00:01Mr. Kavanaugh?
00:02I wasn't quite sure of your answer to Justice Jackson.
00:05If Catholic Charities ran an orphanage or a home for the aged, what result?
00:13I think it would be treated like their current ministries, like a housing ministry or other
00:18things.
00:19So I think that that language in the legislative history to the extent that it then got transposed
00:25into Wisconsin law and was seen to say, you know, orphanages are out.
00:33I think that would be a problem because there's nothing in the law itself that says that,
00:40you know, the text of the law that says that you can't have an orphanage.
00:44So to the extent that reflected an understanding at the time, that understanding is simply
00:49inconsistent with the statutory language.
00:52Is that the answer?
00:53Yeah, I think the answer is just that statutorily, I think that would be very hard to do.
00:56And I think, as I was trying to make out earlier, that there's a constitutional avoidance problem
01:01there too.
01:02If you have, if you create these sets of approved religious, you know, judicially approved religious
01:08activities, that's a real problem.
01:10You know, this court has identified them in cases like Jose de Tabor or Our Lady of Guadalupe,
01:16but it was very clear not to say that that's a closed set.
01:19It's an open set, and that other kinds of activities or things might be, might be in
01:23there.
01:24Obviously, you know, ministerial exception is a little bit different because it's talking
01:27about these important religious functions within the body, but religious, you know,
01:34the set should not be closed by the judges.
01:36The judges should not close it.
01:37And I think your answer is getting at another question I have is the other side relies on
01:43the phrase distinctively religious activities, and I just want to make sure you can respond
01:47to the use of that phrase.
01:49Yeah, I just, I think it's, you know, six and one half dozen of the other, you know,
01:54if you look at the opinion below, they consistently talk about, you know, it's wholly secular
02:00endeavor, it's not religious in nature, it's secular in nature, and then they rely repeatedly
02:06on the list from the Dykema case from the 7th Circuit in the 80s, and, you know, they've
02:13come up with a little list, and they're saying that this is the closed list, and we're outside
02:17the list.
02:18Whatever, you know, they say, oh, it's just an illustrative list in the opinion, but we're
02:23still out.
02:24You know, we're, what we're doing clearly is not on the list.
02:27Whatever other things might go on the Wisconsin Supreme Court's list, we're not on that list.
02:31You know, helping the poor or helping the elderly is not on the list.
02:34And the limit on that, to go to the other side, is what, again?
02:38Sincerity is one limit.
02:39I would say—
02:40But what else?
02:41Is there any other limit to the Chief Justice's—
02:42I would say that's probably the main limit is it's sincere.
02:45Is it the only limit?
02:47Well, I would say also religiosity, but in the sense of religion versus philosophy.
02:53So this is the thing that actually comes up in the Yoder case, where the court makes a
02:56big distinction between what the Amish were doing and what Henry David Thoreau was doing,
03:02and it said, well, you know, there's special solicitude under the First Amendment for religion,
03:07and the Amish get that, but Thoreau doesn't, even though he felt very strongly about his
03:12opinions.
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