Podcast: Football, Freedom, and the First Amendment

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On this episode, we explore the free exercise clause and the future of religious exemptions. Last week the Supreme Court denied certiorari in a case called Kennedy versus Bremerton School District and that was a case brought by Joseph Kennedy who's a high school football coach who was fired when he refused to stop praying at the 50 yard line after games. Justice Samuel Alito wrote a really interesting concurring opinion in the cert denial in which he suggested he and other justices might be open to overturning a case called Employment Division versus Smith which will explore in detail on this podcast and joining us to cast light on this crucially important question of the future of religious exemptions under the free exercise clause are two of America's leading experts in the Constitution and the First Amendment religion Clauses. Stephanie Barclay is associate professor at BYU law school where she teaches the First Amendment and she is of counsel at the Becket fund, an organization dedicated to defending the free exercise religion, she's litigated many free exercise cases at the trial and appellate level. Stephanie.Thank you so much for joining.

Stephanie Barclay: [00:01:36] Thanks so much for having me Jeff.

And Richard Katskee is the legal director at Americans United for the separation of church and state where he litigates first amendment Establishment Clause free exercise clause and Free Speech cases. He also teaches at the American University Washington College of Law, and he wrote an amicus brief on behalf of Bremerton in the ninth  circuit. Richard It's wonderful to have you.

Richard Katskee: [00:01:59] Really nice to be here Jeff. Thank you so much.

Rosen: [00:02:02] Wonderful. Let us begin with the Kennedy and Bremerton case Stephanie why don't you begin by telling us the facts of this case? Why was Joseph Kennedy praying on the 50-yard line? What did he think he was trying to accomplish and what did the lower court said when it required him to stop praying?

Barclay: [00:02:25] Yeah, so this is a case where the coach after the game was over would pray silently. 50-yard line and and what happened was the superintendent essentially gave him a letter that was threatening him to lose his position. If you continue to engage in his religious practices and the letter is a little bit confusing as to why but the coach did again say a prayer after the game silently on the 50-yard line and and so he ultimately lost his job because he was engaging in his own as he described his private religious practice.

Rosen: [00:03:04] Richard anything to add to the facts of the case. I gather he may have prayed in different places at different times and what light can you cast on his conception of his prayer and what the lower court said?

Katskee: [00:03:16] Sure. So the the history of what was going on here matters a whole lot. For something like eight years Kennedy who is an assistant football coach had held prayers on the on the field before games and had given little religious homilies religious motivational speeches to the students in a prayer circle after the games on the 50-yard line when the school district told him that he was supposed to stop that he at first did and then he decided that he wasn't going to do that anymore. So he went out onto the 50-yard line after the game. He was surrounded by students who are all participating with him and led prayers. And so the school school district said look, kept telling him look we respect your religious practice. You can pray you- we can accommodate your religion in all different sorts of ways and really tried to bend over backwards to do that. But he insisted that the only the only thing acceptable to him was to be on the 50-yard line immediately after the game in the in the closing game ceremonies when he's surrounded by the students. And in fact, if you look at the brief in opposition filed by the school district the the opposition to the cert petition, you'll see at the back of photo that shows that what he was doing is nothing like praying by himself. This is an individual religious practice. This was this was showing the students what mattered to him so that they would go along and they did and that was what the school district said he couldn't do. It didn't say couldn't pray. It didn't say he couldn't practice his faith. It didn't say that religion was banned from the schools. It said that he couldn't be doing something that has the effect of coercing students to participate and and when the school district was taken to court the lower Court's all said that the school district gets to ensure that its employees are watching the kids monitoring the kids appropriately and and abiding by the law.

Rosen: [00:05:25] Stephanie Justice Alito focused on how relevant the backstory was. Justice Alito said in his opinion instead of attempting to pinpoint what the petitioner was likely to be able to prove regarding the reason or reasons for his loss of employment the ninth circuit recounted all of petitioners prayer related activities over the course of several years and Justice Alito added that the court should have decided what the position was likely to be able to show regarding the reason or reasons for his loss of employment. What was Justice Alito getting at and how is this relevant to the Constitutional issue?

Barclay: [00:06:00] Yeah, what Justice Alito is honing in on here is that there were sort of two different bases that were given by the school as far as why the coach lost his job one was that he was essentially neglecting his responsibility to take care of the players and to supervise them after the game and the other was that they found his religious expression and acceptable and the problem Justice Alito said for the Supreme Court to take this case is they really needed to know which one was it? Because if the reason that he lost his job had more to do a dereliction of Duty then that doesn't raise the Constitutional questions in the same way, but if it would have been clearer that the primary basis for him losing his job was based on his engaging in that religious expression then Justice Alito said that would have raised much Graver concerns about his first amendment rights at issue and Justice Alito said if I was the Appellate Court, and I had to had mandatory jurisdiction over this case, I would vacate what the district court did and send us back until the court go be clearer and make findings about which was the actual basis. But since I'm not that's not what the purpose is of the Supreme  Court, we only take very limited proportion of cases. This just isn't a good vehicle for us to decide this question, but he did go on to express some real concerns about the way the ninth circuit just had decided the case and I'm happy to address those at some point too.

