Guest Post: Three Interconnected Errors in the Our Lady Of Guadalupe Oral Arguments

A guest post from Professor James Phillips

|The Volokh Conspiracy |

I am happy to publish this guest post from Professor James Phillips, who will start at Chapman University this fall. James was counsel on an amicus brief in Our Lady Of Guadalupe on behalf of several religious groups.

Monday witnessed oral arguments in two consolidated cases involving the Ministerial Exception: the doctrine independently born of both the Establishment and Free Exercise Clauses that prohibits government interference in the selection, retention, and control of religious organizations ministers. And the back-and-forth between the Justices and the attorneys exposed three interconnected fallacies that appears to be driving much of the conversation in the cases. Laying bear these fallacies shows how one naturally leads to the other and ultimately to a fundamental misunderstanding of the constitutional protections afforded by the Religion Clauses. Correcting these errors points in a different direction than much of the discussion during oral argument—toward a test focused on the views and directives of the religious organizations regarding their "ministers" rather than the minutia of employees' actions.

The "Ministerial" Exception Misnomer

The first error is the very name of the doctrine itself. Legal names have consequences. While a rose by another other name may smell the same, the name we give doctrines or constitutional clauses colors the perception of the underlying law. This is what psychologists label "framing effects." As Donald Kochan has pointed out, imagine how differently we would perceive the "Takings" Clause if we called it "The Keepings Clause"? Or how might our views of the "Free Speech" and "Free Press" clauses be significantly altered if instead we referred to them as the "Censorship Clauses"? Names matter in the law.

Justice Alito hinted at this in the oral argument yesterday, though his concern with the name "Ministerial" Exception stems from its potential discriminatory effect: "I would be more comfortable if we jettisoned the whole term 'ministerial exception' because I do think it's discriminatory . . . ." OA Transcript, at 73:1-4 (Alito, J, speaking). That concern is well-placed since Catholics, Jews, Muslims, and Hindus, for example, do not have "ministers," a term that is Protestant in its origins.

But while well-placed, it does not go far enough. There is a bigger problem with the doctrine's name than discrimination—the constitutional protection afforded by the exception does not flow to the "ministers" themselves, but to the religious organizations that employ them. Thus, the name diverts the constitutional focus from the very actor that is protected to the actor that is not. And as that next section shows, that can have a distorting effect on the doctrine. Rather than the "Ministerial" Exception, the doctrine should be labeled the "Religious Organizations Exception." That would not only avoid the discriminatory nature of the label that Justice Alito worried about, but keep the focus on the object of the constitutional protection.

The Wrong Actor Error

With the misnamed exception focusing on "ministers," it is perhaps not surprising that most of the Justices and attorneys alike repeatedly focused on the actions of ministers to determine whether the constitutional protection was triggered. For instance, Justice Thomas floated the hypothetical of a "chemistry teacher who's a nun who starts class with—chemistry class with the Hail Mary, or the lay teacher who teaches religion but does it in a very straightforward, objective way." OA Transcript, at 31:9-13 (Thomas, J., speaking). In response to a hypothetical situation of a math teacher at a Jewish school, petitioners' counsel responded that whether such was covered by the exception "really depends on how that cashes out in actual practice." OA Transcript, at 19:25-20:4. And respondents' counsel perhaps fell into this trap the most explicitly when he argued that "the real issue in front of the Court" is

not whom the religion considers to be its ministers or even whom the religion considers to be performing its most important religious functions. It's who among employees of religious employers are performing such—such vital duties to the establishment of the church that any qualification requirements or any legal enforcement having to do with their rights or—or qualifications would necessarily run afoul of the Establishment Clause?

OA Transcript, at 89:1-12 (Fisher, Mr., speaking).

But this gets the analysis backwards. Looking only to the actions of an alleged "minister" rather than the views and directives of a religious organization lets the tail wag the constitutional dog. If a "minister" fails in her duties it should not deprive the religious organization of its constitutional protection. Otherwise the law creates a perverse incentive for employees to sabotage the constitutional exception by secularizing their job performance so that the exception is not triggered. Rather, the focus should actually be on "whom the religion considers to be performing its most important religious functions." Justice Gorsuch understood this, as reflected in his questions about deference to religious organizations' own sincerely held religious views as to which of their employees were ministers. See OA Transcript, 45:23-48:14; 90:16-24. Though even that position may not go as far as the Constitution requires.

