Freethought Matters: Daniel Mach

I'm

Annie-Laurie Gaylor. And I'm Dan Barker. We're co-presidents of the Freedom From Religion Foundation, which produces this weekly public affairs program.

Our

guest today will be Dan Mack. He's the director of the ACLU's program on freedom of religion and belief.

The

Freedom From Religion Foundation, which produces Free Thought Matters, is the nation's largest association of free thinkers. That's atheists, agnostics, and other non-believers. We invite you to join us in our vital work to keep our secular government free from religious influence. Become a member at FFRF.org or ask for a complimentary copy of our newspaper, Free Thought Today. Freedom depends on free thinkers.

Watch

prior episodes of Free Thought Matters on FFRF's YouTube channel.

Our

guest today, Dan Mack, runs the ACLU's program on freedom of religion and belief

and

is an adjunct professor of law at George Washington University Law School.

He's

an expert on the constitutional principle of separation between religion and government.

Dan

Mack recently spoke at FFRF's annual convention in San Antonio, Texas, where he accepted the $35,000 Henry Zumach Freedom From Religious Fundamentalism Award

on

behalf of the ACLU program on religious freedom and belief. And it was a pleasure to hear you speak, Dan Mack, and we're pleased to welcome you to Free Thought Matters.

It's great to be here. Thanks. Thanks a lot for having me.

So

when you gave your talk, we had to smile at your opening remarks where we were in San Antonio and you referenced the Alamo. Let's just take a peek at this clip, a little bit of your acceptance speech.

The

sun is shining today,

the

birds are singing, and now I'm going to

try

to ruin it all with some good old-fashioned pessimism

and

a little doomsaying thrown in for good measure. I guess it's

only

fitting as we stand a stone's throw away from

one

of the enduring symbols, for better or worse,

of

defeat and lost causes.

First,

though, I want to thank FFRF and you all for hosting such a wonderful event

and

for this generous honor. It's especially rewarding

coming

from one of our staunchest allies

in

this monumental struggle to preserve our basic constitutional rights.

We

at the ACLU can always count on FFRF,

whom

we view not only as our colleagues, but also our friends and really our family.

We

are with you walking hand in hand, co-counseling on cases,

or

joining together on amicus briefs, supporting each other's litigation,

or

collectively reminding the government that it should stay out of the religion business.

Amen. So, Dan Mack, I wouldn't have co-founded the Freedom From Religion Foundation and

be

one of its executive directors if I were a pessimist,

but

it's been a pretty grim year at the U.S.

Supreme

Court, hasn't it?

Yes, it has. Not just

a

year, but recent years have all been pretty grim. This court is on a mission, a religious mission, to

do

several things. Dismantle the separation between religion and government, and at the same time

elevate

the right of

religious

exercise, which we view as crucial. It's an important right. It's a fundamental right. But to elevate that right above all others, above all other concerns, interests, including not only the separation of church and state, but things like civil rights laws and equality.

Well,

that was a fascinating speech you gave to us in which, well, during your speech you talked about two really disturbing Supreme Court cases this year, Carson v. Macon, in which you said in your speech,

when

it comes to government funding of religion, the script has been completely

flipped.

Can you tell us about this flipping, this change that has happened?

Sure. It used to be the case for much of the court's history, at least over the last half century, at least, if not more, that the Supreme Court was concerned

about forced

taxpayer funding of religion, compulsory funding of religion. This is something that the Supreme Court rightly tied to a concern of the founders of our nation, who were also deeply troubled at the idea that taxpayers could be

forced

to support religious beliefs to which they do not subscribe, and frankly, even to those that they agree with. That's just something that the founders, and especially James Madison, Thomas Jefferson, the architects of the First Amendment,

they

were concerned about when they were focusing on the religion clauses and what we now call the Establishment Clause, which protects the separation of church and state. That's one thing they cared about, perhaps most. And the Supreme Court recognized that and was on guard for decades to make sure that

government

was not

funding

religion in ways that would not only harm government, but also harm religion.

And

now we are

doing

the opposite. At least the conservatives on the Supreme Court are not only accepting as permissible that kind of funding, telling the government, telling taxpayers that you can fund religion. It's not just that they may fund religion. We're now at a point where the Supreme Court is telling governments that they must fund religion.

And didn't Madison even say even two pennies

was too much? No, he said

three pence, not even three pence.

Oh,

three pence, yeah.

Should be

spent on religious education by taxpayers.