Rosen: [00:07:37] As you say justice Alito did suggest that if the likely reason was simply kind of these neglected his duties his free speech claim would fail. On the other hand the claim would have greater weight If Kennedy could have established he wasn't really on duty or that he was on duty only in the sense of his workday had not ended and one of the cases that was Central to that second question Is called the Garcetti case in which the Supreme Court held that when public employees are speaking in a public capacity their speech is not protected and Justice Alito said that according to the ninth circuit's reading of this Garcetti case, which is from 2006 Public School teachers and coaches can be fired if they engage in any expression the school doesn't like when they're on duty and the ninth circuit thinks the teachers and coaches are always on duty. Can you Richard give us a sense of what Garcetti held and how the lower court applied it in this case and whether you think it correctly applied Garcetti?

Katskee: [00:08:39] So the Garcetti decision involved an assistant district attorney in Los Angeles who wrote a memo to the district attorney criticizing how the office was was applying the law. He said hey, we're doing something wrong here. And we should fix it. He was fired for that conduct; the case went up to the Supreme Court and the Supreme Court held that when you are engaged in the performance of your job duties you as a Public Employee don't have free speech rights. Not that you don't have free speech rights at all, but that when you are employed to perform a job as a government employee, you're supposed to do your job. And if you're not doing it, then you can be let go .Now how that applies to this situation is is kind of interesting. The courts of appeals in a whole string of cases have looked at Garcetti in the context of schools just like they did here and what they said is that you're supposed to look to see whether a teacher a coach Is is performing the duties of the job, is really is really acting as a teacher or a coach and if so the school gets to regulate the conduct of the teacher. The reason for that is if you think about it, actually there are there are cases from the third included from the third circuit when Justice Alito was on that court and wrote a decision saying that saying that the institution decides what's taught. So that if for instance you have a math teacher who decides that he really wants to teach poetry instead of math, the school district gets to say no you have to teach math. And if you if you don't want to do that, then you can't be employed here as a math teacher. What went on here was the ninth circuit looked at the looked at the school's regulation of coach Kennedy's conduct and said look you have you have to you have to do the job of being a coach and a school teacher which means that when you are in the presence of students, you're monitoring and supervising students. They're looking to you as a role model and you're in the middle of this of this special special circumstance on the 50-yard line immediately after the game when the kids are all supposed to shake hands with the other team and close down the Ceremonies for the game. You're on the field only because you can, because you're the coach, that's the only reason you can be there and you're in charge of the kids and they see that you're having this prayer on the 50-yard line that you've done for many years. And so they know that it's what you want as the coach and you should go along. Coaches get to control your game time, they get to control whether you ride the bench. And the and the and the court was well aware of that problem. I also if I could wanted to say one other thing about Justice- go back to what Justice Alito said about the ninth circuit's opinion because I think respectfully he misread that opinion. The court goes through and recounts all of coach Kennedy's prayers over time not to say that we're holding him responsible for all those things but to say two things: one is we're going to look at what he was actually doing which was this this practice of having prayers on the 50-yard line. And the other was when it pointed to the fact that he had prayers silently in the stands during the time when he was on administrative leave the court was saying the school district didn't have any problem with that, allowed him to do that didn't interfere, didn't try to punish him for it, didn't tell him anything about that and that that was the school yet again respecting his his beliefs. So the school was understanding the difference between on-duty conduct by a coach supervising kids and conduct that isn't in that same context that the ninth circuit took that seriously and I think that's what Garcetti is supposed to be all about.

Rosen: [00:12:57] So Stephanie Justice Alito did suggest that the ninth circuit had read Garcetti too broadly. He said under its interpretation of Garcetti If teachers are visible to the students while eating lunch, they can be ordered not to engage in any demonstrative conduct of a religious nature a school could regulate what teachers do during a period when they're not teaching by preventing them from reading things that could be spotted by students. The court has never read Garcetti to go that far and if the ninth circuit continues to apply its interpretation of Garcetti and future cases involving Public School teachers or coaches review by this court may be appropriate. Richard says that on the facts that's wrong because here the coach was allowed to pray in the stands, but just not on the 50-yard line, so you know, more thoughts on the facts. And also do you believe the ninth circuit read Garcetti too broadly and how do you think it is correctly read?