That is because the Religious Organizations Exception is simply part of the broader constitutional protection frequently called the Church Autonomy Doctrine. That doctrine forbids the government from interfering in the internal affairs of religious organizations. And interfering in such organizations' selection, retention, or control of their ministers is just one manifestation of that constitutional prohibition. In other words, the Exception cannot be construed in a way that violates the broader doctrine of which it is a part.

Thus, for instance, it would violate the Constitution to tell a religious organization who it could or could not hire or fire for an employment position that may seem secular to a judge, but that is nevertheless crucial to that organization fulfilling its religious mission. Take the head of a religious organization's accounting department who is charged with overseeing the collection and use of an entity's sacred tithing funds according to approved religious practices and doctrines. To some that employee may not seem to be carrying out a "religious" function, but the function may still be important to the religious mission of that organization. Though for such functions to qualify, they would seem to need to be ones the religious organization has deemed to involve involving leadership and supervision since it would be hard to view an entry-level accountant as performing a function crucial to a religious mission. If such functions were not covered by the Constitution, then the government could interfere unwittingly in a religious organization's internal workings in a matter to cripple its ability to carry out its religious mission if otherwise neutral and generally applicable employment laws prevented the religious organization from exercising its autonomy in such scenarios. And that would be constitutionally verboten.

Focusing on the perspective of the religious organization rather than the nature of an employee's tasks also avoid the inter-religious discrimination that several of the Justices voiced concerns over, often in the context of the element of a formal title in the analysis. And titles could certainly lead to inter-denominational discrimination when one faith tends to use professional clergy whereas another uses a lay clergy for the exact same function.

But the problem is more than just with titles. For example, Justice Gorsuch voices concerns about formulating a test that results in "discriminating against minority religions that may have views about what's important that are unusual or different from our own." OA Transcript, at 46:7-10, 22-25. When counsel for the government proposed "a generalized functional approach that looks to the types of things that religions usually operate with across the board," id. at 47:25-48:4, Justice Gorsuch noted the problem with such an approach: "Oh, well there—there exactly is the problem, 'usually.' 'Usually.' And that—that discriminates in favor of majority conceptions about religious doctrine and teaching," id. at 48:3-9.

Precisely. A focus on the tasks of an employee rather than the perspective of a religious organization will lead to courts deciding that what some employee is doing is or is not religious. (Which leads to the final error, noted below). And that will discriminate against minority faiths. Imagine some new religion whose adherents believe that certain trees and plants are their deity. Rather than a chapel, temple, synagogue or mosque, they worship in a private park they own. In such a faith, the gardener—the person tasked with physically taking care of the religion's gods—would have enormous religious importance even if pruning and fertilizing are not the types of things we usually view as religious in this country. Focusing on the tasks of the gardener rather than the views and directives to him of the religious organization could lead courts to deprive minority faiths of protections the Constitution guarantees that they desperately need given their outsider status.

The Stopwatch Fallacy

This erroneous focus on the employee's tasks naturally leads to the analytical error of the stopwatch fallacy. Throughout the arguments, Justices and attorneys alike attempted to draw a constitutional line based on how many minutes an employee was engaged in a religious function. For example, respondents' counsel didn't view constitutional protection applying to a religious organization if a teacher only taught religion for "40 minutes a day." OA Transcript, at 75:7, 13-21. Justice Kagan raised a hypothetical about "[a] math teacher who is told to teach something about Judaism for 10 minutes a week." Id. at 18:23-25. And there were discussion about whether being a full-time versus a part-time religion teacher would make a constitutional difference.

Oddly, this focus on how much time an employee devotes to religious functions was already rejected in Hosanna-Tabor, which involved a religious school teacher whose "religious duties consumed only 45 minutes of each workday." 565 U.S. 171, 193 (2012). As the Chief Justice observed for a unanimous Court, "[t]he issue before us . . . is not one that can be resolved by a stopwatch." Id. at 193-94. Yet it's not surprising that so much of the analysis could revolve around counting minutes. Misnaming the doctrine naturally leads to focusing on the wrong actor. And that misplaced focus causes analysis that emphasizes the wrong facts.

There is no doubt that even without these interrelated errors, there will be tough cases and the occasional line-drawing difficulty. But that's just a function of applying the law to the real world, with all its messiness. Yet the by fixing these three errors, the Court can go a long way towards making sure that religious organizations of all stripes receive the protection the Constitution provides.

