. So it. At this point, I think it's, it's safe to say that if the individual is involved in teaching the faith, it's not necessarily covered by the ministerial exemption. I think it's an open question for now. If someone is, is involved in another arguably. Core function to that organization's mission. But they're not teaching the faith. I think that that. It hasn't been clearly decided, but I'd say that that is much less. At least in my reading of the cases here that that's a much more of a, you know, more of an ambiguous argument for the ministerial exemption. And I think there's a strong argument there that the ministerial exemption. Wouldn't apply. But I also don't have a court case where. We have a panel of, of appeals court judges or the Supreme court coming down and, and making. You know, sort of a. Decision on that. I don't know. I don't know. I don't know. I don't know. I don't know. I don't know. I don't know. Right. Okay. Thank you. Mr. Demeray. Any additional questions? I don't see any other questions that we had for Mr. Leonard on my. In my notes, but I don't know. No. I sent a person to me that the title. Title of the document I have posted. That's the wrong title number. So I'm going to crack that for Daphne. But beyond that, no. And if you would make these. Any other questions, I don't know. Any other questions that we had about yesterday and today. And we'll take a look at a fresh draft next week. Mr. Leonard, any final comments? I think we're, we're okay. All right. Well, thanks for joining us. Very much appreciate it. Thank you. Have a great weekend. Actually, why are you here? Would you be somebody that we would talk to about as it relates to businesses about a public taking. That's something. No, I don't do taking's law. I don't know who covers taking's law within our office. I see Mr. DeMarie may know. Well, I spoke to. David Hall. Okay. About this. And. So he's the best person probably to have been. I will have Daphne have. David Hall. And then. Okay. Thank you. Thank you. You're welcome. The only other. Excuse me. Issue that we had on our agenda was to get an update from. I put my name there, but I don't know. Senator Hooker. Did it come up this morning in committee? Antigen rapid tests and whether or not. We would be able to. Loosen up or any update on the. So what I'm looking for the. Accessing them. I have to say, I was remiss and I'm not reminding. Senator Lyons to ask that question of Dr. Levine, but we got into other discussions. Okay. So I'm not sure what the. What the supply is like, but. Thank you. Didn't seem as if. I mean, I, I haven't seen anything that would suggest that it's a problem right now. And. You know, schools will have the antigen tests at the schools, kids who test positive under the new paradigm would be sent home with antigen tests. And I'm assuming it's because we have. A sufficient supply to accommodate. And we'll find more to be more about this. Well, when. Secretary French and Dr. Levine come in next week, but I, and I'll reach out also, but the idea. And I think that would be enough to send home. Or the ideal, if you will. Would be that there'd be enough to send home. And there'd be also enough for schools. So. Everybody can get tested and it sounds like we might be moving in that direction. Okay. Good. Anything else committee. Okay. Did you have a final comment? Nope. Okay. All right. Well, thanks everybody. Clearly. A lot of work to do ahead. Thank you. Thank you. Thank you. Thank you. Thank you. Thanks everybody. And look forward to seeing you on Tuesday, unless you want to just give me a call to check in over the weekend on something or zoom. I'll be around and just hanging out and love to hear from any of you. Great. Thank you.