Barclay: [00:13:47] I do think that the ninth circuit is reading Garcetti too broadly and one thing that the coaches attorneys point out in the reply brief is this isn't the first time that the ninth circuit has red Garcetti and this way so it's not even as though this. The only case where they've done that they have this categorical rule that they have used. That's really expanding Garcetti to essentially say that any time you have a Public Employee whenever they're on duty at all times from the moment. They report to work for the moment they depart and if their teacher then if they're within eyesight of students then essentially everything they do is essentially something that's a school can say. That they're on the hook for and that the school can control and that's a very broad Rule and and one that was I think justifiably concerning for a number of justices on the Supreme Court and this isn't the only situation where the government has more control than normal over message because it is it's paying someone to do something here. We're talking about it. In the context of employment, but there's also a line of cases that talk about the same issue in the context of the government buying goods or services and and the Supreme Court has said in both contexts that with if the government is defining the conditions of either the job or the government. So broadly that it's essentially trying to reach beyond what it's actually paying for. What's actually within the job duties and is starting to try and control private behavior of that individual then then we've got a real problem and and Justice Alito says. If the ninth circuit continues to apply Garcetti in this way in future cases, involving Public School teachers or coaches then review by this court maybe appropriate and I think you can understand why because if the rule of the ninth circuit really became the rule more broadly and if it continued to apply it this way this means that. A teacher eating lunch at school if they said prayer on their lunch. They could be in trouble or if a teacher wanted to read the Bible at lunch in school, then then they could lose their job and I don't think that that's it all what Garcetti was trying to get at. I think would be a really problematic rule where instead of offering the sort of protections that our constitution anticipates for both religion and speech we would be providing special penalties for religious speech for those sorts of employees.

Rosen: [00:16:23] Richard one last beat on the free speech claim and Garcetti. Are you concerned that the Supreme Court might read Garcetti too narrowly to allow for public employees like teachers to engage in religious expression during school hours in ways that you think might raise constitutional issues or not?

Katskee: [00:16:44] So the important thing about about that question the central thing about that question is to get to what Garcetti is supposed to is supposed to be doing and I think that the ninth circuit was I think it is wrong to say that the ninth circuit was imposing an absolute broad rule. The court was really careful to go through and Define define what Kennedy's job duties were how he was performing them and how. The prayers on the 50-yard line fit into that and so by the way was the school district which really did take many make many many many many attempts to accommodate Kennedy's religious practice that he refused and refused and refused because he said the only place I'm willing to do. This is on the 50-yard line immediately after the games surrounded by the students what get what I'm concerned about is is is not about. The per se but about the consideration that public school teachers and public employees have enormous coercive Force at their fingertips when a teacher tells you what you're supposed to do or even or even just settle the makes makes clear what he or she thinks is important the students know that they have to go along to get along that was what was happening here. So when the school district took seriously that when coach Kennedy is acting as a coach when he supervising students he has to be respectful of the religious beliefs and religious practices of all those students and all those families. It was it was not just dealing with Garcetti, but it was also respecting the Funt fundamental religious freedom rights of students and families. And when you're a Public Employee, it is your job to do that. You don't get to say I'm going to act in ways that impose my faith on my students because I think it's important or I think it's valuable or it matters to me. So it should matter to them that's up to those students and their families and their own houses of worship.

Rosen: [00:18:57] So Stephanie, Richard raises a whole series of new questions, which is has the Supreme Court defined coercion too broadly or narrowly? Justice Anthony Kennedy who recently retired favored a kind of coercion test about whether or not people were coerced by their teachers into praying, other's favor a reasonable Observer test. We talked on this podcast about the infamous lemon test which Justice Scalia has described as a ghoul that keeps rising from the grave at the end of a horror movie. So to what degree is the question Richard has put on the table about how to define constitutional coercion relevant to the Future disposition of these cases?

Barclay: [00:19:39] I think it's a hugely important question and one that the Supreme Court is actually likely to take up and another case pending before the court right now. And that is an American Legion case. It's dealing with Bladensburg peace cross and we can get into the facts a little bit of that if you want Jeff, but the bottom line is It's a It's a cross that was originally erected by private groups eventually for safety reasons the government acquired that property and so now there's a war memorial on government property and a big question that case is going to raise how much that coercive test should be relevant or whether lemon is still good law or not. There are certainly Scholars like Professor Michael McConnell who have pointed out that if you look at sort of the historical. Impetus of The Establishment Clause there were a number of different characteristics of what an established church looked like and the type of coercion the government exercised with respect to an established church involves things like government actually sending people to jail or finding them or engaging another really heavy-handed sorts of government coercion if people didn't. Attend worship services or comply with or participate in different things that the established church was doing and just as Thomas has pointed out before in his opinion in town of Greece that other sorts of things like peer pressure. Someone merely seeing someone doing a religious thing in a public place far away Way short of the type of coercive activity that. That really gave rise to the Founders' concerns that led them to establish which to create The Establishment Clause and I do think that we're probably going to see in the near future the lemon test. They some revision from the Supreme Court because it's offered very little guidance to the lower courts. And as you know, the lemon test has three different prongs, but they've been applied in very different ways and there's really no historical basis for that test and we could very likely see the Supreme Court move in a direction where they're requiring. More of the type of coercion to be involved in a case for there to be a real Establishment Clause violation that that gave rise to those sorts of concerns to begin with historically.