 

 

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  1. typo alert:

    which . .. I don’t think is what was meant —

    thanks for your writing as always!

  2. “Justice Kagan raised a hypothetical about “[a] math teacher who is told to teach something about Judaism for 10 minutes a week.”

    Interestingly, that was a requirement of *public* high school teachers, circa 1960 — they were required to start the day by “reading an appropriate passage from the Bible.” That would be about two minutes each morning, five days a week, or “10 minutes a week.”

  3. Does Prof. Phillips believe that there’s any situation in which anti-discrimination laws can be applied to religious institutions?

    1. Fair question, but let me turn it on it’s head. Does Noscitur believe that there’s no situation in which the government can’t dictate religious beliefs and practices?

      1. I don’t really have strong feelings about this area of the law, but I generally think Hosanna-Tabor was correctly decided. And I’m not even suggesting that the conclusion that religious entities are entirely exempt from employment regulations is wrong. Just curious if there’s a narrower limiting principle in Prof. Phillips’s theory that is eluding me.

  4. Suppose you have a made-for-litigation religion, like the church of marijuana, that declares all of everyday life a religious activity and everyone a minister, thus exempting everyone who joins it from a great deal of regulation. It would be greatly advantageous for anyone with a business to join such a religion, as they could do with their employees as they will.

    There clearly has to be limits. There has to be some external conception of what constitutes a religious organization, and some external conception of what constitutes a minister, to avoid a free-for-all.

    Here Our Lady of Gaudalupe is accepted as a religious organization. But what about the next case, where an organization not formally organized as a religious organization and not doing anything that appears to be religious by mainstream views declares that in its view it really is?

    If we accept that its completely up to the religion to declare what a minister is, why shouldn’t it be completely up to the religion to declare what a religion is? And, reversing the logic, if we accept that one has to meet some external definition of what a religion is to qualify, why is it analytically different to require that one should have to meet some external definition of what it means fo be a minister?

    1. That is the sticky question in the whole thing. With no path to a answer apparent to me. It seems we will have to take it one case at a time until a consensus emerges.

    2. You have various religions who may have sincere adherents that started from dubiousness premises.

      Pastafarianism started as a satire.

      Scientology was apparent;ly started by a science fiction writer who had previously discussed the possibility of a religion for profit.

      There are many new age religions based on idiosyncratic beliefs.

      Then there’s the whole idea of a secular religion which rejects and spirituality or theology, Atheism and Secular Humanism come to mind, are these belief systems any less deserving of protection that others?

      1. In a saner world, of course not (and Secular Humanism, which doesn’t find it necessary to exalt superstition at the expense of evidence and reason, is *more* deserving of, if not protection, at least respect).

    3. ReaderY, if I were (what is traditionally known as) religious, I would studiously avoid or actively discourage discussion along these lines.

    4. Seems to me that all you’ve done is pointed out frailties in the regulatory system.

  5. The whole ministerial exception as argued for here is bogus – nothing but the church looking for a privilege that has nothing to do with its religious practices.

    It’s perfectly understandable that a church should have the right to hire, for many functions, only those who adhere to its faith. But there is nothing here to suggest that these two women were unqualified on that basis.

    One of the women was fired because she had breast cancer – nice going, Christians – the other apparently because of her age.

    WTF does either one of those things have to do with religion.

    1. “ministerial exception as argued for here is bogus”

      Blackmans article was discussing an important point of law, not the overall metrits of the case.

      1. And my comment was about the appropriate scope of the ministerial exception, which is far too broad, despite claims that it is too narrow.

        Suppose a Catholic school seeks to hire a teacher of religious studies. It is perfectly reasonable to say that the school is free to reject applicants who are not practicing Catholics. But I see no case whatsoever, under employment discrimination law, for arguing that it should be allowed to discriminate based on race – to refuse to hire an otherwise fully qualified candidate who is black. That is in no way interfering with the practice of religion.

        1. Suppose the church had doctrine based on race? Would it them be free not to hire people who conflicted with that doctrine?

          Think of Mormons who for a long time banned blacks from their priesthood or black nationalists who are hostile to whites?

          1. Tough question, but is it realistic?

            If a church has some sort of belief like that are blacks going to rush to apply to the seminary?