Exactly. And why was he concerned about that? I mean, you know, his point was that even that tiny amount, three pence, would open the door to much greater forms of

coercion

when it comes to religion. And again, he was worried not just about protecting the government, but about protecting religion. He was worried about the idea that different faiths would try to curry favor with whoever was in charge of the purse in the government, and that that would end up corrupting both religion and government.

And of course, many people allegedly came to this continent to avoid being tithed and being forced to give obeisance and taxes to churches that they disagreed with. So this is sort of a fundamental American principle,

isn't

it?

It

absolutely is. It's one of the bedrocks of this country is this right to religious liberty, which includes the very important piece of a right not to have the government shove religion down your throat and not to have the government extract

money

from you

to

pay for someone else's religion. And

that's

something that was central to what the founders were concerned about.

And then this past spring and summer, there was the Coach Kennedy case, which you talked about in your speech to our convention, Kennedy v. Bremerton. Can you tell us more about why this was a dangerous decision, as you termed it, and why you said the court's playing fast and loose with the facts?

So

in this case, the court

sided

with a public high school football coach

who

insisted on a right to pray after games, immediately after games on the 50-yard line. The school had done the right thing, and when they found out that he was doing this, they asked him to stop. They gave him ample opportunity to pray in many other places at many other times and in different ways. And he said, no, I need to do it here and now in front of everyone. Well, by the time it got up to the Supreme Court,

the

lower courts had previously described the coach's narrative about what exactly was going on and what really he was asking for. They described that as a deceitful narrative. He was just playing fast and loose. He wanted to do something much more than what he was pretending by the time he got up to the Supreme Court. And the majority on the Supreme Court bought it. And despite the clear evidence to the contrary, including, frankly, pictures, pictures that showed otherwise, pictures of him surrounded by players and other folks from the community, they ignored all of that. And they acted as if all he was asking for was some modest ability to pray quietly by himself

and

the facts showed otherwise. So we're now left with a situation where the Supreme Court has pretended the facts were otherwise. So

maybe

the decision doesn't go that far. If, in fact, the facts are really as this new deceitful narrative suggests, then maybe

he

didn't get very much. But the case is troubling because we all know what's really going on here. And this is part of a broader effort to break down the wall, the wall that separates religion and government and that protects both religion and government.

Well, I would agree that that was the silver lining of this dishonest decision, that it didn't really overturn,

you

know, there's 75 years of precedent against religious indoctrination in our public schools. But wasn't it this dissent, the dissent in this decision where I think it was Sonia Sotomayor actually felt

it

was incumbent to upload photographs in her dissent

that

showed

the

facts were contrary, that showed him praying with students? Was it Sonia Sotomayor?

Yeah,

so that, right, that was in the dissent. And it was also in some of the party's briefing. And the extreme conservative majority on the court just ignored it, pretended that that wasn't what was going on. This case is disturbing for many reasons. But among them, this is one area, religion in public schools, where even when the court

in

sort of recent memory has started to depart from fundamental principles protecting us all from government-imposed religion, this is the one area where they were sticking by their guns for the most part. And that's what's troubling, again, one of the many things that are troubling.

Well, this court seemed really concerned about the right of this coach, this public coach, to pray. But what about the rights of the athletes? The athletes, aren't they like a captive audience before this, you know, their coach who's religious?

Yes,

not only are they a captive audience, but they're a captive audience that

are

really at the mercy of their coach. If this were in class, the same would be true of teachers. This is not just some adult who happens to represent the state.

This

is the coach who gets to decide when you play, how much you play, what positions you get to play. And if you

choose

to separate yourself from a prayer circle being led by a coach or a teacher, again, we're talking about public schools, then you know what's going on there. Anyone who has played on a sports team knows what happens when you get on the wrong side of the coach. And so there's this added coercion. And it's really inherent, this pressure on students to participate. You know, the coach will say, well, no one has to join me. Sure. But you know who's joining and who isn't. And then you get to decide who plays and who doesn't.

Well, we've received complaints from players at the University of Wisconsin. The Catholic priest was coming in to pray, and they couldn't complain because it was their coach. They complained to us privately, but there was this pressure that they had to be part of the team and not, you know, not speak out.

Exactly. And in this case, again, talking about the evidence that was conveniently ignored by the Supreme Court majority, in this case, there was actual evidence that students were coerced and that they and their parents complained about this. And they said, my kid participated in this in the past, but only because they were worried about getting on the wrong side of the coach. So there was clear evidence in this very case that that's what was going on, this pressure.