Rosen: [00:22:03] Thank you so much for that. Well, we did do a preview podcast on the Bladensburg case and I'm sure we'll revisit it and would be great to have you both back to talk about it. But let me just ask you Richard and then we'll turn to the Smith case after this the court revisits the Lemon test in the Bladensburg cross case, what test for a coercion do you think is most appropriate Under The Establishment Clause?

Barclay: [00:22:31] Well, so let me say a couple of things back up a little bit. The Establishment Clause definitely prohibits religious coercion, but it does in has to do more than that as well and the Supreme Court has recognized that for 75 years at least the the court made clear from the 1950s on that. The free exercise clause requires a show and making a claim under the free exercise clause requires a showing of coercion. The government is compelling you to to go to a church that isn't yours to practice a faith or not practice a faith against the dictates of your conscience and and The Establishment Clause does not require coercion coercion is sufficient, but not necessary to be an Establishment Clause violation. So what should go into any test of The Establishment Clause, it should get to the fundamental principles that The Establishment Clause that the religion Clauses together were designed to protect against. This gets back actually to the to the Theology of Roger Williams the Baptist Theologian who founded Rhode Island who recognized that religious belief is valid and true only if you come to an entirely on your own When government coerce his religious belief or even just gives the slightest nod or a little bit of favoritism or a little bit of goodies to One Faith over another when it shows any kind of favoritism. What that does is to interfere with individuals exercise of conscience and also distorts and degrades religion by by encouraging clergy and houses of worship and denominations to distort their own Doctrine to try to get that government favoritism the Klaus is about ensuring that that religion is protected from governmental interference and interference can come even when it's done in a way that seems salutary that seems minimal. So any test of The Establishment Clause really has to take seriously the idea that governmental favoritism your faith is better than my faith that that those are never countenance when you put up a cross and say it's to honor- and I won't delve into because I know I know and really enjoyed your previous podcast on it- but when the government puts up a giant cross and says, this is how we honor all veterans and War dead what it's really saying whether it means to or not is the people who count our Christian war did Christian veterans and those who aren't Christian aren't one of us. They aren't our felt there aren't are equal citizens. They don't count. Their sacrifices don't matter in the same way The Establishment Clause is designed to ensure that government never sends that message. So any test that the court puts in place has to respect that fundamental principle. That's how we defend religious liberty for everyone.

Rosen: [00:25:43] So dear We the People listeners, we're about halfway through the podcast and we've already touched on two Clauses of the First Amendment. We began with the Free Speech clause and talked about the scope of public employees Free Speech rights under the Garcetti case, then we've talked about The Establishment Clause and the scope of the ability not to be coerced by government action in cases, including the lemon case and now we turn to the free exercise clause which was the original thing that I promised at the beginning of this podcast. In his concurring opinion Justice Alito had a really significant sentence. He said Employment Division versus Department of Human Resources of Oregon versus Smith 1990 case the court drastically cut back on the protection provided by the free exercise clause and he says in this case, we've not been asked to revisit those decisions. Stephanie what did Smith say and why has it become contested among both conservative justices like justice Alito and even liberal justices like Justice Breyer and what should we make of that very suggestive sentence by Justice Alito about revisiting smith?