            My own opinion is that they should have a narrow exception for actual priests, but not for other employees, including teachers. Maybe it depends on the reason for the rule. If it’s, say, a belief that blacks can’t, for some reason, offer communion or perform some other priestly function, then OK, but it doesn’t apply if that’s not part of the job.

            IOW, I think exceptions ought to be specific and narrow, not a broad license to discriminate.

            1. So in your view the Catholic Church must have married priests (marital status discrimination)? Female priests (gender discrimination)? Openly gay priests (sexual orientation discrimination)?

              The ministerial exception prevents this. A host of conservative religions have doctrinal requirements that conflict wirh discrimination laws. It’s well settled that the state can’t tell a church how to pick ministers.

              The only question here is what a “minister” is for purposes of this exception.

              1. Isn’t that the exact opposite of what I said?

                “they should have a narrow exception for actual priests.”

                1. This still is a handwaving away of the difficult problem of line drawing, like the OP notes that not all religions have such narrowly defined clergy. Paganism, for example, is not hierarchical.

                  1. I don’t disagree that it’s a hard problem. That doesn’t mean we should ignore it and adopt a bad solution.

                    OTOH, I don’t think the issue is whether the religion is hierarchical or not.

                    1. Thanks for being open minded. In our thought experiments, I worry that your proposed solution is worse than the problem, such as it is.

              2. It’s well settled that the state can’t tell a church how to pick ministers.

                The only question here is what a “minister” is for purposes of this exception.

                And my opinion is that it should be a very narrow definition. Let’s complicate it a bit by introducing a “sub-ministerial” category. This would cover someone like the teacher I described. Those in this category don’t perform any ritual functions, like a priest, but do have religion-related duties, like teaching church doctrine.

                My opinion is that the church can require those in this category to be orthodox believers, but should not be exempt from anti-discrimination laws with respect to other matters.

                The exemption, IOW, should be limited to actual religious matters. In neither of these cases did the woman discharged do anything to suggest she should be disqualified on religious grounds.

                It’s important to remember that a broad definition, especially one that says a minister is who the church says is a minister, gives the church an awful lot of power to strip employees of normal protections.

                1. So if the employee is openly gay, for instance, or cohabiting without being married, can the church conclude that they are not, in fact, an orthodox believer? Or do you feel the government should be able to second-guess that judgment?

                  1. They could, I suppose, though I would expect a consistent approach to sinners of all stripes.

                    It does seem a bit odd, for example, to declare gays personae non gratae as teachers while tolerating repeat child molesters as priests.

                    And of course lust is not the only deadly sin.

                  2. According to Christian doctrine, these are sins. You may be forgiven for them, but then you’re supposed to _stop_. So, can a Christian church refuse to employ anyone engaged in on-going sinning?

                    That’s a trick question. We’re all sinners. If all who engaged repetitively in sins were excluded (including lying when you assure a lady entering the church that her hat is beautiful), then there would be no church. The only person who could work for the church is Jesus Christ himself, and he’s not available at present.

                    So the question is always about why some sins are considered much worse than others, and how such value judgments may apply to hiring decisions.

            2. Before 1979 or so, blacks could not be priests in the LDS Church. So the issue is a little more plausible than you think.

              1. I know that.

                The plausibility issue is the question of whether any blacks were interested in becoming priests.

                I realize that’s circular, in that the policy would certainly discourage black applicants, but it was kind of a throwaway part of the comment anyway.

            3. >If a church has some sort of belief like that are blacks going to rush to apply to the seminary?

              If we look at the Masterpiece litigation, yes, that’s exactly what would happen. There is a fairly large segment of the population that just loves agitating. It doesn’t hurt (I’d assume) that there are also fairly substantial financial incentives.

              1. Except that applying to a seminary is completely different than trying to order a wedding cake.

                First, I assume the applicant has a lot of work to do – writing essays, providing transcripts, maybe being interviewed, etc. It’s not just walking in off the street.

                Second, insincerity is disqualifying, and probably easily detected. I mean, you ask, “Are you a devout Mormon?” “Yes.” “What church do you attend?” “Umm.”

                Sure, you might find one person who can press a reasonable claim, but the idea that there will be a rush is not plausible.

        2. Title VII permits the Church to discriminate on the basis of religion in any employee position including janitor. What is at stake in this case is whether the Church can discriminate on the basis of every other protected class.