Well, we

are talking with Dan Mack. And when we come back, we want to ask you about how the high court, why you're saying the high court is elevating freedom of religion over freedom from religion and other civil rights. We'll be back with more Free Thought Matters.

Hi,

I'm Ron Reagan, an unabashed atheist.

When

I first recorded that commercial back in 2014, being openly atheist in America was still fairly uncommon. Today, the fastest growing religious group in the country is the non-religious, especially among the young.

That

progress is heartening, but the religious pushback is fierce and the forces of Christian nationalism are well organized. Our progress won't continue unless we work together so that reason and our secular constitution will prevail.

That's

why I'm asking you to join the Freedom From Religion Foundation, the nation's largest and most effective association of atheists and agnostics working to keep state and church separate, just like our founders intended. Please join the Freedom From Religion Foundation today. Ron Reagan, lifelong atheist, not afraid of burning in hell.

My

name is Bill, and I'm an out-of-the-closet apatheist, meaning I don't really care what you believe, and I don't

really

think that you should care what I believe.

I

was raised in South Dakota in a strict Catholic family.

I

was an altar boy. I served mass

a

lot of Sundays twice. The priest gave us this little card that said, in case of accident, please call a priest.

I

don't really like that idea anymore. Since I left the church about 40 years ago. Now, if you find me alongside the road after an accident, please call

an

ambulance and an EMT.

It

is not okay to throw out

half

a century of precedent

simply

because you now have the votes.

It's

not okay to pretend to rely on some idea of what the founders of our nation originally thought about religious liberty and then completely forget about the fact that the key players in the adoption of the Constitution way back when and the First Amendment, they themselves recognized

that

religious belief or non-belief is too precious

to

be left in the hands of government officials.

And

it's not okay

for

politicians, judges, legislators

to

give a free pass

to

employers,

to

businesses or healthcare providers to discriminate in the name of religion and impose their faith on others.

It's

not okay

and

we will all

keep

fighting to make sure

they

know it.

Thank

you.

So,

is it okay for me as an atheist to say amen to that, what you just said?

We

really like that conviction and I guess that gives us a little bit of optimism. That was an excerpt of your excellent speech at our national convention at the Freedom From Religion Foundation. And let's remind viewers that Dan Mack is director of the ACLU's program on freedom of religion and belief. You've been there a lot. We see your name a lot over the years. How long have you been with the ACLU?

16 years.

16 years. Yeah. We keep seeing your name popping up on all these briefs and arguments. You're doing great work. We do

so

much of our work

in

cooperation with you folks and other allies in this fight. You know, all hands on deck for this one.

And it's just great

to be able to work with you.

Well,

can we talk about the Dobbs case and the situation with the Supreme Court scuttling abortion rights and, you know, saying this is no longer a constitutional right?

This is a case

that

on its face is not about religion, right? It's about a separate, crucial constitutional right.

But

there are implications for religion, undoubtedly,

in

the Dobbs case. By getting rid of

Roe

v. Wade, yet another precedent that has just been thrown out because the court now has the votes,

the

court is wading into an area that

has

so much religion surrounding it, the debates about this crucial right to choose, are often

motivated

by or even, you know, tacitly or expressly by notions of what does faith

tell

one about when life begins, for example. And here the court is essentially ignoring all of those people who are either not religious or are deeply religious in faiths that tell them that this is an important fundamental right, the right to choose, the right to control one's body. And many people feel that for deep religious convictions, yet those don't seem to matter to this court.

They

just want the conservative or the correct Christian interpretation of the law, don't they?

Right. And it's good that you pointed that out, that, you know,

we

often fall into the habit of thinking that this is

either

religion versus reproductive rights or Christianity versus reproductive rights. But as you just pointed out, it's not. And it's even within Christianity, there are so many denominations that feel strongly as a matter of religious doctrine, as a matter of religious conviction, that the right to choose should be available in this country.

So

you talked about religion being used, you know, weaponizing religion so that their privilege can be used to discriminate against others. And you mentioned a case that's coming up being heard by the Supreme Court. It's called, it's being informally called Masterpiece Cake 2. Can you talk about this case, you know, the first and the second case and what the court will be hearing and this whole idea

of

religious freedom being weaponized?