Barclay: [00:26:57] Yeah, this is the key really interesting question before I tell you about Smith. I'm just going to give a little bit of a background about some of the Supreme Court cases leading up to Smith in the early stages of our nation's history right before World War Two. I should say the early stages of developing sort of our constitutional framework for strict scrutiny and things like that. There was a case called Gobidas where the Supreme Court was asked whether or not Jehovah Witness children who had conscientious objections to saluting the flag because they view that as a form of idolatry. Could those children? Receive as some sort of an exemption and could they be protected based on both their free speech rights and their religious exercise rights or could the government expel them from school and the court in that case and an opinion written by Justice Frankfurter said we can't give exemptions. And so we expel them because when there's a rule of law, we have to uphold the rule of law and that's the way it is on both free speech and religious exercise grounds. That was a deeply unpopular decision Professor Noah. Woman at Harvard has talked about how after. That decision was authored it was as though open season was declared on Jehovah Witnesses in our country. And there was a lot of persecution of that minority group just a few years later in the Supreme Court's very famous case of Barnett the court overruled itself and said we got it wrong. We should have protected that that group we should have said that they had the right not for not to participate in this particular government practice, even if the other children generally were doing so and that's still good. In the freedom of speech context and that was also a guiding principle on the religious exercise context and and both of those areas of law continued to develop and we had clear framework for strict scrutiny and for protecting rights and for carving out sometimes protections from otherwise generally applicable laws if they were really burdening someone's First Amendment, right? Until we got to Employment Division versus Smith. And in that case in 1990. It was a case written by Justice Scalia. He said. He decided to go by this which is still bad law for freedom of speech but is now resurrected in the religious exercise realm which is sort of bizarre and a bit of a double standard and Justice Scalia said we can't give exemptions from generally applicable laws if we do so we will be recording Anarchy and so in that case and Employment Division versus Smith, there was a Native American plaintiff who. Was essentially requesting an exemption from laws regarding regarding employment benefits so that he could use peyote as part of his sacred religious practices and Justice Scalia said that he was entitled to no protection because he was seeking an exemption from a generally applicable law. And the court has later gone on to clarify. But Smith still does mean that the government can't Target or discriminate against religious groups, but it's important to keep in mind that we have very different protection under freedom of speech protections, even if a law is generally applicable if Allah burdens someone's Free Speech rights, we still give heightened scrutiny to which means that the court looks really closely at what the government justifications are for why it is burdening someone's First Amendment rights. And what is really interesting about this line by Justice Alito in the his Kennedy concurrence. First of all is that it's joined by Justice Thomas just as Gorsuch and Justice Kavanaugh. And so we know that at least four justices are suggesting where at least they have put out this invitation that there's some interest in visiting their decision in Employment Division V Smith. And it's also interesting that the language they're talking about drastically cutting back on protections under free exercise. I think is accurate that what the court did there was it card back protections for free exercise in a way that we don't see that same sort of limited protection for other sorts of fundamental constitutional rights, and I think that the court is honing in on the disparity and protection that its jurisprudence right now offers to those important rights.

Rosen: [00:31:17] Richard, please give us your sense of the history and current status of Smith. What came before it? What did Justice Scalia Holden Smith? Why have both liberals and conservatives both praised it and criticized it and what's the significance of four justices suggesting they might be willing to overrule it?

Katskee: [00:31:37] The the basic holding in Smith is that is that when a law is the technical terms are neutral and generally applicable which judge then the fact that they that the law happens to burden. People based on their faith more heavily or at all is not something that's legally constitutionally cognizable what that means is when the law doesn't single out any religion for favor or disfavor and just happens to have some effects on people because because of their beliefs that the law still applies the the sort of the easiest example that can sound like. Caricature but isn't it sort of gets to the heart of things is we have laws against murder if you have a faith that in which if you had a faith in which human sacrifice was a Sacrament then then you wouldn't get to say well I get out from the murder law because I have a religious belief that I have to I have to engage in this religious practice. But look when Smith was decided we an Americans United for separation of church and state immediately and roundly criticized it most most most people in most groups across the the religious and and civil rights and political Spectrum did and we were part of the Coalition that work to get a statutory fixed past in its wake and that's what ended up producing the religious freedom restoration act right now we're working for passage of the Do no harm act which restores drift. Or would restore referred to its original purpose and intent that we're all still struggling with Smith is no surprise because it's a rule that does have harsh consequences whether you as you said Jeff whether you're on the right or on the left, there's going to be some application of it that you don't like often that's actually a virtue of a legal rule. It's neutral. It's impartial you it's not one group as always the winner in one group is always the loser but there are some there are some problems here. And it's not at all to say that we can't do can't do better right now is an interesting time to consider doing that because we're living in a moment when the fundamental principles of religious liberty are being distorted dangerously the language of religious Liberties being co-opted every day to defend discrimination. It goes like this. I shouldn't have to comply with the any discrimination laws when I'm performing my government job or running a publicly-funded social service program or operating a shop or restaurant or hotel. Open to the public my religious beliefs. Give me a free pass to discriminate to discriminate on the basis of religion or race or sex or sexual orientation because because I have particular beliefs and I should be able to operate in my government job in accordance with those beliefs. In 1968 and the Piggie Park case the Supreme Court heard that very argument from a restaurant owner who was challenging a portion of the federal civil rights act that made it unlawful for restaurants to refuse to serve African-Americans. The restaurant owner argued that the law was invalid because it contravenes the will of God. That was his language now Supreme Court said that that argument was patently frivolous. Not because the religious restaurant owners religious beliefs weren't genuine and not because he wasn't entitled to those beliefs. But because your religious beliefs don't give you a free pass to violate this at least this one category of very special laws anti-discrimination laws. And why because your religious beliefs are meant to be a protection for you, but not the right to hurt other people by trying to force them or trying to use the Law to force them to live in accordance with your beliefs. Not with the free exercise of religion is it's not what it is or has ever been so so in the possibility of revisiting what the free exercise clause means it's important to remember that it's about the right to believe or not to worship or not according to the dictates of your individual conference a conscience rather, but that. But that it is also the right of others to live in accordance with their religious beliefs and that their beliefs and their other fundamental rights can't be can't be subjugated to your to your religion. You don't get to use the government to say the heck with their religious beliefs or their practices or their fundamental rights. I get to impose the cost and harms of my belief on others. So whatever the court may do with the free exercise clause that's the principle that has to be respected. Certainly does an imperfect job of it and trying to figure out a better way is is a useful Endeavor, but it's got to be done with that fundamental understanding and that's actually part of what Justice Scalia was again imperfectly. I think wrestling with in coming to the decision that he did in Smith. Stephanie lots to respond to here just to review some of where we are in this completely fascinating and centrally important history before 1963 courts generally refused to Grant religious exemptions from generally applicable laws all over the carve them out. From 1963 to 1990. We had cases called Sherbert and Yoder which generally said yes and presumptively granted religious exemptions. Although the government could deny them if there was a compelling interest and then in 1990 this really important Smith case. We're talking about return to the pre 1963 rule, essentially overruled Sherbert and Yoder and we said that the free exercise clause did not mandate the exemptions and now we're back to a world where Smith could be overturned. I got that summary from Eugene bollocks. Excellent piece in the bottle conspiracy. Will the court read the free exercise clause is often mandating religious exemptions from generally applicable laws.