    2. One of the women was fired because she had breast cancer – nice going, Christians – the other apparently because of her age.

      No, Bernard. Those are the allegations, not the facts.

      But your framing is backwards in such a way that you are exactly missing the point. It’s not that the religion teaches “People who have cancer are anathema,” such that requiring a church to hire them violates that specific doctrine. It’s that you’re telling the church, “You must employ so-and-so to fulfill this religious function.” That’s what the government can’t do, any more than it can tell you who you must marry. The government is not competent to decide who’s qualified for such a role.

      1. David,

        No, Bernard. Those are the allegations, not the facts.

        Yes, but in the case of Biel – the cancer victim – it seems fairly clear since she was told that the need for time off for chemotherapy was at least part of the reason. In the other case I suppose there is room for argument, but there also the church’s position seems to be that it doesn’t matter – age discrimination is allowed.

        It’s that you’re telling the church, “You must employ so-and-so to fulfill this religious function.”

        Well, not quite. What I’m telling the church, or hat I’d like to tell them is that it is exempt from non-discrimination law only to the extent that its practices reasonably require that it discriminate on some basis not allowed to secular employers. It can’t turn down an applicant because of race (leaving aside the Mormon issue raised above).

        That’s what the government can’t do, any more than it can tell you who you must marry. The government is not competent to decide who’s qualified for such a role.

        But that applies to the same degree in the secular realm a well. The government is not competent to tell me who I should hire as a software developer either. And it doesn’t presume to do so. What it does tell me is that certain criteria are not allowed.

        So I think the rules should be similar for religious organizations, with the exception that discrimination based on religious belief, either the employee’s or the organization’s, should be allowed, because adherence to and understanding of a set of beliefs is an important qualification for some of its jobs, and because we cannot force the organization to violate its own faith.

        My point is this. If it’s OK to tell a secular private school it can’t discriminate against black applicants when hiring teachers, it makes no sense to me to say that a Catholic parochial school can discriminate against black applicants, whether the job is ministerial or not. Of course it can discriminate against Jews or Baptists or atheists, because there are good reasons for that.

        Now, I understand that there are those who oppose non-discrimination statutes in general, but that’s a different question.

        1. The government is not competent to tell me who I should hire as a software developer either.

          True, but deciding who ought to be a software developer, unlike who ought to be a minister, does not implicate the Establishment Clause.

          1. True, but deciding who ought to be a software developer, unlike who ought to be a minister, does not implicate the Establishment Clause.

            Deciding the qualifications for a minister is indeed the church’s business. But it seems to me that, once those qualifications are met, it does not implicate the Establishment Clause to say that extraneous characteristics of some types may not be considered.

            Similarly, the notion of what jobs count as ministerial needs to be open to review outside the church, simply because otherwise churches – some of them – will take unreasonable advantage of their privileges.

            1. But it seems to me that, once those qualifications are met, it does not implicate the Establishment Clause to say that extraneous characteristics of some types may not be considered.

              If the Church says you have to be white, then race isn’t an extraneous characteristic. I do however agree what jobs count as ministerial should be open to judicial review.

        2. in the case of Biel – the cancer victim – it seems fairly clear since she was told that the need for time off for chemotherapy was at least part of the reason.

          If you believe her. That is not the finding of any court. (The school certainly doesn’t admit that; they give a different reason.)

          But that applies to the same degree in the secular realm a well. The government is not competent to tell me who I should hire as a software developer either. And it doesn’t presume to do so. What it does tell me is that certain criteria are not allowed.

          It does not apply to the same degree in the secular realm. As a factual matter, it’s true that the government isn’t very good at deciding who makes a good programmer. But the constitution doesn’t say that governments can’t make decisions about software programming, good or bad. (As a libertarian I might object, but I’m talking law here.) It does say that governments can’t make decisions about the operation of religious institutions.

          I deliberately used the spouse analogy because I thought it best captured the inappropriateness of the government’s action in this context. We would not let the government say, “You can choose your spouse on any ground you want other than a discriminatory one. We’ll let you use sex as a determining factor, because that’s a BFOQ, but race is irrelevant.” We would not let the government inquire into whether your reason for turning down a particular person was legitimate or whether it was just a pretext for racial discrimination. The entire endeavor would be misguided. It’s just not a proper subject of inquiry. (Yes, I know there’s no such law – but it would not be proper if there were.)