Yeah,

so the first actual Masterpiece Cake Shop case involved a claim right of a for-profit business, a bakery that is open to the public to choose not to serve certain members of the public. And in that case, the business said it didn't want to make wedding cakes for same-sex couples, even though it made the same cakes for everyone else. The court sided with the bakery in that case in a deeply divided opinion. But they had the votes and the court said for a variety of specific reasons that were-many of which were unique to that case, facts that were unique to the case, they sided with the bakery. Now we're back again. That case focused mainly on religious liberty arguments.

The new case is called 303 Creative.

And

this is also a business. This time it's a web designer who says that they don't want to have-they don't want to serve same-sex couples equally and they don't want to make websites for same-sex weddings, even though, again, they will make it for everyone else. Just like in the first case, there are a number of arguments that they're making, including religion and speech.

They

say they have a religious right to do this, to discriminate, and a free speech right to discriminate. This time around, though, in the new case, the Supreme Court is only going to address the free speech arguments.

Yeah,

it's such a bizarre case because this woman hasn't-she says she wants to do customized websites, wedding-she has templates right now, and she hasn't even created these custom websites. She doesn't even have customers doing this. So she doesn't have an injury. I mean, the Supreme Court is so difficult to get before on this question of

-

Yeah, why would

they take this case? ...the rights

of standing of your injury. So, yeah, what do you think is going on here?

Yeah,

I think this is one of many recent examples of the Supreme Court going out of its way to take cases to further a very specific

agenda.

They've done it in the past. They've done it with cases where if another right had come up, they would have said, no, this is not properly before us, either because nothing's happened yet or because the thing being complained about has actually been fixed. But the majority doesn't seem too bothered by any of that at this point. They want the cases they want. And they're even signaling to litigants when they deny cases at earlier stages, they're essentially requesting, please come back to us. We want to rule for you. Please come back to us a little later. So they're not only going out of their way to take cases. They're inviting them.

Yeah. So I think you're alluding to the shadow docket. We only have a few minutes left, but I wonder if you could briefly

talk

about that. And then let's talk about what the solution is, is one of the solutions, court reform.

So

some of these cases have come up in what you rightly referred to as the shadow docket. That's basically cases that go up quickly, that normally don't lend themselves to full decisions on the media issues, on the merits, their emergency motions, that kind of thing. But the Supreme Court has taken a bunch of those and done some mischief

in

that area, in cases where the parties haven't had a full chance

to

brief, let alone argue, the merits of their cases. And this is just another sign that the court is—has a plan. It has a plan. And the plan, unfortunately, appears to involve the dismantling of some crucial constitutional rights.

So

what can we do about it?

One step we can all take

is

to

focus

on elections and on candidates that

are

there to protect our constitutional rights. You know, we at the ACLU are nonpartisan, but we do care about the public officials

protecting

our rights. And, you know, that we—as we all know, there are many elections in which these issues are front and center. And in fact, in the midterms recently, there were a number of pretty high-profile candidates who expressly said that they want to fuse religion and government. They want the government to be their religious government and to promote their religious viewpoints and no others. And in a number of situations, those folks lost. So getting back to the point about

half

-full, half-empty optimism, there is something that we can take. For those of us who like—you know, who view these rights as important, we can take some comfort in that. We should not be too comfortable, however.

Okay, but a political solution is a long game. Some of these justices are young and they're on for a long time. We have about 60 seconds left. Is there anything else we can do about the court?

This—60 seconds might not give us nearly enough time. There are a lot of proposals that have been floated out there about what to do with court reform. And I think that's worth a discussion. That's one thing to look at. I think in addition to the courts, in addition to at the ballot box, we can do a lot of other things to ensure that everyone recognizes out there the importance of these issues. This is not something that's old

and

irrelevant. This is pressing and it's important right now, and we should make sure everyone knows about it.

Dan Mack is with the ACLU. Thank you so much, Dan, for joining us today.

Thank

you.

And

thank you for watching Freethought Matters. Because freethought matters. I'm Steve Pinker.

In

my book, Enlightenment Now, I show that the world has become a better place as reason has been overcoming superstition and tribalism.

But

the values of the Enlightenment are under attack. That's why I'm a proud member of the Freedom From Religion Foundation, the nation's largest association of freethinkers working to keep state and church separate. Please join me in supporting the Freedom From Religion Foundation to ensure that our government is driven not by religion,

but

by reason.

The

preceding program was a presentation of the Freedom From Religion Foundation, which is solely responsible for its content and does not necessarily reflect the views of this station.

Thank you. of the Freedom From Religion Foundation.