Rosen: [00:37:45] So Stephanie and in the many things that you have to respond to you know, I'd ask you among them to focus in on this question if Justice Alito and five justices altogether overturn Smith, what rule would they Embrace and what were the consequences of that be? 

Barclay: [00:38:03] Yeah, that's a really great question. So and with the the point that you made about 1963 really being where we saw the beginning of this standard of granting exemptions, I think that that's right, but I think you have to understand that historical data point in the context of a larger story about the Supreme Court's development of its strict scrutiny jurisprudence and what strict scrutiny means is it was this is a test that the Supreme Court has developed for its modern constitutional jurisprudence as far as how it weighs competing interests when it is deciding whether or not we should uphold a constitutional right or not and a lot of Scholars describe 1963 as the year that strict scrutiny really in its modern form arrived on the scene not just for religious exercise, but also for other first amendment free speech and associational rights. NAACP v. Button is another 1963 case where we see that happening. So so the fact that we're not seeing a lot of religious exemptions before 1963 isn't shocking. We're not seeing a lot of application of this sort of strict scrutiny analysis. Something else that's going on historically that I think is important is at the founding period and the early jurisprudence of our country what the court typically did when it had an unconstitutional statute is it would just Strike It Down. The word that lawyers used to use this facially the court would just essentially say this is a void statute, but after the New Deal and after we had a our country shifted to try and preserve the rule of law more and to keep statutes in place where possible what became more common as a constitutional remedy was for the court to say we're going to keep this Statute in place. We're not going to say that it's void, but we are going to say when it's applied in this way. It's problematic. So we see that same sort of ignition being offered in the free-speech context. For example, we see the court saying this license plate law in this wooly case is still a valid law generally applied to everybody else. But applied to this particular person where they feel like, it's forcing them to speak a message. They don't want to speak. We're going to say that applications invalid and to Richard's Point. There's also exemptions from anti-discrimination laws in the Free Speech or Association will context where the court will say in a 1990 case of Hurley dealing with a- excuse me a st. Patrick's Day Parade. The court said even though anti-discrimination laws are generally valid. Here where the government was trying to force a private parade to allow any gay rights group that application was invalid and so we're not going to allow that application of the law and that's what I think. We might see the court consider returning to is at least a similar sort of test that is being applied right now in the free-speech context and we're even if there's an incidental burden or harm to someone's religious rights the same way in the Free Speech context. We would we would make the government provide strong justifications for doing that. Even if it's what we call intermediate scrutiny. We should at least provide that sort of protection in the religious context as well and. I agree with the hypo given earlier that if someone says my religion or my speech for that matter compel me to want to murder someone that's not going to be a winning case. Even if we apply strict scrutiny. It's going to be really easy for the government to satisfy strict scrutiny because because what it means when we're saying that the government has to apply strict scrutiny is not that the First Amendment rights automatically win. It just means that the government doesn't get a blank check. And the government has to prove that it has a good reason for doing what it's doing which is really important for protection of minority rights that often are overlooked in the legislative process and to the point about we can't we can't allow the protection of Rights if they're going to harm somebody professors Sunstein and Holmes have a great new book out. Well not brand new but a newish book out called the cost of rights that talks about how every single constitutional right we have imposes harm and cost on other people that and so if we were not willing to countenance any sort of harm from any sort of protection of Rights, we would have no rights and you see this in a lot of examples of cases where we protect the rights of religious minorities, for example when we protected the rights of Muslim prisoner to be able to grow a beard the government argued that was imposing costs and increasing risks of harm to other government employees and two other prison inmates and and yet we protected that anyway because the government didn't have a strong enough reason that it couldn't try and avoid that harm by doing other things. There are cases where Sikh temples have been trying to establish just it a place where they can worship and neighbors have complained and said you're going to increase traffic and noise and that's a harm to us. And so we wouldn't we wouldn't protect sick minority groups if we just said, okay, that's a harm so you don't get a religious right. And in the prison context, this will be the last example I give the government has also argued we shouldn't have to accommodate Jews who want to have a Kosher diet because that's an increased cost that takes away. Goods and benefits from other inmates. So the idea that we could just have a rule that you can have your constitutional rights as long as they don't inconvenience or harm or result in any sort of cost anyone sounds deceptively simple and appealing but what it means in practice is that we are completely eviscerating that constitutional right.