          Similarly, the government can’t decide whether someone is otherwise qualified to be a minister. It can’t tell a church, “Look, John is completely qualified to save your parishioners souls other than him being black, so therefore you must make him your priest.” It can’t make the first statement, and it can’t make the second one.

          And that’s true even if the church admitted — which of course it would presumably never do — “Yes, we didn’t hire him because he was black.” It would still be improper for the government to say, “Okay, fine. Then you are hereby ordered to make John your church’s minister.” Picking who will minister to a congregation is a core function of a church; it would violate both the establishment clause and the free exercise clause for the government to do that.

  6. I had a hard time focusing on this as a serious article when it started with “Laying bear these fallacies…”

    1. You’re obviously an ursinophobe.

  7. Otherwise the law creates a perverse incentive for employees to sabotage the constitutional exception by secularizing their job performance so that the exception is not triggered.

    While I can understand why, as an advocate for religious organizations, one would want to avoid describing employees in a way that makes them seem sympathetic, this kind of weasel-language undermines my interest in engaging the argument in good faith. We are not, after all, talking about a gay Catholic priest, trying to “secularize” his position so as to protect himself from being fired by the Church for breaking his vow of celibacy. We are talking about people who just wanted to be entitled to the kinds of protections against unfair discrimination and retaliation that they would have enjoyed, had they worked for a secular employer.

    The attempt to shift the focus from “ministers” to “religious organizations” ignores the constitutional foundation for the exception, in the first place. We do not have a “free religious organization” clause. We have a Free Exercise Clause and an Establishment Clause. The principle of “church autonomy” (and it’s interesting to me that you embrace that terminology when half your argument turns on whether “minister” is a discriminatory or too-narrow term) is rooted in the fact that people are not really free to exercise their religion if the government retains the ability to interfere in how religious doctrine is developed and taught. Interfering in the internal governance of a religious organization does not really run afoul of important FEC or EC values unless it has the effect of interfering with the free exercise of religion. Hence, the whole focus on “ministers.”

    You can quibble with the terminology and fret over the functional analysis, but dispensing with these lines means detaching the “ministerial exception” from its constitutional foundation. You turn the FEC and EC into a kind of “freedom of the church” clause.

    In addition, even if we were to accept that the ministerial exception flirts with incoherence or inconsistency, I think there’s a good reason for retaining it in some form. It would not be unique in Supreme Court jurisprudence, as a concept that is intended to strike a balance between competing political or prudential concerns and ends up being slightly awkward in its own right. That is, a broad exemption from secular laws otherwise applicable to the internal workings of the church might go beyond the pale of what is politically acceptable today; declaring such a broad exemption would raise broad hackles in American society. Declaring a more limited exception, applicable to so-called “ministerial” roles, provides some protection for the underlying constitutional concerns without risking that broader problem. That might be why it was developed, in the first place, and a Supreme Court with an eye to its legacy today would be wise to follow their predecessors’ prudent example.

    Whether the Roberts Court will actually do so, I won’t venture to predict.

  8. If a “minister” fails in her duties it should not deprive the religious organization of its constitutional protection.

    I don’t understand this issue. If an employee fails in her duties, non-discrimination provisions do not protect her from being fired, minister or not.

    Otherwise the law creates a perverse incentive for employees to sabotage the constitutional exception by secularizing their job performance so that the exception is not triggered.

    Of course permitting religious organizations to define who is a minister creates a perverse incentive for them to declare every employee a minister, so as to dodge non-discrimination laws.

  9. One example of someone engaged in a prosaic non-“ministerial” function with deep religious meaning might be a cook at a facility operated by a faith that has complex dietary rules such as kosher or halal.

    The person doing that job would be unlikely to be considered “ministerial” under the current exception, but for adherents to that faith it would be religiously meaningful to have a co-religionist responsible for ensuring that dietary rules were being followed.

    1. Maybe, but food processing businesses that seek to label their products as kosher do not need to hire only Jews. They need “only” follow specified practices and be inspected and certified by appropriate rabbinical authorities.

  10. The evolving (devolving? accreting? congealing?) law in this area strikes me as an increasingly convoluted, tortured poster child for the concept of motivated reasoning.

    (Apologies in advance for the horribly mixed metaphors:-)

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