Rosen: [00:43:53] Thank you for all of those really Illuminating examples for exploring the effects of strict scrutiny on religious exemptions and also for the interesting recommendation of sunstein and holmes cost of rights book. Richard. I'd like to ask you to hone in on this question you identified which is sort of the most hotly contested religious liberty question of the day. If Smith were overturned how would that change the court's approach to cases in which people are seeking religious exemptions from anti-discrimination laws? At the moment most of those exemptions are brought under the federal statute called the religious freedom restoration act because Smith says you're not entitled to one. But if the court overturns Smith and subjected these claims to strict scrutiny for the government, would that make it easier for the baker who didn't want to make the wedding cake or for the religiously motivated employer who didn't want to Grant the contraception exemption to get an exemption from those generally applicable laws? And is that a good or bad thing?

Katskee: [00:44:56] So it shouldn't make those claims easier and more successful. But that would of course depend on what the Supreme Court does. The religious freedom restoration. Act was intended to restore pre Smith is free Smith free exercise jurisprudence, but it is often asserted today in ways that go way way way beyond what free exercise jurisprudence ever did the the rule that. Stephanie criticizes that that the free exercise clause protects protects the rights to believe and worship and practice your faith but does not give you a right to use your religion to impose your religion on others or to use government to impose your religion on others is the rule that comes out of pre Smith free exercise jurisprudence, and it's the rule that comes out in all the cases that Jeff you mentioned. Stephanie mentioned some that are about ensuring that I don't end up paying the price for your religious exercise that that's that that is something that you make that choice for yourself and you and you also foot the bill for it. That was the basic understanding that we have had since the beginning from when from when Madison drafted the first amendment's religion Clauses and also defended their precursor. The state of Virginia that Jefferson's bill for establishing religious freedom. The idea was this it is it is the government's job to stay out of matters of religion not to interfere with them not to not to be used as a tool to press once faced on another. So the idea of for instance the prison case that Stephanie mentioned it's called Holt against Hobbs being a Muslim prisoner who wanted to wear a beard the the prisoners argument was that the inmates argument was that if I had a medical reason for wearing a beard you would let me do it. And so why shouldn't my religious reason be at equally good and and the Government tried to say Well, they're all kinds of security risks that are involved in wearing a beard, but honestly, they weren't plausible. We filed a brief in the Supreme Court in support of that inmate and explained that the court properly looks at whether whether third parties are really burdened and harmed and put at risk by the imposition of somebody else's religion on them or not. And if not as in that case. Then there isn't a good argument against giving a religious accommodation. That's what that's what the the religious freedom restoration act was designed to do but it's but it's at the attempts to use it are so much broader. So to actually to get back to your specific question Jeff if the Supreme Court in fact restores something like pre Smith jurisprudence, it shouldn't make those claims claims like Masterpiece cake shops any better because at base what Masterpiece is saying is is the laws against against discrimination on the basis of race and sex and sexual orientation and disability shouldn't apply to me because I don't want them to because I have a religious motivation for not wanting to follow them and that's never been what free exercise is about. It's meant to be a a shield to protect my religious practice from the government not a sword to impose it on others.

Rosen: [00:48:55] Well, it is time for closing arguments in this completely fascinating discussion, which I'm just convinced me and I'm sure all of you dear We the People listeners how important it is that we understand these cases and follow the Supreme Court's exploration of them. So the question for closing argument is the obvious one should the Smith case be overturned? If it is overturned how big a deal would that be? And why should our listeners care about it? And the first closing argument is to Stephanie. 

Barclay: [00:49:25] Thanks, Jeff. And thanks Richard for this great conversation. I think that Smith was wrongly decided and I think that Smith makes our jurisprudence for religious exercise and anomaly and not in a good way. We're we're essentially treating religious protections as the redheaded stepchild of all of the First Amendment rights and and that makes no sense to me. It's not correct to say that the founders didn't anticipate that sometimes. Protecting religion would result in costs. There are some really important historical examples of that. One of the most prominent is the example of. Quakers who were Exempted from the draft at the time of the founding and that exemption resulted in very real costs for other folks who then had to take their place and go to war our Founders still thought that that was worthwhile because the conscience rights of the Quakers meant that they couldn't comply they do something that was going to violate their conscience. They would rather go to jail. And what what we understood historically was that forcing people to violate their conscience is a really high cost to society that often isn't that effective? And won't usually be very helpful for the government accomplishing its goals and there's just better ways for us to live in a pluralistic society where people have different deeply-held beliefs sometimes and often on controversial issues and the answer is not to let the government pick the one right answer and then punish the minority view the answer is to have a framework that allows us to have a plurality of voices a plurality of beliefs and that's what we do in the context of other First Amendment rights. That's what we do even in the context of anti-discrimination issues. We have seen how the court has dealt with the exact rule of what it would look like if Smith was overruled in the anti-discrimination context with the example of how the Supreme Court has dealt with that question when sometimes people have asked for protections for anti-discrimination laws for their speech concerns one case that I mentioned was the the parade case. There's another case dealing with Boy Scouts and there's another case dealing with the Jaycees and what we see from those cases is that sometimes the person with the First Amendment claim wins and sometimes they don't the government looks at what the how Grave the harm is going to be. The individual that the anti-discrimination laws were meant to protect if there's a monopoly if there's another way that that individual can get those services and if there and how broad the claim is going to impact them so the court has a workable way. I think for balancing very important competing interests and and the thing that I think is really valuable about a rule that allows us to balance those interests again is that it's not saying that religion is always going to win. It just means that especially when we have minority religious beliefs like other priests Smith cases in dealing Amish who also had costs that that would have impacted third parties including children who the government argued should have been able to go receive education which would have run contrary to the religious beliefs of the parents in that case. So when we have religious beliefs like minorities of Amish groups or six in the military for Muslim prisoners or Jewish groups, we stamp out those religious beliefs if the rule is just if it's a generally applicable law and your beliefs don't matter and I don't think the way to run a pluralistic nation like ours.

Rosen: [00:53:07] Richard the last word is to you and this question is the same, should the Smith case be overturned? If it were overturned how big a deal with that be and why should our We the People listeners care about this question?

Katskee: [00:53:22] Smith is a harsh rule accommodating religious belief is immensely important and it's particularly important actually for some of the reasons that Stephanie said at the very end that that when you leave questions to the to up to majority rule religious minorities are the ones who lose out. But accommodating religion has to be done in a way that doesn't roughshod ride roughshod over other people's religion or other fundamental rights. So revisiting Smith is is not at all a bad idea. But doing it in the right way is incredibly important and I fear that the the conversation that goes on so much of the time right now in in so many cases is taking. An extreme view that doesn't end up actually respecting the religious freedom of everyone because when when people get to impose their impose their religion and use government to impose their religion on others when they get to discriminate in the name of religion that that that that is not a recipe for the happy pluralism that I think Stephanie wants to present it as. That's the recipe for the Civil Strife the religiously-based Animus and the violence that has historically so marked and been fortunate product of religious pluralism religious pluralism is a tremendously valuable important thing but it but the way to respect it is to recognize that we all have a stake in it. We all have fundamental rights and. Tris and that all our beliefs matter so that necessarily means that there are there is a conditioning element on assertions that I get to impose My Religion on you The Establishment Clause provide the provides those we have to religion Clauses in the Constitution and to religion Clauses that work in tandem throughout the whole run of Supreme Court decisions and wrestling with all the problems of the day. Because of the fact that government truly respecting the religious freedom of everyone means taking a position that's neutral with respect to religion and neutral neutral among religious denominations and faiths. So any any revisiting of the Free Speech Clause, excuse me of the free exercise clause needs to be done with that concern in mind not because the free exercise clause is the stepchild of the bill of rights but because the way that we respect religious freedom recognizes that there are there are many and competing interests and Views and we have to find a way to live together in relative Harmony respecting each other's beliefs and respecting each other's differences and that doesn't happen when some get to use the tools of government to impose their faith on others. That's what's really at stake here. And that's what has to be looked at in any time you rethink how to deal with free exercise and Establishment Clause issues.

Rosen: [00:56:45] Thank you so much Richard Katskee and Stephanie Barclay for spreading so much light on this crucially important question of the future of the free exercise clause and the Free Speech clause and The Establishment Clause and the nature of religious exemptions. James Madison and the other framers believed that freedom of conscience was the quintessential unalienable right coming from God or nature and not from government because our beliefs about the nature of the Eternal are the product of our reason and reason cannot be coerced by government because it defines who we are as human beings. For contributing to the spread of reason, Richard, Stephanie, thank you so much for joining.

Barclay: [00:57:26] Thank you.

Katskee: [00:57:27] Thank you Jeff and thank you, Stephanie.

Barclay: [00:57:30] Richard it's been a pleasure. 

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